It didn’t take an Iago to make James Ramage kill his wife, Julie. Nor had the Australian company director ever felt isolated at suburban dinner parties by the colour of his skin. There were no malevolent outside forces – just a stifling, unhappy marriage that had run its course into middle-age.
--

Othello: “She turn’d to folly, and she was a whore.
Emilia: “Thou dost belie her, and thou art a devil.”
(Othello V.ii.133-34)

Can’t go ‘round saying a guy’s got a small donger. What did she think would happen?
Anon. on the Clayton Weatherston case,
overheard at Shadows, September 2008)

It didn’t take an Iago to make James Ramage kill his wife, Julie. Nor had the Australian company director ever felt isolated at suburban dinner parties by the colour of his skin. There were no malevolent outside forces – just a stifling, unhappy marriage that had run its course into middle-age. Ramage asked her over to their matrimonial home one wet weekday lunchtime and begged for one last chance. Then he punched her and strangled her to death. He put her lifeless body in the boot of his Jaguar, then buried her on a remote bush property. He spent hours cleaning up. Then he turned himself in at the end of the night.

We can’t know what happened for sure at that final meeting, but we do know what Ramage’s counsel told a Melbourne jury: Julie had been having affairs. She had hidden her new relationship from him. She had given him false hope of a reunion. She had laughed at his renovations on the house. Renovations for her. She had told him that having sex with him “repulsed” her. 25 years. He was so angry. He was so angry.

Ramage was found not guilty of murder by a jury of seven men and five women, based on the partial defence of provocation. Julie’s duplicitous, cruel behaviour was such that the long-suffering, lovelorn father of her children couldn’t take it anymore. His lawyer described her behaviour as “the fly that lands on the bonnet of a car teetering on the edge of a cliff.” That sounds innocuous - yet everything from Julie’s libido to her menstrual cycle was called into issue (we all know what women are like around that time – she must have started abusing him dreadfully).



In New Zealand, much was made of the way Sophie Elliott’s family had to see her private life and good name dragged through the muck as her killer, Clayton Weatherston, launched an unsuccessful attempt at the provocation defence in our court system. Spare a thought for Julia Ramage’s twin sister and children. Over days of trial time, they were forced to watch those same tactics pay off.

The appearance of the provocation defence in these cases proved so unpalatable to the Victorian and New Zealand public alike that the outcry led both jurisdictions to abolish it entirely. So is an article on provocation now simply an interesting curio? Not quite, I discovered - it is interesting for what it was, but it also continues to raise questions in its absence. Especially because many lawyers appear to favour its retention, and especially because the question of what happens to female abuse victims who kill – some of whom were often cruelly and systematically left out of provocation’s scope, and some of whom benefited from it themselves – remains in the air.

*

Hutt Valley-based criminal lawyer Greg King was one of the defence counsel that ran Weatherston’s provocation claim on his behalf. Like his co-counsel, Judith Ablett-Kerr, he received unspeakable threats as Weatherston tried to point the finger at his victim during his strange turn in the witness stand. Yet, as he points out, “this isn’t something dreamt up by clever, desperate defence lawyers. And if the defence can’t raise any case at all for it, a judge won’t let it through. It’s been on the books in New Zealand since 1911. It’s existed even longer.”

But no sensible argument for the retention of provocation would want to start from its origins. It developed to cover the conduct of men who generally hadn’t had to defend anything else they did in their lives, to cover their suffered occasional fits of jealousy and wounded pride. It’s perhaps not such a coincidence that its development and refinement coincided with the gradual criminalisation of duelling in Western Europe (around the 17th to 19th century). Men who felt the need to avenge their dignity with bloodshed swapped the risk of sanction for legal justification. By the start of the nineteenth century, English law had the acceptable scenarios for provocation boiled down: coming to the aid of a kinsman, a husband discovering his wife in the act of adultery and a father discovering someone in the act of sodomising his son.

By the start of the nineteenth century, English law had the acceptable scenarios for provocation boiled down: coming to the aid of a kinsman, a husband discovering his wife in the act of adultery and a father discovering someone in the act of sodomising his son. 

