Monday, 7 September 2009

Quick hit: Should provocation be modified rather than abolished?

Very interesting opinion piece by UOA Law lecturer Julia Tolmie in this morning's Herald:
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.
Click through for the whole article, this is a snip from part way through the first half.

Tolmie was my lecturer for part of Criminal Law at Auckland (a compulsory Stage II law paper) some years ago, and I recall that she was considered something of an expert in the area of domestic violence leading to murders (what used to be called "battered wives syndrome". I found it particularly thought-provoking to consider Tolmie's question in relation to Sophie's mother - if Mrs Elliott had killed Weatherston after coming in to the room, would that be ok provocation?

Personally I'm not sure where provocation of the nature Tolmie argues and temporary loss of insanity begins.

1 comment:

David said...

I'm not in favour of povocation full stop. Self defence is the only acceptable defence to intentionally killing another person, any other reason is just an excuse for loss of control.

I can accept there can be mitagating circumstances, but this is for the Judge at sentencing.