Limited (and gendered?) concessions to human frailty: Frightened women, angry men and the law of provocation

Abstract

The ways in which self‐defence and provocation have historically been seen under the law present problems for women who kill abusive partners. Because of the definitional confines of these defences, the judiciary has had problems applying them to the typical situations in which women kill abusive partners, often after years of abuse. Feminist scholarship has been instrumental in contextualising the confines of these defences, and in articulating possible changes to acomommodate the violence women experience. Battered woman syndrome is often invoked in order to explain why the victim remained with her partner and failed to formally complain or complained only selectively. Together with some other psychological syndromes this form of evidence has been called ‘counter‐inturtive’. The author examines the recent High Court decision in Osland v. R (1998) 159 ALR170 within this framework. While noting the dynamics of the battering relationship, and the law's failure to accommodate that within the definitional confines of the defence of provocation and self‐defence, the author also points to the pragmatism inherent in the High Court approach. The author concludes with a mention of the symbolism inherent in Justice Kirby's approach in Osland in particular. This unequivocally rejected violent responses to violent situations and called for non‐violence as the hallmark of a civil society.