Behind all three, of course, lay the law’s perennial concept of the reasonable man. A defendant seeking to argue provocation had to be judged by the standards society had set down for the average Joe, of average self-control and average temperament. Would the particular slight in this case have been enough to tip that ordinary sort of chap over the edge? That a lover’s infidelity or the odd flash of homosexual panic apparently could constitute provocation is something the law – indeed, public policy -still finds itself grappling with 200-odd years later.

By the time provocation appeared on ours (and the UK’s) statute books 50 years ago, courts were clearly uneasy with those early, limited scenarios. More than that, there seemed to be a note of discomfort about what the defence effectively said about human nature. Some things – some people – can make us so angry we can’t help killing them.

Those who argued for the abolition of the defence claimed that people who break like this shouldn’t be excused. King labels such arguments “absolute rubbish. I, for one, can imagine situations where – and I’m not saying I would be proud of it – but I would just lose my power of self-control, you know? We’re emotional beings. We’re not robots. Sometimes we just lose it.” He describes a woman he successfully defended using provocation in 2009. She came home to find her child being sexually abused by a neighbour, lost all control, and stabbed him. “I don’t think that’s an unsympathetic example to give to parents.”

You can sense an attempt to shift away from the bad old days of provocation in the (now-repealed) section 169 of the Crimes Act –

(2) anything done or said may be provocation if in the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control.
 – as well as in the number of thoughtfully reasoned and argued judgments that came in its wake. Provocation came to be directed at a particular ‘characteristic’ – either a mental or physical quality – that might somehow differentiate the offender from reasonable people, while simultaneously appearing to demand the reasonable person’s standard of self-control and restraint. “Walk a mile in their shoes?” I ask King.

“Not quite.” He laughs.

It constructed an awkward hybrid that juries were left to consider in evaluating a person’s guilt – okay, you need to imagine they’re just like you, only, they’re not, because of this mental/physical deficiency they have, so try to imagine how that good, reasonable self-control of yours would work alongside having that mental or physical deficiency. You get the idea. But it often made for complicated instructions to juries.

Interestingly, when it came to matters of ‘characteristics’, judges would often use the example of someone having a ‘physical deformity or infirmity’ – and that’s interesting because it conjures up another provocation scenario that might not fill you (or me) with as much outrage as the one at the start. Imagine a 17-year-old who had disfiguring scars on his face from burns he received as an abused child - losing control, lashing out, and killing one of his high school bullies as their taunting hit fever pitch. I put my hypothetical boy to King. “Good scenario - the example you give is how provocation and how characteristics work.”

But it’s a slippery slope – a physical characteristic of the killer partially explains or excuses why he did it? Try dick size, then. Or the tricky matter of sexual potency. Because men kill women who jeer about those, too. And then argue provocation for it, successfully or not.

Yet even as provocation produced these unpleasant trials and unpleasant outcomes wherever it was preserved, it was helping those who had often been its victims in the past. Take Epifania Sulape, who was subjected to bashings, machete cuts, and infliction of a venereal disease through her husband’s repeated infidelities. She killed him with an axe about a quarter of an hour after he told her he was abandoning her and their children for a younger woman. She was charged with murder. Provocation made it manslaughter.

There’s no suggestion that these victims - terrible specimens though they may have been – deserved to die violently. Yet there was also a recognition by the law that the people who killed them shouldn’t be considered on the same footing, with the same sentences, as ordinary murderers. In the meantime, provocation as a defence seemed to stretch itself beyond its definitional boundaries, providing ever more complicated instructions to juries in the process.

King attributes this to the way courts and lawyers were struggling to fit the partial defence of diminished responsibility into New Zealand law. In many other countries, the defence assists defendants who, by mental incapacity, are not fully responsible for their actions. “To an extent, it filled a gap in New Zealand…the courts have acknowledged we needed a more liberal interpretation. Perhaps we’d be justified if we had diminished responsibility.”

From the outside, it looked a little like provocation was bending backwards to escape its own dark, bloody origins.

