Wednesday, June 25, 2008


There is indisputable evidence that women and children are at increased danger of violence when they leave an intimate relationship. A wealth of social science research has identified separation as a major risk factor for lethal and sub-lethal violence against women (and sometimes other family members and children). National domestic violence policy and Ministry of Health guidelines also warn of the increased risk of violence around the period of separation. However, while the evidence that separation is a primary risk factor for dangerousness/lethality is undeniable, cultural and legal tales of romantic love and male passion have masked this social reality.

Acts of violence against separated and separating women are constructed in law as 'tragic' and 'sad' (as opposed to despicable) crimes of passion. Offenders are said to experience 'cascades of violent emotion', or 'disordered thought processes' which render them unable (as opposed to unwilling) to control themselves and deal non-violently with the end of the relationship. As noted by the Victorian Law Reform Commission, in books and movies we often see the man who is 'driven crazy by love' lashing out at the woman he believes has betrayed him. Judges also accept that jealous men who pursue and kill women who have left them 'really loved' their victims and could not bear losing them.

This 'crime of passion' image underpins the defence of provocation, which partially excuses intentional killings if something said or done by the deceased victim or in some cases a third party was sufficient to deprive the offender of the power of self-control, and thereby induce him to kill. The offender's behaviour is judged by an estimation of the type of conduct that would provoke an 'ordinary' person to lose his self-control and kill. So who is this ordinary person?

Joshua Dressler (a US legal academic) provides a clue by citing a case in which the defence was available to an offender who broke into a woman's home and killed her after she told him she was not 'falling in love' with him and refused to accept his gifts. Dressler makes it clear that the 'ordinary person' may also kill a woman who asserts her right to choose her sexual partners:

[A]ssume that M and W have regular sexual relations with each other. M deeply loves W and asks W to marry him. She refuses. He asks W to live with him, but again she refuses, stating that she is not yet prepared to commit herself to anyone. Nonetheless, they continue to see each other and have sexual relations. One day, M comes to W's apartment and finds W in bed with X. Perhaps M is not justified in becoming angry - W has not wronged M, since she never promised sexual fidelity to him - but few people would disagree that M may be excused for being disturbed by the sighting. His emotions are excusable because an ordinary person, with an ordinary temper and ordinary feelings, would likely become emotionally overwrought in such circumstances. Therefore, if M kills W while he is overwrought [assuming that M did not have time to cool off] the homicide may be partially excusable.
(Dressler, When 'Heterosexual' Men Kill 'Homosexual' Men: Reflections on Provocation Law, Sexual Advances, and the 'Reasonable' Man Standard, (1995) Journal of Criminal Law & Criminology 726).

Given a wealth of research showing most homicides between intimate partners are perpetrated by men, and most of these killings stem from jealousy and sexual possessiveness; while in the relatively rare cases in which women kill, they are usually responding to violence and aggression by the male (see, for example: Kenneth Polk, When Men Kill: Scenarios of Masculine Violence, 1994) it is clear that the violent, sexually aggressive and possessive 'ordinary' person of the provocation defence is, in reality, a male!

Polk's study revealed the 'crime of passion' to be a fiction. Rather than spontaneous, unplanned violence, perpetrated by men who suddenly 'snap' or 'crack', a large percentage of homicides involving sexual intimacy where men killed women were clearly planned in advance. The killings of separated partners involved 'careful tracking' of the victim; 'scouting out of her movements to determine where and when she will be vulnerable to attack'; and repeated threats to kill, including the wife-killer's mantra: If I Can't Have Her, Nobody Can!

Despite this social reality, the provocation defence is available to men who harass and stalk their ex-partners, invade their homes, often under cover of night, and kill the terrified women often in breach of their protection orders, and often in the presence of their children. Although judges would be unlikely to accept that an offender who invaded a stranger's home could be provoked to kill by some irate words of the householder, the defence is available to men who kill their ex-partners in this situation. Furthermore, although protection orders were intended to enhance protection for victims of domestic violence, courts have accepted women's conduct in seeking a protection order and reporting the killer's prior violence to police as supporting a provocation defence for their killers.

Rebecca Bradfield, an Australian legal scholar notes the availability of the provocation defence to men who pursue and kill estranged partners 'suggests that…the legally endorsed position in respect of the status of a relationship is that "it ain't over, until HE says it is!"' Where the deceased woman was trying to safely exit a violent relationship and courts nevertheless allow a provocation defence for her killer, they are providing an opportunity for offenders with essentially 'unclean hands' to avoid a murder conviction. As Victoria Nourse points out, since civil law grants wives the right to leave unhappy/abusive relationships, these violent offenders are acting as legislators, as well as judges and executioners. (Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense (1997) Yale Law Journal 1331)

In patriarchy…there is an illusory (private) metaphysics at work giving men the authority to deal with their women without regard to the relational question of whether they really are their women any longer. If a man loves a woman in his mind, that is, as it were, where the action is. So, in his mind she is still his woman no matter what is going on in the real world.
(Michael Detmold, Provocation to Murder: Sovereignty and Multiculture (1997) Sydney Law Review 5)

National domestic violence policy calls for healthy gender roles and non-violent models of masculinity. Although women's sexual autonomy is crucial to an egalitarian, non-violent model of heterosexual relationships, the myth of romantic love and male passion has masked a structural pattern of lethal and sub-lethal separation violence against women. Thus despite legislation acknowledging separation violence can extend to the woman's new partner; the defence appears especially likely to succeed if the deceased victim had chosen to begin her life anew with another, perhaps less abusive male. In the cruellest of ironies, Ministry of Health guidelines include a patient resource to assist women to prepare for separation and achieve long term safety after separation. Women are advised to start secret savings accounts, and make other secret arrangements, while trying to avoid arousing their partners' suspicions. Such conduct provides fertile grounds for a provocation claim based on female duplicity and deceit when the woman who follows this advice is killed.

In the absence of acknowledgement of separation violence, battered women charged with failing to protect children from hearing or witnessing domestic abuse are assumed to be free to pack their bags and walk out the door. While studies show women's inability to protect themselves from severe aggression, coupled with a lack of safe alternatives are common factors in incidents of lethal violence by women; when the battered woman who fears for her life, and cannot see a way to safely escape, kills her abuser while he is drunk or asleep, she is denied access to the defence of self-defence by a social and legal system which ignores the 'red flag' of separation violence and continues to demand:


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