The controversial partial defence of provocation has now been abolished in three Australian jurisdictions, including Victoria. Recent developments in Victorian case law would appear to suggest a continuation of ‘excuses’ for male anger and violence towards women that position the woman victim as to blame for her own death. This article considers that the 2005 abolition of provocation was only in part designed to redress the problem of victim-blame. The decision was accompanied by other key changes introduced into the Crimes Act 1958 (Vic) to make it easier for women who kill in the context of family violence to successfully claim self-defence and ‘excessive self-defence’ (defensive homicide). Drawing on recent developments in Victorian case law since the 2005 amendments, this article argues that the claim that provocation’s victim-blaming narratives are being mobilised in the guise of other defences merits closer analysis. It also argues that provocation’s critics must continue to expose the gendered (and raced) assumptions underlying the other defences to homicide, such as self-defence including manslaughter and the new offence of defensive homicide. Otherwise there is a risk that provocation’s victim-blaming narratives could end up rewritten in such a way that support an argument for a reduction in culpability in cases where there is a history of violence against the woman victim, which is likely to result in claims that little has changed.
Field of Research
160203 Courts and Sentencing 160203 Courts and Sentencing 180110 Criminal Law and Procedure 160899 Sociology not elsewhere classified
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