THE LEGAL LIE OF PROVOCATION

THE LEGAL LIE OF PROVOCATIONArticle published in the Age 19/8/98   

It's four years since I chose Parliamentary Question Time to ask the then Labor Attorney-General, Michael Lavarch, to condemn the anti-female bias of the law of provocation. Now a Federal government report endorsed by Coalition Justice Minister, Amanda Vanstone, who courageously describes provocation "as an excuse for the murder of women", has finally emerged. 

Fatal Offences Against the Person is unequivocal in declaring that provocation "was designed for male patterns of aggression...discriminates against women...(and)....operates unjustly in a modern society". What remains to be answered is why a defence which had its origins in the male violence of drunken brawls and duels has, in modernity, been so readily offered to men who kill their ex-partners, and whether the patriarchal assumptions which drive judges in these cases will disappear with the proposed abolition of the law. 

My own struggle against the law began on August 26, 1987 when the crackling voice of my brother announced over the phone that our 25-year-old sister, Vicki, had been stabbed by her ex-boyfriend and that I should go straight to the Melbourne Hospital. In my recently released book, Cleary Independent, I describe the aftermath as follows: 

'When the surgeon arrived, sister by his side, at the waiting room door, there was no escaping what had happened. The words, "I'm sorry we couldn't stop the bleeding" were virtually redundant, lost somewhere in the mayhem. There was nowhere to turn. God was irrelevant. Vicki hadn't died in an accident brought about by hers or someone else's carelessness. Her life had been violently taken from her. "She'll be with us, Mum, she'll be with us," I said, cuddling and stroking a mother recoiling at the thought that the life of the child she'd brought into the world could be stolen by some other mother's son.'

Outside there were buds on the trees and everywhere spring was preparing to emerge from the dark of winter. People were walking and talking, and the traffic gently continued to crawl towards the suburbs, oblivious to this mysterious act of savagery. 

No Angelus bell rang out to announce the passing of one of God's children. In the newsrooms they were preparing to show the aftermath, bloodstains on the car and pavement, and the blurred image of Peter Raymond Keogh whisked out of Russell Street. "Footballer's sister stabbed to death," they said. But they didn't understand. Ron and Lorna had lost their soul. 

A little while before that phone call I'd rung Vicki to ask if everything was all right."Don't worry, he won't do anything," she'd said. I live to regret that someone hadn't told me about the murderer's documented 27-year history of violence against women.

The girl Peter Keogh stabbed to death.  As with every other woman who dies in such circumstances Vicki Cleary had every right to expect her killer to be convicted of murder.Maybe someday there'll be an apology on behalf of the judiciary, the jury and the state.  Vicki deserves that much. 

Although Peter Keogh was armed with a carving knife when he emerged from his hiding spot and confronted Vicki outside the kindergarten where she worked at 8.00 am, four months after they'd separated, Justice George Hampel granted a defence of provocation because, he told the jury:....it is said that such a state existed where there were acts and circumstances existing for some time beforehand which, in culmination,.. produced a loss of self-control because of the trigger comment that occurred that day by the deceased lady. The 'trigger comment' was an exclamation allegedly uttered by my sister upon being confronted at the driver's side door of her car. 

The circumstances were her refusal to return to a violent relationship. An earlier appearance at the kindergarten by the aggressive Keogh was described by the judge as:..part of a realistic situation...(where)....one person is intense about seeing the other. After my family expressed its outrage at the "not guilty of murder, guilty of manslaughter" verdict, a headline "Family Fury at Sentence" appeared above a tabloid story. The truth was that although Peter Keogh was sentenced to a mere three and a half years gaol, it was the granting of a defence of provocation by George Hampel, and the jury's acquiescence which outraged us. To accept a defence of provocation and the absurd line that a hypothetical ordinary man, even one with the alleged depression of the killer, might have done what this man did, was to cast my sister and, by definition, any woman leaving a man, as provocateur and chattel.

Despite our enshrining in law the right to separate and divorce, many courts continue to act barbarically when they sit in judgement on violent men who murder the women who flee them. And as long as the media run headlines such as, "Love pulls the trigger", or "He did it out of love", and judges recite homilies such as "jealousy is the rage of man, and adultery is the highest invasion of property" (R v Mawgridge) to account for these acts of revenge, they will remain implicated in the culture of violence against women. Witness, Giuseppe Piccolo, unwittingly captured the ideology which pervades so many courts when he said: 
The lady at that stage was screaming and the male... he had his hand over her mouth... it looked like he was punching her . I didn't hear any words . It sort of looked like they were just having an argument .So I just assumed he was beating her up.
The manslaughter verdicts following the stabbing murder of the school girl Zerrin Dincer by her Turkish father in 1981 and the 1987 shot-gun murder of Christine Boyce and stabbing of Vicki Cleary were but the tip of the iceberg. Prior to Christmas 1996 the murder of two women and the two children of another woman by the men in their lives passed almost without notice.

Had the men chosen a court appearance rather than suicide it's a fair bet a defence of provocation would have found its way into proceedings. While this report argues that the culpability of a killer convicted under provocation is often no less than one convicted of murder, and that therefore provocation has no real place in the criminal code, it is silent on why Judges allow a partial defence in cases such as my sister's. 

In suggesting that once freed from 'provocation' Judges will be able to address the issue of culpability in sentencing, the report may well leave the deep-seated assumption of woman as provocateur and chattel, an assumption which underpins many of the pronouncements of our learned judiciary, well entrenched. Until the legal profession, the media and the bloke down the pub confront this assumption, the renovated law will simply camouflage the injustice and continue to demean those ordinary men who would never dream that estrangement might be an excuse for killing a woman, or that men kill out of love. 