PROVOCATION - DEFENDING THE INDEFENSIBLE

DAVID NEAL - December 2004

It's disingenuous for David Neal to characterise the community horror at the manslaughter verdict against James Ramage as being driven by the 'punitiveness of the shock-jocks'. No amount of name calling will alter the fact that the law of provocation, as used by men who kill women, has effectively extinguished a woman's right to leave a relationship. Only last month Neal was up in arms about increased police powers, which he argued would compromise our civil liberties. Yet, when provocation compromises the rights of a woman, Neal switches sides. Why are the same men who express moral outrage at the Howard government's refugee policy and it's 'children overboard' lies so stone hearted when a woman is murdered in these circumstances?

It's astounding that Neal thinks the actions of a patriarchal man like James Ramage are the same as those of a 'temporarily insane' woman who kills her child. And on the basis of this spurious argument he thinks we should partially excuse wife killing. If Ramage was insane, he was insane about his loss of power over his wife. If he was depressed it was because he no longer had control of his wife in the marital bed. His answer was to avenge his honour and reassert his power. How can that ever be compared with clinical post natal depression? It's a bit like saying we should be compassionate to Adolf Hitler because his hatred of Jews was so deep seated and chronic he couldn't act otherwise.

Like all defenders of provocation, David Neal refuses to address specific cases such as R v Ramage. He has no trouble finding cases which allegedly support the retention of the law of provocation, but ask him about Ramage and he'll say he 'hasn't read the transcript.' In at least two of the cases he cites, the victim of the homicide has been responsible for incredible acts of brutality and/or violence and sexual degradation. Provocation defences where men kill women and are found guilty of manslaughter have nothing in common with these cases. Invariably, nothing more than a woman leaving a relationship and refusing to return is the reason for the killing. The most provocative thing the woman has done is say 'I'm not coming back.'

The chilling facts, as provided by Neal, are that more than two thirds of men who kill women and plead provocation are found not guilty of murder. If James Ramage is an example of the kind of man found not guilty, is this something to skite about? In the overwhelming majority of occasions when women kill men, it follows years of violence or sexual abuse at the hands of the man. That's why the ten women in Neal's sample were found not guilty of murder. It's amazing that Neal still doesn't understand the flawed conclusions of the 1991 Law Reform Commission Report. He was the chair after all. Does he seriously believe he was right in 1991 and Marcia Neave and everyone associated with this year's report is so wrong?

Funnily enough, I agree with Neal, for very different reasons, when he says the defence should be retained. If it's abolished there is the very real danger the assumptions that drive his arguments will be incorporated in sentencing. In other words, Judges will sentence according to the old patriarchal beliefs. If we tighten provocation so that a separation can never be the reason per se for using provocation, judges will be forced to affirm a woman's rights, and violent men such as Ramage will feel the full force of the law.

It's time David Neal seriously sought to address, via the law, the institutionalised barbarism refected in cases such as R v Ramage. If he thinks the defence should be 're-moulded into a partial defence of extreme emotional disturbance' where would he draw the line? If he thinks that James Ramage was entitled to a provocation defence he should say so.

To understand how discriminatory the current application of the law of provocation is, we need only ask what a woman should do to avoid provoking her death. Julie Ramage wrote a lovely letter to her husband after she left him. She didn't fight him over property or flaunt her new boyfriend in his face. She went to the house alone to look at his renovations. For all that he bashed and strangled her.

If she hadn't left, he probably would never have killed her. Maybe that's the moral of the story. Stay and be told what nail polish and clothes to wear and when to roll over for sex. It's time David Neal accepted that the game's over and that most modern women will no longer suffer this form of control. The real challenge for men is to stop their sisters, daughters and mothers getting killed. That's more important than changing the law.

Phil Cleary