Provocation as a Defence for Abused Women Who Kill

Canadian Journal of Law and Jurisprudence

Volumn 11, Issue 1, 1998, Pages 193-211

  Baker, Brenda M ^a  

^a NONE

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[No Author keywords available]

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EID: 85007589265     PISSN: 08418209     EISSN: 20564260     Source Type: Journal    
DOI: 10.1017/S0841820900001740     Document Type: Review

References (40)

1. Lavallee v. The Queen, [1990] 1 S.C.R. 852, 55 C.C.C (3d) 97.
2. S. Yeo, "Provocation Down Under" (1991) 141 New L. J. 1200 [hereinafter 'Provocation']
3. S. Yeo, "Battered Woman Syndrome in Australia" (1993) 143 New L. J. 13.
4. Dennis Klimchuk, in a very helpful commentary on this paper at the Canadian Section, International Association for the Philosophy of Law and Social Philosophy 1997 meeting at Memorial University, has pointed out that recent S.C.C. decisions (R. v. Hill (1985), [1986] 1 S.C.R. 313,51 C.R. (3d) 97,17 O.A.C. 33 (S.C.C); and/?, v. Thibert, [1996] 1 S.C.R. 37,104.
5. This aspect of traditional provocation in English law is detailed in A. J. Ashworth's classic paper "The Doctrine of Provocation" (1976) 35 Cambridge L. J. 292.
6. Cited in Provocation, supra note 2 (1991) at 1200. Yeo remarks that this liberal interpretation has not resulted in "a spate of murder acquittals." at 1201.
7. C.M.V. Clarkson & H.M. Keating, Criminal Law: Text and Materials (London: Sweet and Maxwell, 1990) at 643.
8. As I later note, there will still be need to give some explanation of what precipitated a decisive response in the particular situation where provocation is invoked.
9. The experience of UK courts with cases of long-standing provocation suggests that the onus of giving a suitable explanation is not heavy.
10. This argument is developed by E. Schneider, with respect to American experience, in "Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering" (1986) 9 Women's Rights L. Reporter 195.
11. S. E. Marshall, "Punishing Women: Equal or Different?" in M. Karlsson, O. Jonsson & E. Brynjardottir, eds., Law, Justice, and the State Rechtstheorie Beiheft 15, (Berlin: Duncker & Humblot, 1993) at 373-74.
12. Provocation, supra note 2.
13. Don Stuart, Canadian Criminal Law, 3d ed. (Toronto: Carswell, 1995) at 499.
14. G. R. Sullivan, "Anger and Excuse: Reassessing Provocation" (1993) 13 Oxford J. of Legal Stud. 421 at 425.
15. J. Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992).
16. His arguments on this score are well criticized by Sullivan, supra note 14 at 426.
17. Some details of Horder's historical account of "anger as outrage', such as the role played by a sense of (male) honour, could be regarded as cultural instantiations of legitimate anger as outrage that could now be set aside as antiquated and patriarchal.
18. Supra note 14 at 425.
19. J.L. Austin, "A Plea for Excuses" in J.L. Austin, Philosophical Papers (Oxford: Clarendon Press, 1961) 122 at 125.
20. J. Dressier, "Provocation: Partial Justification or Partial Excuse?" (1988) 51 Modern L. R. 467 at 468.
21. To some extent, the crabbed view of provocation taken by our law reflects more generic weaknesses in how the law tends to construe excusing factors.
22. E. Schneider, "Equal Rights to Trial for Women: Sex Bias in The Law of Self-Defense" (1980) 15 Harv. Civil Rights-Civil Liberties Rev. 623) 22. Supra note 20 at 475.
23. See B. Baker, "Acting Under Duress" (1974) 3 Can. J. of Phil. 515 at 519-20.
24. Criminal Code, R.S.C. 1970, chap. C-34, 232 (2).
25. Supra note 4 at 292.
26. Supra note 14 at 425.
27. Supra note 14 at 425.
28. A Forum on Lavallee v. R: Women and Self-Defence" (1991) 25 U.B.C. L. Rev. 23 by participants Donna Martinson, Marilyn MacCrimmon, Isabel Grant and Christine Boyle.
29. MacCrimmon notes that the model of rationality operative in the law assumes that rational individuals will be governed by considerations of selfsufficiency, and so "assigns no value to the goal of developing and preserving relationships over a period of time." at 48
30. Dennis Klimchuk has suggested that the courts could place normative or moral restrictions on claims of provocation by introducing certain principles of exclusion, e.g., that background information will not be considered when it amounts to a failure to treat all persons as equals.
31. George Fletcher's complaint in Rethinking Criminal Law (Boston: Little, Brown, 1978) at 246-47
32. L. Taylor, "Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense" (1986) 33 U.C.L.A. L. Rev. 1679 at 1725.
33. J. Dressier, "Justifications and Excuses: A Brief Review of the Concepts in the Literature" (1987) 33 The Wayne L. Rev. 1155 and supra note 20.
34. Dressier observes that forfeiture would support doing the killing at any time, and by others than the abused partner, so that it has little overlap with provoked killing. Supra note 20 at 478-79.
35. Cited in supra note 13 at 500.
36. Model Penal Code s. 210.3(l)(b), (1962). Available in Uniform Laws Annotated. 39
37. C. Wells, "Domestic violence and self-defence" (1990) 140 New L. J. 127.
38. This is proposed for American law by Laurie Taylor, supra note 33. It is significant that she makes the proposal for a legal jurisdiction which, unlike Canada's, does not recognize any justifying defence for homicide.
39. Taylor also discusses briefly the idea of imperfect self-defence, which operates in some American jurisdictions to reduce murder to manslaughter and serves to recognize factors such as the defendant's having initiated the violent encounter, or having unreasonably believed that deadly force was needed.
40. S. Uniacke, Permissible Killing (Cambridge: Cambridge University Press, 1994)