An Examination of a Potential Reform to the Provocation Defence: The Impact of Gender of the Defendant and the Suddenness Requirement

Abstract

Proposed biases in the application of the provocation defence according to defendant gender and time between provocation and killing were investigated to determine their impact on mock juror verdicts. Attenuation of proposed biases was tested by reforming the defence to include a history of violence as provocative. University students (N = 228) rendered verdicts for hypothetical scenarios involving domestic violence, with defendant gender and time of killing varied. Participants determined three verdicts using the Criminal Code definitions of murder and manslaughter, a summarised and a revised version of the current provocation defence. Gender significantly impacted on verdicts rendered using the definitions of murder and manslaughter. Time significantly impacted on all three verdicts rendered, as delayed compared to immediate killings entailed more guilty of murder verdicts. Overall, significantly fewer guilty of murder verdicts were rendered with a revised defence than the current defence; this suggested the reform reduced bias, though not according to time or gender specifically. Due to limited empirical studies on the defence, more research is needed to support proposed revisions, such as including a history of violence.