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Provocation as a Defence for Abused Women Who Kill

Published online by Cambridge University Press:  09 June 2015

Brenda M. Baker
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After the decision by the Supreme Court of Canada in Lavallee, Canadian women who are victims of serious domestic abuse have been able to invoke an ‘enlarged’ conception of self-defence to exonerate some acts of killing abusers. While concern remains about Lavallee, this judgement broke important ground in insisting on a more sensitive account of the actual experience of abused women, and in giving recognition to the reasonable fears that such women have for their lives. However, other than self-defence, there is no criminal law defence or plea that has been effective as a (partial) excuse or justification for killings by abused women. In this paper, I will consider the potential for a plea of provocation to serve such a role. Provocation has acquired some standing in other jurisdictions as a defence for abused women who kill but it has not as yet been effectively used in Canada. I will look at the appropriateness of provocation as a plea in some abuser homicides. The paper will discuss some ways in which the plea of provocation could be enlarged in scope and in normative power; the paper will also examine some shortcomings of the current understanding of provocation to serve a defence for women who kill. Since homicides by women make up a small fraction of all homicides, even a reformed defence of provocation would be rarely used. But the more important question is whether a plea which has been available to men for several centuries should not also be (much more) available to women who kill, and whether closer attention to the situations and perspectives of women in abusive relationships yields good grounds for thinking some kill as excusable or reasonable responses to serious provocation. The underlying concern is an equality concern; that women have equal access to suitable defences for their putative breaches of the criminal law, and that standards of reasonableness operative in criminal case deliberation be as responsive to women’s experience and women’s values as they are to men’s.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 11 , Issue 1 , January 1998 , pp. 193 - 211
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1998 

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References

1. Lavallee v. The Queen, [1990] 1 S.C.R. 852, 55 C.C.C (3d) 97.

2. In the United States, a woman who kills her abuser can plead self defence or provocation, and can introduce expert evidence to help juries in understanding the effects of battering on their state of mind. Australia has already developed judicial and legislative interpretations of provocation in order to accommodate “the human reality of violent and protracted inter-personal relationships” and homicides occurring in situations of inter-personal abuse. See S. Yeo, “Provocation Down Under” (1991) 141 New L. J. 1200 [hereinafter ‘Provocation’] and S. Yeo, “Battered Woman Syndrome in Australia” (1993) 143 New L. J. 13.

3. Dennis Klimchuk, in a very helpful commentary on this paper at the Canadian Section, International Association for the Philosophy of Law and Social Philosophy 1997 meeting at Memorial University, has pointed out that recent S.C.C, decisions (R. v. Hill (1985), [1986] 1 S.C.R. 313,51 C.R. (3d) 97,17 O.A.C. 33 (S.C.C.); and/?, v. Thibert, [1996] 1 S.C.R. 37,104 C.C.C. (3d) 1) have made way for the accommodation of background and contextual information to a determination of what amounts to provocation in law, and for some relaxation in the requirement that provoked action must be taken ‘on the sudden before passion cools.’ His point is that Canadian law already has the conceptual resources in place to respect some of the expanded role for provocation which I defend in this paper. My paper is mainly concerned to provide a moral argument for the adoption by society and the courts of a more equitable defence of provocation that takes seriously the plight of women in abusive relationships.

4. This aspect of traditional provocation in English law is detailed in A. J. Ashworth’s classic paper “The Doctrine of Provocation” (1976) 35 Cambridge L. J. 292.

5. Supra note 1.

6. Cited in Provocation, supra note 2 (1991) at 1200. Yeo remarks that this liberal interpretation has not resulted in “a spate of murder acquittals.” Ibid, at 1201.

7. C.M.V. Clarkson & H.M. Keating, Criminal Law: Text and Materials (London: Sweet and Maxwell, 1990) at 643.

8. As I later note, there will still be need to give some explanation of what precipitated a decisive response in the particular situation where provocation is invoked. The experience of UK courts with cases of long-standing provocation suggests that the onus of giving a suitable explanation is not heavy.

9. This argument is developed by E. Schneider, with respect to American experience, in “Describing and Changing: Women’s Self-Defense Work and the Problem of Expert Testimony on Battering” (1986) 9 Women’s Rights L. Reporter 195.

