Homicide Law Reform, Gender and the Provocation Defence

A Comparative Perspective

Kate Fitz-Gibbon

• Publisher: Palgrave Macmillan
• Year: 2014
• ISBN:
  9781137357557
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book critically examines the operation of the partial defence of provocation in a range of comparative international jurisdictions. Centrally concerned with conceptual questions of gender, justice and the role of denial in the criminal justice system, Fitz-Gibbon explores the divergent approaches taken to reforming the law of provocation.

Part I

The Problem of Provocation

1

Male Honour and the Provocation Defence

From the 17th century the partial defence of provocation was introduced as a concession to human frailty; an understanding among members of the community that in some cases the perpetration of lethal violence should not be punishable by death. The defence was formulated to reflect the perceived importance of one’s honour and in particular the ‘white Western notion of male honour’ (Carline, 2010, p. 80; Horder, 1992). Consequently, in its initial operation the defence largely applied to cases of lethal violence arising from a threat to a person’s, typically male, honour. Within this, in the original operation of the defence (following R v Mawgridge (1707) 84 ER 1107), there were four categories of accepted provocative conduct: 1) provocation resulting from grossly insulting assault; 2) responding to a ‘friend, relative or kinsman being attacked’; 3) ‘seeing an Englishman unlawfully deprived or his liberty’; and 4) ‘seeing a man in the act of adultery with one’s wife’ (Horder, 1992, p. 24). Within these four scenarios provocation provided a legal framework through which the male need to defend one’s honour could be understood, as English legal scholar Anna Carline (2010, p. 82) describes:

While the law recognised that a man may feel anger and retaliation may result, there was also a societal expectation that a man of honour would retaliate in anger, in order to restore the honour he had lost.

In the 21st century, however, this ‘expectation’ described by Carline has waned and debate has emerged as to whether the partial defence of provocation continues to reflect current community expectations of ‘ordinary’ and ‘reasonable’ human behaviour. These questions have often focused upon the contexts of lethal violence within which males raise a defence of provocation, including where provocation is used to explain away the lethal actions of a jealous and controlling husband (as explored in Chapter 2) or in the case of this chapter, where provocation is used in defence of homicides perpetrated to restore challenges to a man’s honour.

In critically examining the applicability, and use, of provocation in defence of men who kill in the context of a slight to their male honour, this chapter focuses upon three scenarios of male perpetrated lethal violence: crimes of passion, the homosexual advance defence and cultural defences of provocation. To provide an understanding of how the defence continues to be used or, arguably, abused in these three contexts the analysis draws on key cases to provide an in-depth illustration of the operation of provocation in these scenarios. In doing so, it challenges the current applicability of the defence given its propensity to uphold outdated notions of male honour, women as property and the legitimisation of violence against the homosexual or cultured ‘other’.

Adultery and ‘crimes of passion’

Central to the historical foundations of the provocation defence is the notion of women as property and the need to respond to an act of adultery in a way that restores honour to a male scorned. As noted previously, in the 17th century and after (following the 1707 decision in Mawgridge), adultery was established as one of four contexts to which the provocation defence applied to reduce what would otherwise be murder to manslaughter. The rationale behind the applicability of the provocation defence to what are essentially ‘crimes of passion’, was described in the original judgment by English Chief Justice, Lord Holt:

When a man is taken in adultery with another man’s wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for jealousy is the rage of man, and adultery is the highest invasion of property. (R v Mawgridge (1707) 84 ER 1107, at 1114–115)

Expanding on this, Lord Holt justified that this category indeed represented the gravest form of provocation, stating that ‘a man cannot receive a higher provocation’ (Mawgridge, per Holt CJ at 1115). Linking this view back to the notion of male honour, Carline (2010, p. 82) argues:

The development of the provocation defence was informed by patriarchal attitudes which constructed women as male property and also recognised that a man may be led to commit homicide due to the sexual behavior of his wife or daughter. Indeed this was deemed necessary if he was to retain his status as a man of honour.

