It’s 2021 and, in some parts of Australia, men who kill their spouses are still having their sentences reduced because apparently killing someone out of jealousy seems reasonable.
It’s called the partial defence of provocation and in Queensland, NSW, ACT and NT it allows the crime of murder to be reduced to voluntary manslaughter.
It can be argued when the killer says they “lost control” and were therefore less responsible for their actions. It suggests that an ordinary person would develop an urge to kill if they were in that situation.
The defence has the broadest scope in Queensland compared to other Australian jurisdictions and last month it was announced that it would be reviewed. But experts and common sense say it should be abolished.
It’s a toxic and tired victim-blaming narrative that puts criminal culpability onto the person – historically most likely to be a woman –who has literally been violently killed.
In Queensland, this defence of provocation is still accepted and was used as recently as October 2021 to protect Arona Peniamina, who admitted he stabbed his wife 29 times at their home and crushed her skull with a concrete bollard.
He was originally convicted of murder and sentenced to life in prison, but at a retrial he argued he was provoked by his wife and mother of four, who he’d just found out had an affair, and he “lost control” due to his jealousy.
His life sentence was reduced to just 16 years.
The judge called the act a “spontaneous reaction”, saying Peniamina had “temporarily lost the power of self-control”.
Queensland attorney general Shannon Fentiman revealed after the sentencing that the defence would be reviewed by a government taskforce.
“The Women’s Safety and Justice taskforce are examining the defence of provocation in domestic, family and sexual violence cases as part of their wide ranging review of the experience of women across the Criminal Justice System,” she said.
Experts argue that the only option is to abolish the defence of provocation all together.
“The successful use of the partial defence serves to legitimise lethal domestic violence and leads to victim blaming narratives which suggest that the woman victim ‘deserved it’,” criminology lecturer at Monash University Dr Kate Fitz-Gibbon said in an interview with Sydney Criminal Lawyers.
The defence has been abolished in Victoria, Tasmania, WA and SA. In ACT and NT, use of it has been restricted but still exists in some cases.
In NSW, new laws introduced in 2014 reduced the number of scenarios in which provocation could be argued, but still allowed a partial defence of “extreme provocation”.
A parliamentary inquiry was established in 2012 to examine the former laws after Chamanjot Singh stood trial for murder for cutting his wife’s throat eight times with a box cutter, but was instead found guilty of manslaughter.
He admitted to her killing but pleaded not guilty to her murder on the grounds of provocation. The jury was told they were also permitted to vote on a charge of manslaughter, after he claimed she provoked him by telling him she had never loved him and was in love with someone else.
But the NSW amendment was criticised for not going far enough.
Dr Fitz-Gibbon calls the defence the “jealous man provocation” because in the decade prior to the reform, the majority of cases that successfully argued the defence of provocation involved men killing their intimate partners over relationship separation or suspected infidelity.
At the time she said the reform, or any other watered down version of the defence, would continue to protect abusers but would fail to protect victims of prolonged family violence.
She told Guardian Australia this week that while some jurisdictions were working on holding men to account for the actions – wild! – the partial defence of provocation must be abolished in every Australian state and territory as the very first step.
“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.”
Thank fuck for you, Dr.