Category Archives: provocation

White Ribbon Day

I haven’t had much time to blog lately because of giant piles of exam marking, and also, in the middle of the marking, I ended up catching gastro off my daughter, which wasn’t fun. Fortunately, I’ve finished marking and I’m better too. All is well again. So here I am, back up on my soapbox.

I’ve been inspired to write this post after looking at Iain’s recent post on domestic violence. I agree with him that White Ribbon Day should not be used to suggest all men are violent or abusive. To suggest this detracts from the valid purpose of the day, because it is obviously untrue. It alienates men who would otherwise support an end to violence towards women (and I take Iain to be one of those men). However, with the greatest of respect, I disagree with his post where he says:

Women who goad, nag and belittle their partners must accept some responsibility for the consequences of their actions.

This suggests that domestic violence is a reasonable response to nagging. I would argue that generally, domestic violence is not just an escalation of normal domestic quarrels. It is about power. In an abusive relationship, the victim is someone who has very low self esteem, and thinks that if they just manage to do things “right”, the violence won’t occur. However, the abuser might hit the victim because his dinner is cold or because the victim asked him to turn down the television. The victim blames herself for the violence.

I have used the pronoun “him” for the abuser and “her” for the victim, but I am prepared to acknowledge that this is a generalisation. I knew of a lesbian relationship in which a girl was beaten regularly by her partner. Her friends (including myself) only found out about this when she fled the flat in which she lived with her partner in the middle of the night. A family friend was in an abusive gay male relationship many years ago. I have not heard of a case of a man being abused by his female partner, but I am sure there are circumstances in which it happens. It is far less likely to be reported or openly discussed, because a man in this situation is far less likely to seek help because of the social stigma attached. Heterosexual men are not the only people capable of being abusive.

Further, abuse is not limited to physical abuse. To take Iain’s example of a woman who goads, nags or belittles her partner, it should be stated unequivocally that this is also abuse. It is psychological abuse than physical abuse, but that doesn’t make it any the less excusable. Despite this, I strongly believe that women should not ever be hurt, hit or killed, even if they nag or belittle their partner.

Nevertheless, to get back to the main argument, I think men tend to be more physical in their response to anger than women, and women tend to be more psychological in their response than men. Does anyone remember the school yard? Boys would beat each other up, whereas girls would be much more likely to do the psychological “freeze” out and whisper nasty things about one another. Of course, this is a generalisation: there were cases where girls had violent physical fights (I recall one where two girls pulled clumps of hair from each other) and cases where boys “ganged up” on other boys. But it was rarer that way around.

I also think that it is a biological fact that men tend to be physically stronger than women. So, if a man wants to hit or hurt a woman, he is more likely to be able to inflict significant damage than if a woman wants to hit or hurt a man. This, again, is a generalisation. But the fact that men are physically stronger than women does help explain why many of the defendants in provocation cases are male: even if a woman “loses it”, she is unlikely to be able to kill her partner unless he is asleep or drugged.

Let’s look at some of the cases where a defendant alleged that they were provoked into killing the deceased:

  • a man killed his partner (eg, R v Kumar (2002) 5 VR 193; R v Parsons (2000) 1 VR 161; DPP v Leonboyer [1999] VSC 450; R v Tuncay [1998] 2 VR 19; R v Voukelatos (1990) VR 1; Moffa v R (1977) 138 CLR 601);
  • a man killed his sister’s husband (eg, R v Terry [1964] VR 248);
  • a man killed his ex-partner’s new partner (eg, R v Abebe (2000) 1 VR 429; Stingel v R (1990) 171 CLR 312; R v Quartly (1986) 11 NSWLR 332; Parker v R (1964) 111 CLR 665);
  • a man killed his ex-girlfriend’s friend (eg, R v Vidler [2000] QCA 63);
  • a man killed his daughter’s ex-husband (eg, Masciantonio v R (1995) 183 CLR 58);
  • a man killed another man who threatened his wife and children (eg, R v Peisley (1990) 54 A Crim R 42);
  • a man killed another man who allegedly raped his partner (eg, R v Arden [1975] VR 449);
  • a man killed another man who came around to “sort him out” (eg, Duggan v R [2001] TASSC 5;
  • a man killed a gay man who allegedly made sexual advances towards him (eg, Green v R (1997) 191 CLR 334);
  • a woman killed her husband (eg, Van den Hoek v R (1986) 161 CLR 158; Osland v R (1998) 197 CLR 316; R v Chhay (1994) 72 A Crim R 1; R v Ahluwalia [1992] 4 All ER 889) In the latter three cases, the accused woman alleged that there was an abusive relationship, and that she killed the man when he was asleep or drugged.

You can see that the vast majority of the cases involved men, although not all of them did. Statistically speaking, I think men are far more likely to “lose it” in this way. Generally, women find it more difficult take advantage of the provocation defence because if a woman kills a man because he is abusive or goads her, it tends to be premeditated, not a sudden loss of control. There have been some arguments that the law should extend to defend women who kill abusive partners in a premeditated fashion, particularly after the decision of the High Court in Osland v R (1998) 197 CLR 316. I do not agree. Perhaps I am an idealist, but I think provocation should be abolished altogether. I am just not comfortable with it.

I am also thinking of something which was hotly debated by my class when I studied Criminal Law. Why did almost all of the rape cases involve men as the offenders? I am sorry to be somewhat “gross” and raise this matter, but as far as I am aware a woman would find it very difficult to force an man to have non-consensual sexual intercourse with her from a purely physical and practical point of view. A man may be seduced by a woman, and regret it afterwards, but it is unlikely that he could be raped by a woman. Whereas a man may force himself on a woman without her consent.

So, from a physical point of view, a man is more likely to be able to harm a woman. A man is more likely to be able to rape a woman. Further, psychologically, I think men are more likely to react to with violence when they are angry than women. By saying this, I do not suggest that all men are violent or that all men are should take responsibility for domestic violence. I find that notion offensive, particularly when I think of my dear, gentle husband.

What I am trying to argue logically is that men are more likely to be able to inflict physical violence on women in a domestic scenario than the other way around. It’s just a simple fact of life. White Ribbon Day reflects this generalisation. From that point of view, it is a laudable idea, to raise consciousness about women who are unfortunately subject to domestic violence.


Filed under criminal law, feminism, provocation, society, White Ribbon Day