The recommendation by the Victorian Law Reform Commission in November to abolish provocation as a defence for killing is a victory for those campaigning for its abolition. The regressive nature of provocation in defence had again ben highlighted with the outrageous failure of a jury on October 30 to convict James Ramage of the murder of his wife, Julie, instead finding him guilty of the lesser charge of manslaughter.
Unfortunately, the Ramage case is one of many where men successfully use provocation as a defence for killing partners or ex-partners. Forty percent of homicides in Australia are domestic violence-related murders, the majority of which involving the killing of a woman by her male partner or ex-partner.
Julie Ramage had suffered three decades of physical and mental abuse at the hands of her husband. She finally left him in June 2003. The months leading up to her murder were some of the happiest moments of her life. She agreed to a meeting with her husband at their former family home, which was being renovated, assuming they would not be alone as the builders would be there. However, her husband told the builders to leave early for the day as he wanted to be alone with his wife. Julie Ramage was not seen alive again.
In his statement to police James Ramage claimed that his wife had been cold and that she had dismissed and taunted him. She had told friends that she feared for her safety if she was alone with her husband. On the day she was killed, with no independent witnesses, Ramage says his wife belittled and hurt him — enough, apparently, to provoke him to kill her.
In 1987, in another much publicised case, Vicki Cleary was murdered by her ex-partner, Peter Keogh, after months of stalking. Her story is the subject of Just Another Little Murder, written by her brother, Phil Cleary. The charge against Keogh was reduced to manslaughter after he claimed he suffered from alcoholism, even though he was not drinking at the time he attacked Vicki Cleary. Keogh claimed Cleary had provoked him by swearing at him.
When women have claimed provocation as a defence they have rarely been successful. For example, Heather Osland was found guilty of the murder of her violent husband and sentenced to 14 years imprisonment. And even though it was her son who wielded the weapon that killed Osland's husband, her son was acquitted.
The argument that provocation should be maintained as a defence in domestic murder cases rests on the premise while in principle it is gender neutral, it can be utilised by women who, in reaction to years of violent abuse, kill the perpetrator. Defenders of the status quo cite statistics showing that women's pleas of provocation were more likely to be accepted than men's pleas. However, these claims ignore the reality of the circumstances in which men and women kill their partners or ex-partners. Generally, women kill their partners in response to systematic physical abuse from their male partner, whereas men overwhelmingly kill their women partners out of sexual jealousy (possessiveness). These are Western societies' "honour" killings.
The debate over gender bias must go beyond abstract statistics. As the Osland and Ramage cases demonstrate, men are more successful than women in using provocation as a legal defence for killing a partner or ex-partner. For women, the argument of self-defence has been shown to be a better option. The problem, however, is that legal definition of self-defence is very limited when applied to most cases of long-term physical and mental abuse of women by their male partners.
The defence of provocation says everything about how women live and survive today. As Jenny Morgan, from the law faculty at the University of Melbourne, observed in the December 30 Age: "The defence of provocation is fundamentally about values and the values it has supported include misogyny and it is time to change." Law should reflect the reality of our lives — in which men and women are socially unequal — rather than a mythical theory that assumes that because men and women are regarded as legally equal they are in practice, in real social life.
Erin Cameron
[The author is a member of the Socialist Alliance and the Democratic Socialist Perspective, an organised current within the Socialist Alliance.]
From 91×ÔÅÄÂÛ̳ Weekly, January 26, 2005.
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