Saturday, October 15, 2005

Loud and clear and wrong

Earlier this month some legal changes were brought about here in Victoria. One of them is that you can no longer plead provocation as a defence for murder.

Here is how The Age reported the impending legal reforms:

Men who kill their partners in a jealous rage will no longer be able to use the partial defence of provocation ... Attorney-General Rob Hulls said yesterday the proposed reforms to go before Parliament today tackled entrenched bias against women ... "This Government will not support a mechanism ... that has been relied upon by men who kill partners or ex-partners out of jealousy or anger".

Football and political identity Phil Cleary ... said the provocation defence was "a barbaric, misogynist law that had to go ... The real challenge now is to ensure that those old-style judges who have been complicit in the law of provocation are not able to stay complicit behind the closed doors of chamber".

Australian Democrats senator Natasha Stott Despoja also welcomed the proposed scrapping of the provocation defence. "The defence of provocation enshrines an anachronistic and old-fashioned world view of male violence towards women as understandable and justifiable ... If we are to abolish domestic violence in this country, we must abolish the protection of its perpetrators in our legal system".

The message here is loud and clear, is it not? It is men who murder women and then use a provocation defence to get off. It is old-fashioned male judges who accept murderous violence against women and conspire to defend the male perpetrators.

Now, I'm glad that the defence of provocation has been abolished. But I have to protest about the way the legal reforms have been reported. Reports like those quoted above perpetuate a stereotype about male oppressors and female victims which is based on an abstract theory, namely patriarchy theory. The stereotype is easily shown to be false.

As it happens, I've already published an article on this very issue, which provides the kind of information which ought to embarrass Rob Hulls, Phil Cleary and Natasha Stott Despoja.

What is this information? A Victorian Law Reform Commission has previously examined the issue of the provocation defence. It found that female defendants were more successful in using the provocation defence than were men. In fact, during the period examined by the commission 8 out of 26 female defendants used the provocation defence and not one was convicted of murder.

The commission also found that men were more successful using the provocation defence when their victim was male rather than female.

Furthermore, even when men were successful in using the provocation defence their average sentence was double that of women who used the same defence.

Not surprisingly, the Victorian Law Reform Commission reported that its data, "does not support the conclusion that the provocation defence generally operates in a gender biased way." In fact, as you can see from the data, if there is any gender bias it is in favour of women rather than men.

The Age report is therefore wrong on two counts. First, the provocation defence was not employed solely by men who had murdered women; rather, it was women who were more successful in using the provocation defence to escape murder convictions.

Second, far from being an instrument of patriarchal control, the legal system is much more lenient toward women than men. If there is any "rooting out" of old-fashioned judges to be done, it will be to identify those judges who are protectively lenient to female murderers, rather than male ones.

Why is it important to correct these media falsehoods? Becuase the assumption that men conspire to oppress women is a destructive one. If offends and ultimately demoralises those men whose natural instinct is to work hard to protect women, and, on the female side, it undermines the trust in men necessary to commit to relationships.

For this reason, we ought to object when the issue of domestic violence is discussed only in terms of male perpetrators and female victims. As anyone who reads a newspaper regularly would know, there are also cases of domestic violence in which it is women who inflict injuries on children, other women or even on their male partners.

The domestic violence issue needs to be addressed without the distortion imposed by patriarchy theory.

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