*

In 1995, an English woman named Emma Humphreys had her life sentence for murder downgraded to manslaughter after a decade behind bars. She had come from a background of horrendous sexual abuse. She ran away from home at 12 only to end up working the streets. Finally, at 16, she killed her abusive partner and pimp. The Court of Appeal that set her free established that provocation could be cumulative rather than a simple ‘heat of the moment’ brain explosion to pass muster.

But there lay the cruel, blunt disparity behind provocation. It was never intended to cover premeditated killings, and despite the horror of their circumstances, a number of women who have argued it did make that decision to end things – to kill their abusers or tormentors – ahead of the act.

It’s a blunt physical disparity. Men are bigger and stronger than women. A man can lose self-control with less concern for his own well-being or life. Conversely, a 1983 study by Australian legal academic Jocelynne Scutt depicts a haunting mirror image of the kind of acts of violence that women surveyed didn’t perform:

“no woman punched her husband about the head or shoulders…no husband was attacked in the groin...husbands were not kicked and stamped on with heavy work boots. None were pushed against a wall or flung across a room; they were not held down in threatening positions. Strangling and choking were not used.”

When his wife or partner makes him snap, a man can kill her there and then. If a woman did the same against her oppressor, chances are she’d wind up bloodied and beaten – or dead. Men don’t need to premediate a thing. Does this sound the death knell of the defence on a logical basis? It’s a partial defence founded on flurries of passion, not premediation – but men don’t need to premediate to kill their wives. So it was diverging – attempting to excuse a traditional set of circumstances (for men) alongside concessions to female abuse victims. Between a rock and a hard place. I put this disparity to King.

When his wife or partner makes him snap, a man can kill her there and then. If a woman did the same against her oppressor, chances are she’d wind up bloodied and beaten – or dead.

“It’s true. It’s not sexist to say provocation is based on your stereotypical male response. It’s a powerful response and it’s an immediate response. There is some suggestion that women perhaps just don’t operate in that way. That the male psyche just snaps, and the female psyche is more of a slow boil over. The person who broods, stews, and boils over is disadvantaged. And the woman may have to sneak up. And that’s been seen as more pernicious that just strangling someone.”

“Having said that, there have been cases which started to recognise that. There is no longer that need for immediacy or a proportionate response. There’s a growing recognition that people lose self-control at different ways and different times.”

But then, it was gone. Provocation was repealed 116 votes to five in Parliament, and nothing else was instituted in its wake. I ask King what would happen to my scarred boy now. “He’d be hard pushed to avoid a murder conviction. The defence is gone.”

Provocation was repealed in Victoria following a formal investigation. It was replaced with defensive homicide – a new partial defence that specifically assisted victims of abuse, while specifically spurning those who were victims of their own emotional and sexual jealousy.

King believes the government was too hasty when it repealed provocation, and is too cautious now to raise the idea of a new defence to murder to a seething public.

But – pardon the irony – didn’t provocation have this coming? I put to King the suggestion that the courts should have drawn lines on scenarios where provocation could never be raised. Weatherston’s being one.
“I disagree. When a person has lost their power of self-control, they’ve lost their power of self-control. Trying to define it and trying to exclude different fact scenarios for public policy reasons is in my opinion unworkable. There’s no logical or philosophical basis to it. To draw a line and say ‘we’re not going to tolerate this sexually-related crime’ is to my mind completely flawed.”

It’s true – it’s a hard balance. And the hasty repeal of a law due to a sudden media storm is to be balked at. Then there’s the thought of those provocation cases that may come up that can’t be dealt with elsewhere. If we still have a place for sympathy for some of those who lose control, are we to simply recognise it when they get sentenced – as murderers?

One thing’s for sure. The scope to use the defence as James Ramage did, and Clayton Weatherston tried to, isn’t coming back. And as a male, I say ‘good riddance’, because it felt like the law was telling me that as a reasonable man, I have this awful uncontrollable fury at my periphery - that every dark thought I've ever had at being spurned, unlucky or unreciprocated could have a legitimate end in snuffing out what I desired. If I can't have it - if I can't have her - no one can. I don't want this out clause. I don't want to be part of any group in society that can justify doing this to women.

— Joe Nunweek

1 Comment

  1. who is this dick lool

    Posted on April 30, 2010 at 2:29 AM

     

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