Current Problems in Criminal Law: Provocation
Section 3B of the Crimes Act 1958 abolished the defence of provocation. This essay will argue that the Victorian Government were correct in doing so and will focus on supporting that conclusion. Historically the defence finds its origins in displacing an automatic death sentence for those convicted of murder. The perceived injustice of being sent to death in some cases brought about the defence to mitigate the seemingly harsh penalty. In Victoria the defence of provocation has been somewhat of an anomaly in the law in that it only applied to murder cases, the most heinous of crimes. I will argue that it is incorrect to reduce culpability when the elements for murder are satisfied on the basis of provocation. I will argue that there can be no amount of provocative conduct on behalf of the deceased that can possibly reduce moral culpability in the accused.
I will argue further that human life is most basic of human rights and that mere words or conduct on behalf of the deceased does not render their right fruitless to the point of partially excusing their death.
This essay will focus on two, inextricably linked objections to the defence of provocation which will support the conclusion that the defence was rightly abolished. Those two main objections are that the provocation defence supports the jealous husband and excuses male violence, and secondly I will argue against the reduction in moral culpability for those who kill on the basis of provocation. To support the second argument it will also be claimed that the Victorian Government were correct to move issues of moral culpability to the sentencing stage.
The defence of provocation has continually brought about injustices and uncertainty to the criminal law and its abolition will hopefully bring...