Post-Provocation Sentencing in Domestic and Non-Domestic Homicides: The Role of Mental Illness and/or Impairment in Defence Narratives

Dr Danielle Tyson1, Professor Rosemary Hunter2
1Deakin University,  Burwood, Australia, 2Queen Mary University of London, London, England

In 2005 the Australian State of Victoria abolished the defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. In a systematic examination of post-provocation judicial sentencing decisions, we found that while elements of victim-blaming and arguments based on provocation certainly remained present in defendants’ pleas in mitigation, they were generally rejected by trial judges. Beyond this, we identified a greater emphasis by defence counsel and some judges on mental illness or disorder as an avenue for offenders to argue for reduced culpability or as mitigation in sentencing. While a small number of judges explicitly rejected these claims, the use of mental illness as an explanatory narrative in these cases requires further analysis. In this paper we present preliminary findings from a study of the role of mental illness and/or impairment in sentencing in cases of domestic and non-domestic homicide. Our analysis suggests that while the 2005 reforms have had some success in challenging the gendered assumptions underpinning provocation’s victim-blaming narratives, it is possible that in the absence of the provocation defence, these assumptions may be redeployed as part of the defendant’s mental health narrative.


Dr Danielle Tyson is Senior Lecturer in Criminology at Deakin University, co-director of the Monash/Deakin Filicide Research Hub and co-facilitator of the Addressing Filicide bi-annual conference series. Her research interests include legal responses to intimate partner homicide, homicide law reform, filicide in the context of separation and gender, justice and sentencing.



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