Interestingly, it was not until the 19th century that the use of the provocation defence in response to an act of adultery extended to a man killing his wife, as opposed to his wife’s new lover (Leader-Elliott, 1997). In the centuries since, however, cases involving a female victim either caught in the act of adultery or accused of infidelity have attracted significant debate and in many cases have driven momentum for law reform (see the analysis in Chapter 2).

While it would be reasonable to assume that the classic ‘adultery’ provocation case is a relic of the 18th century, an analysis of the successful use of the provocation defence in Australia and the UK over the last five years reveals otherwise. An examination of recent case law in NSW, for example, demonstrates that in the period January 2005 to June 2013 there were 18 cases of provocation manslaughter finalised in the NSW Supreme Court (NSWSC) of which three cases involved a male offender who had killed a male victim who was in a sexual relationship with the offender’s estranged wife (see R v Won [2012] NSWSC 855; Regina v Munesh Goundar [2010] NSWSC 1170; Regina v Ronnie Phillip Lovett [2009] NSWSC 1427). Interestingly, in all three cases the conviction was the result of a jury verdict following a contested trial (see Appendix C). While three of 18 cases may not seem overtly significant at face value, it is important to question how many of these cases the community should tolerate before championing change. Undoubtedly the message sent in just one case is problematic enough.

Interestingly, when asked to reflect on the successful use of the provocation defence in this context, one member of the NSWSC judiciary explained that ‘where the deceased was carrying on with the accused’s wife there would have been a lot of sympathy for the accused from a lot of members of the jury’. While this is useful in that it provides some insight, from a senior member of the Supreme Court judiciary, into the underpinnings of jury verdicts, in these cases it is highly problematic given the disjunct between the ‘sympathy’ given by jurors and the outrage by the community in these cases. This disjunct between juror views and community expectations is further explored in Chapter 11.

Beyond NSW, the continued acceptance of provocation in defence of men who kill in response to adultery was evident in England and Wales in the period immediately prior to the 2010 reforms and the replacement of provocation as a partial defence (see Chapter 6). The 2009 Cranston case, for example, illustrates the recent acceptance of ‘crimes of passion’ within the remit of the defence. In June 2009, William Cranston evaded a conviction for murder when he was found guilty at trial of manslaughter by reason of provocation and subsequently sentenced at Kingston Crown Court to a minimum of 12 years’ imprisonment. In a classic case of sexual jealousy, on 7 September 2008 Cranston stabbed to death his partner, Kay Morton, and his friend, Paul Wilkins, after he found them engaging in sexual activity while all three were sleeping the night on a narrowboat. Prior to his use of lethal violence, Cranston, Morton and Wilkins had spent the night drinking together at a pub near where their boat was moored. Upon returning to the boat they continued to drink and ingested some cannabis before Cranston retreated to bed. He then woke during the night and discovered Morton and Wilkins having sex. In response Cranston claimed to have lost his self-control during which he killed his wife with a single stab wound to the heart and killed Wilkins with multiple wounds. In his ‘999’ call to the police immediately afterwards he stated, ‘Yes, it is me. I found my wife and one of my best friends shagging and I lost my rag and I just stabbed them’ (as cited in Hodge, 2009).

Over the course of the seven-day trial, Cranston gave evidence to the jury that upon discovering his wife and friend having sex he was ‘just dumbstruck. I couldn’t believe what had happened’ (as cited in Hodge, 2009). While he did not deny responsibility for the two deaths, the defence raised the possibility that Cranston had lost his self-control and been provoked to kill. In addressing the jury, the Crown prosecutor, Russell Gumpert, stated:

The discovery of one’s partner in an act of sexual betrayal is not something which would cause a reasonable person to have a sudden and temporary loss of self-control which led to the stabbing of two people.

