: Sex, Culpability And The Defence Of Provocation

Sex, Culpability And The Defence Of Provocation

Penny Crofts

sex-culpability-and-defence-provocation-150pxDanielle Tyson;

Routledge, 2013; 230pp; $51.00 (paperback)

The partial defence of provocation is one of the most controversial doctrines within the criminal law. It has now been abolished in a number of jurisdictions. In Sex, Culpability and the Defence of Provocation, Danielle Tyson provides ample historical and contemporary evidence to justify the abolition of the defence. More disturbingly, she raises questions about whether or not law reforms will change the strength and persistence of the explanation that a woman who is murdered ‘asked for it’.

Chapter 1 details statistics of homicide and the use of, and reforms to, the defence of provocation. Whilst men are overwhelmingly the victims of homicide, within the category of domestic homicide, the majority of victims are women who were killed by an offender with whom they had been in an intimate relationship. In almost half the homicides, there had been preceding violence.

Women are most at risk of violence from an intimate partner when they attempt to leave or terminate the relationship. In Australia, the vast majority of all homicides involving men as offenders (where the victims are either women or men) take place in the context of sexual jealousy. The defence of provocation has been relied upon in cases where men have killed out of anger, jealousy, possessiveness or loss of self-control. There is now a large body of critical literature which argues that the standard provocation narrative, of a man who kills his ‘nagging, unfaithful or departing wife’, is anachronistic and that it should not form a defence to homicide. As a result, the defence has been abolished in Tasmania, Victoria, Western Australia and New Zealand, and reformed in England and Queensland; New South Wales is currently evaluating whether or not the defence should be abolished.

Tyson is particularly interested in the construction of the standard provocation narrative of blaming the victim in representations within law and culture. She relies upon a variety of approaches — including the historical, literary, theoretical and legal — to explain and disrupt victim-blaming narratives. Throughout the book, gems of historical analysis are scattered. For example, I loved the section on the scolding woman, a figure that emerged in the 14th century. The common law offence of scolding developed in England in the mid-16th century and remained on the statute books until 1967. The offence was punishable by putting the head of the offender in a cucking or ducking stool and submerging it in a river or pond. Scolding stereotypes in English culture prior to and alongside their legal development assisted in the creation of the scold as a category of femininity by which women could be branded, punished and controlled.

Tyson links the scold with Shakespeare’s play The Taming of the Shrew (1594), arguing it is the staging of a benevolent version of the shaming of a scold in which Kate occupies both shamed object and chivalric ideal. She argues that the legal response of the ‘naggish, shrewish, sharp-tongued woman’ lingers and explains the judgment in the case of Moffa v R.1 In that case, the accused claimed that his wife had told him that she did not love him, threw at him photos of herself naked (some of which he had taken) and said that she had slept with other men.

Throughout the book, Tyson argues that we need to be aware of how stories are told by the law. On this account, law is a creative act, just as literature is, but law conceals and denies its literary sources and aesthetic arrangements. Tyson analyses the narrative devices and structures used by the law which draw upon stock stories to organise and evaluate events and attribute meaning to the facts. Her re-reading of well-known cases is a very successful demonstration of the power of these underlying narratives. I found the retelling of major provocation cases that are used as teaching tools very effective.

For example, the analysis of the case of Gardner v R,2 in which the accused successfully argued provocation after killing his wife and sexual rival, is portrayed as a story of the accused as a fallen hero-lover who needed to restore and demonstrate his masculinity. Tyson argues that the Victorian Supreme Court case of Trisnadi3 drew on the structure of a love-triangle so that the accused argued he did not kill out of spite, but rather, love and jealousy, and was confused by the victim’s toying with his affections.

Tyson supplements her retelling of these cases by going beyond judgments to include trial transcripts and media, as well as comments by members of the families, during and post-trial. I thought her analysis of legal counsel techniques to draw upon and construct narratives would be of particular interest to lawyers, especially her arguments that whilst the court claims to focus on answers by witnesses, the questions asked by counsel are part of the auditoria of the court and have the power to construct particular plot-lines or narratives. The inclusion of family and media comments also underlines what is excluded and at stake in the construction of the victim as ‘asking for it’. These provide an alternative story to the institutionally sanctioned ‘facts’.

Sex, Culpability and the Defence of Provocation raises the question of audience, specifically, who are the intended readers of the book? This is because the tone of the book is not uniform—some parts are very accessible, whilst others have more challenging theory. The first chapter on the statistics of homicide and reform of the defence is essential reading for anyone interested in engaging in debates about the defence of provocation. I would highly recommend it for first year law students. Chapter 5 provides an outline of masculinities theory which is highly accessible and could be recommended to those interested in criminology. I thought Tyson’s argument about the way in which masculinities theory lends itself to the notion of an anxious, defended male was timely and insightful. Tyson argues that these theories make it possible to read acts of violent men in a tragic light, reiterating her argument that the stories about men, masculinities and male violence should be subject to continued scrutiny. Some of the theory about the intersections of literature and law was more difficult and is likely to be of more appeal to post-graduate students and legal theorists.

Throughout the book, Tyson brings her argument back to the court and to judgments. Her analysis of the dynamics of the courtroom and the appeal of particular narrative structures would be of interest to practitioners, who may prefer to skip over theoretical perspectives that are not of interest. Some parts of the book are more successful than others. For example, I found some of the arguments about films less persuasive than the case analyses. However, overall the argument is timely and sustained.

Sex, Culpability and the Defence of Provocation concludes by noting that whilst the defence of provocation has been abolished in Victoria, the cultural script of blaming the victim remains and has been used successfully despite reforms. Tyson provides a theoretical explanation for why law reform needs to be accompanied with a critical rewriting and rereading of powerful exculpatory narratives currently at play.

PENNY CROFTS lectures in criminal law at the University of Technology, Sydney.


1. (1977) 138 CLR 601.

2, (1989) 42 A Crim R 279.

3. R v Budianto Trisnadi, unreported, Supreme Court of Victoria (18 December 1996) Eames J.

(2013) 38(1) AltLJ 64
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