Jealous man provocation: the fresh Australian bid to end legal defence used by men who kill their partners – The Guardian

After a Gold Coast man who bludgeoned his teenage girlfriend to death escaped a murder charge by arguing he had been provoked by her tales of infidelity, the Queensland government decided to step in.

Other than in exceptional or extreme cases you cant rely on words, or conduct that consists substantially of words, the states then attorney general, Cameron Dick, said in 2011.

We need a change to the law just because you say something it doesnt mean that you should be killed.

A decade later, another Queensland man, Arona Peniamina, also convinced a jury his spouses suspected infidelity had provoked him into ending her life in a jealous rage. The governments reforms had not prevented him from successfully arguing he was guilty of manslaughter, rather than murder, because he had been provoked.

As had occurred more than a decade earlier, convincing a jury he had been provoked meant Peniamina would therefore be subjected to a lesser sentence.

As the Queensland supreme court judge Peter Davis noted, Peniamina had spent the days leading up to his wifes death investigating her contact with another man.

Peniaminas case led to more questions about how the Queensland justice system was failing women, and another review of the law as it relates to the use of provocation as a defence in murder cases.

Peniamina successfully argued that the suspicion of infidelity provoked him to start assaulting his wife, Sandra Peniamina, and that he was further provoked when she picked up a knife to defend herself.

There are instances where this would help those who were provoked and were protecting themselves, Sandras sister, Carnetra Potter, who is now looking after the couples four young sons, told the Courier Mail.

But it in this case did not work in our favour. I believe the [law] should be looked at as a whole.

The attorney general, Shannon Fentiman, agreed, saying the wide-ranging work being done by the states womens safety and justice taskforce would include an examination of the defence of provocation in domestic, family and sexual violence cases. The taskforce did not respond to a request for comment about when the review could be completed.

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Queensland remains one of the few Australian jurisdictions which allows a partial defence of provocation, allowing the crime of murder to be reduced to manslaughter.

As the New South Wales court of criminal appeal justice Anthony Johnson said in April, the partial defence has attracted criticism, leading to review and reform during the past two decades.

It had been abolished in Victoria, Tasmania, Western Australia and most recently in South Australia, Johnson said. The ACT and Northern Territory have restricted the use of provocation as a defence but not abolished it entirely.

Johnsons comments were made as he denied the leave to appeal application of Warren Francis Rogers, who attempted to argue extreme provocation was a factor when he used a pillow to smother his wife of 40 years, Anne Rogers, to death. As he later explained to his son-in-law, Rogers killed her after a fight started because of he was upset by a non-sexual relationship she had with another man.

Im not a bad person, I just snapped, you know? Rogers said.

I just snapped she pushed me too far.

While Rogers application was rejected, and NSW does not allow the partial defence of provocation, its unique model is considered problematic by some experts.

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The NSW laws, enacted in 2014, include a partial defence of extreme provocation. The laws were designed to significantly reduce the number of cases under which provocation could be argued, but leave it open as a defence for cases that met a four-staged test, to ensure that victims of prolonged family violence, for example, could use it as a defence should they kill their abusive spouse.

Provocation can be considered in sentencing if a person is found guilty of murder.

The government is satisfied that the bill strikes a careful and appropriate balance between restricting the defence and leaving it available for victims of extreme provocation, including victims of long-term abuse who kill their abuser, the then NSW attorney general, Brad Hazzard, said in introducing the bill.

A select committee was established in parliament to examine the laws after the case of Chamanjot Singh, who stood trial for murder after cutting his wifes throat.

Singh claimed during his trial that his wife, Manpreet Kaur, provoked him by telling him she had never loved him and was in love with someone else, and threatening him with deportation.

He said he lost self-control and should not be found guilty of murder but of manslaughter, and the jury agreed.

In her 2017 research, Dr Kate Fitz-Gibbon, an associate professor at Monash University, found that in the decade before the reforms were introduced, there were 20 convictions finalised in the NSW supreme court for manslaughter by reason of provocation. The majority of these cases involved intimate partner homicide motivated by relationship separation or infidelity, she found.

Fitz-Gibbon found that the NSW reforms would eliminate many of these scenarios of what she called jealous man provocation.

She told Guardian Australia that the Peniamina case was a clear reminder of why the partial defence should be scrapped, as, by its nature, it operated to facilitate victim blaming narratives.

We have seen time and time again throughout Australian criminal law history that the partial defence has been successfully utilised by men who have killed their female intimate partners to avoid full accountability for their lethal actions.

It would be naive to think that the abolition of the partial defence of provocation is the entire solution.

We must continue to challenge cultures within our legal system that allow for the proliferation of gendered narratives whereby women are ultimately blamed for their own deaths.

She said that some Australian jurisdictions were currently progressing reforms that would better ensure men who committed fatal intimate partner violence they are held to account. But that did not mean that such offences should be subject to mandatory sentences, as these measures meant men who often raise provocation to mitigate their sentences.

The partial defence of provocation must be abolished in every Australian state and territory, it has no place in our legal system.

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Jealous man provocation: the fresh Australian bid to end legal defence used by men who kill their partners - The Guardian