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Provocation in New South Wales : the need for abolition

journal contribution
posted on 2012-07-01, 00:00 authored by Kate Fitz-Gibbon
Over the past two decades significant debate has emerged surrounding the operation of the partial defence of provocation. Such debates have led to its abolition in several Australian and international jurisdictions where Government and Law Commission bodies have argued that provocation has operated in a gender biased way that is no longer reflective of community values and expectations of justice. In contrast to the Australian states of Tasmania, Victoria and Western Australia, who have transferred consideration of provocation to sentencing, New South Wales (NSW) has retained provocation as a partial defence to murder. Drawing upon in-depth interviews conducted with legal stakeholders and an analysis of recent case law, this article considers whether the operation of provocation in NSW is still in the best interests of justice, and, specifically, whether in practice it privileges one gender above the other. This research concludes that the continued operation of provocation in NSW raises key issues surrounding the legitimisation of male violence against women, the denial and minimisation of the harm caused by lethal domestic violence, and the continued inability of the law to appropriately respond to women who kill in the context of prolonged family violence.

History

Journal

Australian and New Zealand journal of criminology

Volume

45

Issue

2

Pagination

194 - 213

Publisher

Sage Publications

Location

London, England

ISSN

0004-8658

eISSN

1837-9273

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Copyright notice

2012, SAGE publishers