The jury, however, disagreed and returned a verdict of manslaughter. At sentencing in the Kingston Crown Court on 22 July 2009, the judge noted that while the prosecution had ‘all but conceded’ that Cranston had been provoked upon discovering the victims, they had urged the jury to consider ‘whether a person having the powers of self-control to be expected of an ordinary, sober person of your age and sex would have been provoked to lose your self-control and do as you did’. Bound to sentence in line with the jury’s verdict that Cranston had behaved as an ordinary man would, Judge Anthony Leonard QC sentenced Cranston to 12 years for manslaughter. The jury’s decision to convict Cranston of manslaughter, rather than murder, has since been described by Susan Edwards (2010, p. 231) as reigniting ‘the in flagrante delicto defence’.

The continued acceptance of ‘crimes of passion’ within the confines of the provocation defence in Australian and UK jurisdictions represents a disturbing trend. Given the significant levels of violence typically involved in such cases, the intention to kill on the part of the offender and the dominant motive of revenge or jealousy, it is questionable why such instances of lethal violence are warranting of a partial avenue of understanding, such as provocation. It is important to question why despite the fact that in some cases over two decades of review the law still provides an avenue through which such acts are represented as less than murder. Linking back to the overall theme of this chapter, the operation of the provocation defence in this context arguably provides a legal legitimisation of the masculine need to defend one’s honour in the face of adultery. As Carline (2010, p. 83) argues:

Although the law is no longer explicitly connected to notions of male honour and female shame, the modern-day [provocation] defence is informed by a societal and legal expectation that a man of honour will respond with homicidal anger if his wife commits adultery. Hence the law has for many years mitigated certain forms of ‘honour killings’.

The categorisation of these cases as a form of ‘honour killing’ mirrors the earlier description of the Victorian Ramage case (Kissane, 2004a – see the case analysis in the Introduction). However, this short analysis of recent cases in England and NSW reveals that there is undoubtedly nothing ‘honourable’ about these lethal acts. It is important to challenge why the criminal law continues to provide an avenue away from murder for the actions of men who use the threat of relationship dissolution to partially justify the perpetration of lethal violence.

The homosexual advance defence

The successful use of the provocation defence in cases involving a non-violent homosexual advance similarly ties back to the historical foundations of the defence as a partial excuse for lethal violence perpetrated to protect masculine honour.¹ The interaction between criminal law and lethal violence perpetrated in response to a non-violent homosexual advance is well captured by Golder (2004, p. 1):

For some years now, the familiar story of a (homicidal) heterosexual hero overpowered by a predatory ‘poofter’ has played in [sic] critical acclaim in Australian criminal courtrooms. Judges and juries alike have listened with unquestioning awe to talks of bodily impeachment and male honour, as defence barristers have constructed this primal, almost cinematic, narrative of Australian heterosexual masculinity under attack.

What Golder describes above is the mobilisation of a ‘homosexual advance defence’ (HAD), also known as the ‘gay panic’ defence. Despite not being specifically legislated for, the concept of the HAD is evident in homicide case law internationally. HAD first emerged in the United States (US), albeit under the label of ‘homosexual panic defence’ (HPD), in trials involving the defence of insanity or diminished responsibility (Golder, 2004; Tyson, 2013).² In relation to the provocation defence, it is evident in the UK (where it is often referred to as the ‘Portsmouth’ or ‘Guardsman’s’ defence [Power, 2006]), and throughout Australian case law (Blore, 2012). The successful use of provocation as a partial defence in HAD cases has rightly prompted academic inquiry and community concern in several Australian and international jurisdictions (Howe, 1997; Golder, 2004; Mack, 2013; Stratham, 1999; Tomsen, 2002; Tomsen & Crofts, 2012).

The use of the provocation defence in this context engenders significant concerns surrounding the law’s legitimisation of homophobia, the ongoing stigmatisation of homosexual behaviour and the responsibility of the criminal law to establish clear parameters for unacceptable masculine violence. As Bronwyn Stratham (1999, p. 301) describes it the HAD

Condones – it re-inscribes as ‘justifiable,’ as ‘ordinary’ – a reaction of extreme and excessive violence premised upon feelings of hatred, fear, revulsion and disgust, similarly re-inscribed as ‘justifiable’ and ‘ordinary’. It interprets, discursively and doctrinally, a non-violent homosexual advance as inherently ‘provocative’ (in both senses of the word) whereas non-violent non-homosexual advances are never so interpreted.