10. Sandra E. Marshall discusses women’s reactions in dangerous and provoking situations as an example of how legal modelling of their reactions on men’s responses can lead to injustice to women, by ignoring how ‘emotions and their range of expression are structured by our forms of life.’ S. E. Marshall, “Punishing Women: Equal or Different?” in M. Karlsson, O. Jonsson & E. Brynjardottir, eds., Law, Justice, and the State Rechtstheorie Beiheft 15, (Berlin: Duncker & Humblot, 1993) at 373–74 Marshall’s paper is a thoughtful reflection on the complexities of deciding what similarities and differences to emphasize in trying to secure equality of treatment for men and women in the criminal process.

11. Provocation, supra note 2.

12. Ibid, at 1201.

13. Don Stuart, Canadian Criminal Law, 3d ed. (Toronto: Carswell, 1995) at 499.

14. G. R. Sullivan, “Anger and Excuse: Reassessing Provocation” (1993) 13 Oxford J. of Legal Stud. 421 at 425.

15. J. Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992).

16. After developing these conceptions in interesting detail, Horder surprisingly argues in the final chapter of his book (ibid.) that contemporary society should reject the plea of provocation both in its ‘anger as outrage’ and ‘anger as loss of self-control’ forms. His arguments on this score are well criticized by Sullivan, supra note 14 at 426.

17. Some details of Horder’s historical account of “anger as outrage’, such as the role played by a sense of (male) honour, could be regarded as cultural instantiations of legitimate anger as outrage that could now be set aside as antiquated and patriarchal.

18. Supra note 14 at 425.

19. J.L. Austin, “A Plea for Excuses” in J.L. Austin, Philosophical Papers (Oxford: Clarendon Press, 1961) 122 at 125.

20. J. Dressier, “Provocation: Partial Justification or Partial Excuse?” (1988) 51 Modern L. R. 467 at 468. Dressier himself makes a persuasive argument for the position that provocation is better regarded as an excuse than as a justification.

21. To some extent, the crabbed view of provocation taken by our law reflects more generic weaknesses in how the law tends to construe excusing factors. The law has for various policy reasons been resistant to admitting justifications for what would otherwise be breaches of the law, so it has tried to cast as many defences as it can as excuses even at the cost of distorting how some of those defences bear on responsibility and moral culpability. Secondly, there has been a tendency to give an overly narrow analysis of a legal excuse and how it excuses. The courts themselves have tended to regard a legal excuse as focusing on the actor and his/her characteristics, while justifications focus on the act done. It is often said that ‘an excusable act is one that, although wrong, should be tolerated because of the actor’s characteristics” (See E. Schneider, “Equal Rights to Trial for Women: Sex Bias in The Law of Self-Defense” (1980) 15 Harv. Civil Rights-Civil Liberties Rev. 623). This is often taken to mean that an excuse is a factor impugning the voluntary character of the action excused, so that excuses show that the action resulted from some ‘faultiness of will’ or ‘deficiency of will’ on the agent’s part. Under the influence of this model, coerced or necessitated intentional actions get recast, for excusing purposes, as cases where the agent’s will is “overborne” or where “a concession is made to human infirmity” (supra note 13 at 499) because it is impossible to will differently. This recasting misdescribes how these defences bear on action, responsibility and culpability. It treats them as though they eroded the will: regarding them as due to failures or shortcomings of will those actions which are chosen as the least bad among the possible alternatives. It misleadingly construes features which are objective features of the actor’s situation as though they were features of the actor’s agency. In short, the law has not developed a satisfactory account of how situational constraints can limit reasonable agent choice, and thereby reduce both full accountability for and blameworthiness for the actions chosen. This partly explains the dominance of a ‘loss of self-control’ analysis of provocation, which construes provocation as operating through an infirmity of the agent or his/her will; the analysis allows provocation to be treated as a limited excuse or mitigation, while ignoring the ways in which provoked action may be a warranted response to a provoking situation. The plea then cannot accommodate cases of abuser homicide which occur where women are unable to escape from a situation of continued beatings unless they take a fatal, or probably fatal, course of action. The specific way in which ‘battered women’s syndrome’ can be read as reinforcing this conception of provocation as an excuse is discussed by Schneider. Supra note 9.

