Provocation is a partial defence to an act of criminal violence, such as murder or attempted murder. The provocation defence dates back to the late Middle Ages when courts and judges accepted that a man might respond violently if his honour, dignity or courage was insulted. Later, provocation became a legitimate partial defence for acts of violence. The premise is that a person, if sufficiently provoked, may lose a degree of self-control. When successful, the provocation defence can lead to a reduction in sentence or a lesser charge (for example, charges may be downgraded from murder to manslaughter). Many legal jurisdictions still allow provocation as a defence today, though it has become controversial. Of particular note are several cases involving the murder of women by their partners.
In June 2003 a Toorak woman named Julie Ramage separated from her husband of 23 years, James Stuart Ramage. A month later Ramage visited his wife in her flat, where she informed him that their marriage was over for good. Ramage responded by punching her in the face and strangling her to death. He transported her body to a rural area near Kinglake, buried it in a shallow grave and later turned himself into police. Ramage’s committal to trial for murder in 2004 seemed clear-cut, however, his counsel called on the established but rarely used provocation defence. On the night of her murder, Ramage told the court, his wife told him that their love-making “repulsed” her and that sex with her new lover was much better. Ramage’s lawyers argued that this humiliating remark was a mitigating factor in his attack on his wife. The jury agreed, accepting Ramage’s provocation defence and finding him not guilty of murder but guilty of the lesser charge of manslaughter. Ramage was sentenced to 11 years’ imprisonment with a non-parole period of eight years.
The case attracted widespread media coverage, in part because the Ramages were an affluent family from the inner suburbs of Melbourne – however, there was also a considerable amount of attention to James Ramage’s use of the provocation plea. Several editorials and commentaries expressed outrage that Ramage had escaped a murder conviction, simply by claiming to have been insulted and provoked. In an editorial dated November 22nd 2004, the Herald Sun argued that:
The provocation defence has been used by violent men to excuse killing partners in passion but has not been available to battered women, who might have killed violent husbands after years of abuse. Other proposed changes to the law will allow friends and family to give what was previously considered hearsay evidence of a killer’s history of violence. Such evidence was not admissible in the Ramage case. Changes to provocation defence law are overdue and will reassure women they are not mere chattels [belongings] to be disposed of if they anger men in their lives.
Public opinion tended to follow the stance taken by the media, with considerable support for the abolition of provocation as a defence to murder. By mere coincidence, as the Ramage verdict was being discussed the media, the Victorian Law Reform Commission was concluding a three-year investigation into “defences to homicide”. Among the VLRC’s recommendations was that “…The partial defence of provocation should be abolished. Relevant circumstances of the offence, including provocation, should be taken into account at sentencing as they currently are for other offences.” In October 2005 the Victorian State government adopted this recommendation, passing the Crimes (Homicide) Act and abolishing the provocation defence. In 2008 New Zealand man Clayton Weatherston was tried for the murder of his ex-girlfriend, Sophie Elliott. Weatherston had gone to Elliott’s home armed with a knife and stabbed her almost 200 times – however, he attempted to use the provocation defence, citing emotional trauma. The jury rejected Weatherston’s claims and found him guilty of murder. The New Zealand government legislated to abolish the provocation defence in November.