Access to Provocation and Self defence

Abstract

The laws of provocation and self-defence have been at the centre of the issue on women who kill their abusive spouses. In order to fulfil the requirement for provocation, a defendant must prove that there was a sudden and temporary loss of self-control, imminence in retaliating and that a reasonable person would have reacted to the provocation in the same way. For self-defence, loss of self-control is replaced with propor tionality of force in retaliating. Feminists campaigning for the release of battered women who have killed their spouses have argued that battered women’s experiences of provocation and self-defence have not been included in the definitions of imminence, self-control and reasonableness governing provocation. Neither have they been included in definitions of proportionality of force, imminence and reasonableness governing self-defence. They have also argued that the application of the defences of provocation and self-defence are discriminatory because women who do not respond immediately to a violent attack by their spouses cannot successfully make a plea of provocation or self-defence. Therefore, the definitions governing the criteria of provocation and selfdefence ought to be broadened to include the experiences of battered women who do not kill immediately. Finally, some feminists have suggested that battered women who kill their spouses should be able to plead self-defence instead of provocation because provocation still carries a conviction of manslaughter whereas self-defence may result in an acquittal of the crime. The difference between provocation and selfdefence is the issue of self-control. In a case of provocation, the defendant is required to prove that he/she had lost his/her self-control because he/she was provoked, and acted out without intent. In a selfdefence case, the defendant, in retaliating against the attacker to defend him/herself, has retained his/her self-control and hence acted with intent.