Julia Tolmie: Defence of provocation has its place

What if Sophie Elliott's mother had killed Clayton Weatherston? Photo / The Press, pool

The Crimes (Abolition of Defence of Provocation) Amendment Bill is through its first reading and has been referred to a select committee. If it is passed, then the partial defence to murder will no longer exist.

The spectacle of Clayton Weatherston using the defence to argue that he slaughtered his ex-girlfriend because he lost control when she swore and came at him with a pair of scissors is likely to have provoked public sympathy for the proposed reform.

There are several problems with the defence of provocation. One is that it is too complicated in its current form for juries to understand and apply correctly.

Another is that the defence appears to be commonly argued in an attempt to excuse what is really just domestic violence. Over and over again the defence is invoked in response to a man losing the plot and killing his girlfriend or wife who is trying to leave the relationship and/or has become involved with someone else. As the Weatherston case illustrates, whether or not the defence is successfully invoked, tens of thousands of dollars of taxpayers' money is expended in letting the accused portray the victim as partially responsible for her own fate.

Another common case in which the defence is run, and it appears with some success, is where a gay man allegedly made a sexual advance to the accused, who responded with a homicidal rage.

There is something wrong with us, as a society, trying to discourage domestic and homophobic violence on the one hand, while using a criminal defence to excuse people who embark on its most horrible forms.

Using the defence of provocation in such cases is also arguably a corruption of the rationale for having the defence to begin with. Provocation is available as a concession to human frailty - a recognition that everyone, if the circumstances were extreme enough, could potentially snap and kill. Therefore it needs to be established if the defence is to be successful both that the accused lost emotional control and killed in response to the victim's provocative acts, and that an ordinary person in their circumstances with their characteristics (but with ordinary levels of emotional self-control) would have similarly lost control.

The problem here is that emotional and sexual rejection, as well as sexual advances, even indecent assaults, are not extreme circumstances. They are common human experiences and, although emotionally painful, ordinary people do not respond to them with murder.

So does this mean that we should we get rid of the provocation defence? I would argue, to the contrary, that we should first simplify it so it is easier to apply and automatically exclude it from being left to the jury in these kinds of cases. Only if such reform proves impossible should we get rid of it.

The defence of provocation reduces a murder conviction to manslaughter. There are cases where a person has killed in response to circumstances that are so horrible that most people would not want to label the person a "murderer" and would not want them to serve life imprisonment (still the presumptive sentence for murder).

For example, in Australia a woman survived 20 years of what can only be described as torture at the hands of her husband, to finally learn he had regularly raped their daughters since they were 6 years old. She snapped in response and was allowed to argue the defence of provocation.

In New Zealand the provocation defence was successfully run by a doctor who snapped in response to his mother begging for relief from the pain of the final stages of her terminal bowel cancer and sped up her inevitable death.

Would we want Sophie Elliott's mother, if she had attacked Clayton Weatherston when she opened her daughter's bedroom door to find him stabbing her lifeless body, to be labelled a murderer and receive life imprisonment? Such a scenario, however unlikely, does illustrate the sort of extreme circumstances that we should reserve for the defence to operate.

We can reform the defence of provocation to prevent it from being run in particular cases. The criminal law has always excluded certain things from amounting to provocation because, as a matter of policy, we don't want people being able to argue the defence in response to them.

We could exclude, in this manner, the range of painful life experiences we expect people to be able to cope with without committing homicide - such as, for example, emotional and sexual rejection.

Obsessive jealousy, extreme self-preoccupation, a particularly bad temper, a tendency to be controlling and violent, even if they are dressed up as mental health issues or syndromes, are characteristics that we, as a society, might also expect people to control or manage in themselves. They should therefore not be taken into account as personal characteristics when applying the ordinary person test for the purposes of provocation.

* Associate Professor Julia Tolmie is on the faculty of law at the University of Auckland.