Overview
The defense of provocation was first developed in English courts in the 16th and 17th centuries. During that period, a conviction of murder carried a mandatory death sentence. As such, the need for a lesser offense arose. At that time, not only was it seen as acceptable, but it was socially required that a man respond with controlled violence if his honor or dignity were insulted or threatened. It was therefore considered as understandable that sometimes the violence might be excessive and end with a killing.
During the 19th century, as social norms started to change, the idea that it was desirable for dignified men to respond with violence when they were insulted or ridiculed started to weaken, and to be replaced with the view that while such responses may not be ideal, they were nevertheless a normal human reaction resulting from loss of self-control, and, as such, they deserved to be considered mitigating circumstances.
During the end of the 20th century and the beginning of the 21st century, the defense of provocation, and the situations in which it should apply, have led to significant controversies, with many condemning the whole concept as an anachronism, and arguing that it contradicts contemporary social norms that people are expected to control their behavior, even when angry.
Today, the defense is generally controversial, because it appears to enable defendants to receive more lenient treatment because they allowed themselves to be provoked. Judging whether an individual should be held responsible for their actions depends on an assessment of their culpability. This is usually tested by reference to a reasonable person: that is, a universal standard to determine whether an ordinary person would have been provoked and, if so, would have done as the defendant did. Thus, if the majority view of social behavior would be that, when provoked, it would be acceptable to respond verbally and, if the provocation persists, then to walk away, that will set the threshold for the defense.
Another controversial factor of this defence, especially in UK law, is that the provoked must have carried out their act immediately after the provocation occurred, otherwise known as a "sudden loss of self control". The controversy comes when it is asked "what is immediate". This argument on the grounds of time still occurs and has caused many defendants, particularly women, to lose their cases on this ground, as they will often wait (in wife-battering cases) until the husband is asleep. Shown in R v Ahluwalia 1992. This led to the enactment of a new defence of "loss of control" (see Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (London: Sweet & Maxwell, 2012) at Chapter 22.) The new defence removed the "sudden" requirement, as it wanted to cover battered women who lose control over a long period, but as Baker ibid, points out, it will probably not succeed in achieving that aim. The new loss of control defence found in ss. 54-55 Coroners and Justice Act 2009 also removed sexual infidelity as a qualifying form of provocation, but in a recent controversial decision by Lord Judge in R v Clinton 1 Cr App R 26 in the Court of Appeal, Lord Judge interpreted the new offence as allowing for sexual infidelity to count under the third prong of the new defence (see Baker & Zhao 2012). R v Clinton 1 Cr App R 26 has received heavy criticism from academics, see Baker & Zhao, "Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity," Journal of Criminal Law, Vol. 76, pp. 254, 2012.
Provocation as a partial defence for murder came into spotlight in New Zealand during 2009 following the trial of 33-year-old university tutor Clayton Weatherston, with calls for its abolition except during sentencing. On 9 January 2008, Weatherston stabbed to death university student and girlfriend Sophie Elliott in her Dunedin home. During his trial, Weatherston used provocation as a defence to murder and claimed it was manslaughter. He was found guilty of murder and sentenced to life imprisonment with a 17 years non-parole period. In response, the New Zealand Parliament introduced the Crimes (Provocation Repeal) Amendment Bill, which repealed Sections 169 and 170 of the Crimes Act 1961 and therefore abolishing the partial defence of provocation. The bill passed its third reading 116-5, with only ACT New Zealand opposing the bill, and became law effective 8 December 2009. Although the defence was removed, it could still be used for cases prior to 2009. In May 2010 Moliga Tatupu-Tinoa'i was convicted of murdering his wife at a service station in Wellington. Mr Tatupu-Tinoa'i's lawyer Mike Antunovic attempted unsuccessfully to run the partial defence of provocation.
In Australia, Tasmania became the first state to abolish the partial defence of provocation in case of murder which acted by converting what would otherwise have been murder into manslaughter. The next state to abolish it was Victoria, in 2005; followed by Western Australia in 2008. ACT and Northern Territory have amended the laws to exclude non-violent homosexual sexual advances, in 2004 and 2006, respectively. In Queensland the partial defence of provocation in section 304(1) of the Criminal Code was amended in 2011, in order to "reduce the scope of the defence being available to those who kill out of sexual possessiveness or jealousy". In New South Wales, the law is currently under debate, following several recent high profile cases where the partial defence was used to obtain manslaughter convictions.
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