The Defence of Provocation
The Defence of Provocation
Provocation is a defence which reduces the offence of murder to manslaughter. Even though there may be an intent to kill it can be deemed that, in some circumstances, it is not appropriate to be classified as murder. It is not saying the killing is justified or excused. What it is saying is that the circumstances, the response (which resulted in the killing) is within the normal range of behaviour of what can be expected of the ordinary person and that it represents an acknowledgement of human frailty. This is the traditional view of the law.[1] When the penalty for murder was death, often provocation was a way of reducing the punishment from the death penalty to life imprisonment. In jurisdictions where there was a mandatory life sentence, there was also an argument for this defence to be in existence. [2] In this paper, the issues of the relevant stakeholders, previous provocation cases, and the law will be discussed in regards to any amendments or recommendations that need to be made in changing the current law in regards to the defence of provocation and how it will affect the Queensland society and its stakeholders.
One of the main issues with the defence of provocation include the timing between the act relied on as being provocative and the assault or killing is very important. The longer the time between the provocative act and the assault or killing the more difficult it is going to be to use the defence.[3] This time limit for the provocation defence has caused difficulties in the case of ‘battered spouse syndrome’. These are cases where one party to a relationship, usually the woman, puts up with serve physical, emotional abuse from her partner. Eventually she ‘snaps’ and acts violently towards her partner. Women in this situation, who have tried to use this defence, have often been unsuccessful in proving provocation. This applies only where the assault is proportional to the provocative act. So, killing a person because
Provocation is a defence which reduces the offence of murder to manslaughter. Even though there may be an intent to kill it can be deemed that, in some circumstances, it is not appropriate to be classified as murder. It is not saying the killing is justified or excused. What it is saying is that the circumstances, the response (which resulted in the killing) is within the normal range of behaviour of what can be expected of the ordinary person and that it represents an acknowledgement of human frailty. This is the traditional view of the law.[1] When the penalty for murder was death, often provocation was a way of reducing the punishment from the death penalty to life imprisonment. In jurisdictions where there was a mandatory life sentence, there was also an argument for this defence to be in existence. [2] In this paper, the issues of the relevant stakeholders, previous provocation cases, and the law will be discussed in regards to any amendments or recommendations that need to be made in changing the current law in regards to the defence of provocation and how it will affect the Queensland society and its stakeholders.
One of the main issues with the defence of provocation include the timing between the act relied on as being provocative and the assault or killing is very important. The longer the time between the provocative act and the assault or killing the more difficult it is going to be to use the defence.[3] This time limit for the provocation defence has caused difficulties in the case of ‘battered spouse syndrome’. These are cases where one party to a relationship, usually the woman, puts up with serve physical, emotional abuse from her partner. Eventually she ‘snaps’ and acts violently towards her partner. Women in this situation, who have tried to use this defence, have often been unsuccessful in proving provocation. This applies only where the assault is proportional to the provocative act. So, killing a person because