Professor Rosemary Hunter
University of Kent
Dr Danielle Tyson
In 2005 the Australian State of Victoria abolished the defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. In a systematic examination of post-provocation judicial sentencing decisions, we found that while elements of victim-blaming and arguments based on provocation remained present in defendants’ pleas in mitigation, they were generally rejected by trial judges. Beyond this, we identified a greater emphasis by defence counsel on mental illness or impairment as an avenue for offenders to argue for mitigation in sentencing. The use of impaired mental functioning as an explanatory narrative in these cases requires further analysis. In this paper we present preliminary findings from a study of the role of mental illness and/or impairment in sentencing in cases of domestic (and, for comparison, non-domestic) homicide. Our analysis suggests that while the 2005 reforms have had some success in challenging the gendered assumptions underpinning provocation’s victim-blaming narratives, it is possible that in the absence of the provocation defence, these assumptions may be redeployed as part of the defendant’s mental health narrative.
Rosemary Hunter is Professor of Law and Socio-Legal Studies at the University of Kent, UK. The co-author of this paper is Dr Danielle Tyson, Senior Lecturer in Criminology, School of Humanities and Social Sciences, Deakin University.
Dr Danielle Tyson is Senior Lecturer in Criminology at Deakin University and co-director of the Monash/Deakin Filicide Research Hub. Her research focuses on legal responses to domestic homicide, homicide law reform, and filicide (the killing of children by parents). She is a member of the Family Violence Academic Board that governs Victoria Police training and education curricula development with respect to family violence and harm.