Consequently, the successful use of provocation to reduce to manslaughter ‘gay panic’ killings undoubtedly blurs distinctions on what constitutes partially justifiable violence. In doing so, it problematically depicts to the community that this is the response of an ‘ordinary’ man. As Tomsen and Crofts (2012, p. 426) describe it:

In these circumstances, an aggressive response defending the vulnerability of heterosexual identity by reacting against both sexual advances on a masculine body and the dishonour of objectification is conceived as likely among ordinary men.

In illustrating the dangers of HAD cases, the trial of Malcolm Green in the NSWSC and the subsequent judgment of the Australian High Court is perhaps the most frequently cited HAD case within the Australian context (Green v The Queen [1997] 191 CLR 334). On 20 May 1993, 22-year-old Malcolm Green bashed and stabbed a 36-year-old male friend, Donald Gillies, to death with a pair of scissors after he allegedly got into bed naked with Green and made a non-violent sexual advance. At the time of the homicide, Green and Gillies had known each other for approximately six years. Both had spent the evening drinking heavily and Green alleged that after getting into bed with him, Gillies began ‘touching the younger man on his buttocks, groin area and penis’ (Tomsen, 2002, p. 74). Green responded by brutally bashing and stabbing him to death. After the attack, Green was taken to the police station by his brother-in-law. Drawing from the trial transcript, Australian legal scholar Stephen Tomsen (2002, pp. 74–5) describes the following interaction:

On his arrival MG [Malcolm Green] told police ‘I have killed [DG] because he tried to root me’ and, soon after that, ‘he did worse to me. I killed him and I will tell you about it. He put it on me and I just snapped’.

This assertion is heavily cited and critiqued in HAD-focused research, and as Golder (1994, p. 33) argues, it advances the idea that a homosexual advance is ‘a fate (literally) worse than death’. At trial, the defence used evidence of Green’s ‘disturbed upbringing’ where his sisters had been assaulted by their father to partially explain his reaction to the alleged advance (Tomsen, 2002; Tomsen & Crofts, 2012). However, the trial judge, Justice Adabee, ruled that evidence relating to prior abuse of his sister was inadmissible. Green was subsequently convicted of murder, and while Green appealed against this initial conviction to the NSW Court of Appeal, that appeal was rejected.

In 1997, however, on appeal to the High Court of Australia, Green’s conviction for murder was overturned. In a 3:2 majority decision the High Court ruled that evidence of the abuse to Green’s sisters should not have been excluded in the original NSWSC trial. In the resulting judgment, Justice Brennan stated:

It was essentially a jury question, a question the answer to which depended on the jury’s evaluation of the degree of outrage which [Green] might have experienced. It was not for the Court to determine questions of that kind, especially when reactions to sexual advances are critical to the evaluation. A [jury] would not be unreasonable because [they] might accept that [Green] found [the victim’s] conduct ‘revolting’ rather than ‘amorous’. (Green, per Brennan J at 346)

In contrast, however, in his dissenting judgment, Justice Kirby considered the issue from the vantage of a female defendant, questioning what would happen if every woman who expressed a non-violent sexual advance killed her advancer:

Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message tha...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• List of Tables
• Acknowledgements
• List of Abbreviations
• Introduction: The Partial Defence of Provocation
• Part I: The Problem of Provocation
• Part II: Addressing the Provocation Problem – Divergent Approaches to Homicide Law Reform
• Part III: The Intended and Unintended Effects of Homicide Law Reform
• Conclusion: The Partial Defence of Provocation and Lessons for Law Reform
• Appendices
• Appendix A
• Appendix B
• Appendix C
• Appendix D
• Appendix E
• Notes
• Bibliography
• Cases Index
• General Index