Argument Against Provocation In Australia

Provocation – a partial defence for murder, originating in the Medieval times, 400 years ago, acting as a concession for human frailty. Its primary source was to ensure that one guilty of killing ‘in the heat of passion’ would not face the, then mandatory death penalty. Indeed, it has become quite the mockery that in the modern, civilized society that Australia exists in today, that Queensland refuses to abolish the defence; no matter its incapability of reaching many agreed upon criterions of a ‘good’ law, including that of, it being relevant to society as its values and attitudes change, being equally available and applied to all, and it being certain and clear. The amendments of provocation may be a step in the right direction, but does
Those opposed against the defence suggest that it is an obvious mean of protecting homophobes and that there shouldn’t be reasonable justification for allowing it. The question is raised then, of if it is possible for someone to be so overcome with panic from being ‘hit on’ that they lose such control that the result is death? However, a recent study found that these killing are more so due to pure homophobia rather than the more commonly claimed ‘hit on’ panic. It is hard to judge the legitimacy of losing control and beating someone to death because of homosexual advance, and not something that society accepts as reasonable, or excusable behaviour. The R v Meerdink and Pearce case saw two men who beat a man outside of a Gympie church, due to sexual advance, successfully argue provocation. Following the sentencing, Father Paul Kelly began a petition to eliminate the provocation defence from Queensland law, which gained international recognition and support from known personalities including British comedian Stephan Fry. It was raised in the controversial sentencing of R v Meerdink and Pearce, that the defence must be abolished “because it reinforces the notions of fear, revulsion or hostility are valid reaction to homosexual conduct.” When allowing such a defence to exist, it sends the message that reactions alike are acceptable, contradicting the views held by our modern society. Kirby J, also brought to light a major argument against this defence; indicating that the defence seemed to only apply to homosexual advances opposed to heterosexual, arguing that ‘if a woman had a non-violent sexual advance made against her, tried to use provocation as a defence for murder, the definition of provocation would be unreasonably extended.’ As said in David Donaldson’s ‘Provocation and Masculinity’ essay, “if