Death sentence for controversial defence to murder?

Until May 2013, South Australia was the only jurisdiction in Australia that had not formally considered the controversial defence of provocation. Provocation is a partial defence that reduces murder to manslaughter where the victim of the homicide provoked the offender into losing self-control and killing. The acceptability of a homicide victim sharing blame for their death, and a homicide offender being excused for killing in a state of rage, is now widely questioned.

The defence has been abolished, limited, or recommended to be limited, in every other Australian jurisdiction. Greens MLC, Tammy Franks, started the debate in South Australia with a Bill to stop non-violent homosexual advance from serving as provocative conduct.

A theme emerging from the responses to the Bill was that ‘gay panic’ was but one objectionable expression of the provocation defence, and that the defence should be completely abolished because a person should never have a partial defence where they kill in a rage.

Franks has subsequently undertaken public consultation on the possibility of completely abolishing provocation in this state.

Adelaide Law School academic staff Kellie Toole, Ngaire Naffine, Ian Leader-Elliott and Alex Reilly made a submission in support of the abolition of provocation. The submission can be accessed here.

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