22. Supra note 20 at 475.

23. See B. Baker, “Acting Under Duress” (1974) 3 Can. J. of Phil. 515 at 519–20.

24. Criminal Code, R.S.C. 1970, chap. C-34, 232 (2).

25. Supra note 4 at 292.

26. Supra note 14 at 425.

27. It is very doubtful that it can cover all of these cases, which means that there will be a residue of cases for which no legal defence is available to persons whose circumstances made compliance with the law extraordinarily difficult.

28. Supra note 14 at 426.

29. The central emotion in self defence, fear, is not nearly as likely to be taken up by men as is the emotion of anger associated with provocation. So a defence based on fear is a more promising candidate for a ‘woman’s defence’ than one based on anger, at least in the sense that the former does not have some of the liabilities of the latter. I owe this observation to Sheldon Wein.

30. An intelligent discussion of this issue can be found in “A Forum on Lavallee v. R: Women and Self-Defence” (1991) 25 U.B.C. L. Rev. 23 by participants Donna Martinson, Marilyn MacCrimmon, Isabel Grant and Christine Boyle. MacCrimmon notes that the model of rationality operative in the law assumes that rational individuals will be governed by considerations of self-sufficiency, and so “assigns no value to the goal of developing and preserving relationships over a period of time.” Ibid. at 48. The tendency is to assume that the woman must be irrational to stay in a battering relationship. There are, as MacCrimmon says “valid, plausible, reasonable explanations for not leaving that do not entail reliance on the theory of learned helplessness.” Ibid, at 48.1 would add that these include a sense of responsibility for the family as a unit, love of one’s children, care of the young and vulnerable, and appreciation of the psychological damage that can be caused by separation and breakup, in addition to known lack of skills or prospects for securing these values by other means.

31. Dennis Klimchuk has suggested that the courts could place normative or moral restrictions on claims of provocation by introducing certain principles of exclusion, e.g., that background information will not be considered when it amounts to a failure to treat all persons as equals.

32. George Fletcher’s complaint in Rethinking Criminal Law (Boston: Little, Brown, 1978) at 246–47 that the courts have avoided these hard questions continues to hold good, despite being now almost two decades old.

33. The view that provocation by physical assault by male partners is much more obviously a wrong is also made by L. Taylor, “Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense” (1986) 33 U.C.L.A. L. Rev. 1679 at 1725.

34. Ibid, at sect 3.

35. J. Dressier, “Justifications and Excuses: A Brief Review of the Concepts in the Literature” (1987) 33 The Wayne L. Rev. 1155 and supra note 20.

36. Dressier observes that forfeiture would support doing the killing at any time, and by others than the abused partner, so that it has little overlap with provoked killing. Supra note 20 at 478–79.

37. Cited in supra note 13 at 500.

38. Model Penal Code s. 210.3(l)(b), (1962). Available in Uniform Laws Annotated.

39. Celia Wells argues that the tendency of English courts to invoke the partial defences of provocation and diminished responsibility (instead of a justification like self-defence) for women who retaliate reasonably against persistent domestic violence shows the influence of socially constructed ideas of reasonableness, including ideas of women as emotional and irrational. See C. Wells, “Domestic violence and self-defence” (1990) 140 New L. J. 127.

40. The issue here is not whether some cases may involve impaired capacities and mental stability. Of course they do. What is objectionable is the assumption that all cases will be explicable in terms of such categories.

41. This is proposed for American law by Laurie Taylor, supra note 33. It is significant that she makes the proposal for a legal jurisdiction which, unlike Canada’s, does not recognize any justifying defence for homicide. Taylor also discusses briefly the idea of imperfect self-defence, which operates in some American jurisdictions to reduce murder to manslaughter and serves to recognize factors such as the defendant’s having initiated the violent encounter, or having unreasonably believed that deadly force was needed. See also S. Uniacke, Permissible Killing (Cambridge: Cambridge University Press, 1994), for the view that a justified but mistaken belief about the circumstances warranting self-defence should completely excuse, but not justify the defendant’s conduct. My discussion does not attempt to address these complexities.