Gender Equality, Social Values and Provocation Law in the United States, Canada and Australia
Journal of Gender, Social Policy and the Law, Vol. 14, No. 1, 2006
45 Pages Posted: 23 May 2006 Last revised: 11 Aug 2014
Date Written: February 4, 2011
This article examines and compares the partial defense of provocation as it applies to domestic homicide in the United States, Canada and Australia. It looks at both the male-gendered basis for provocation of jealous rage and the female-gendered basis of fear. The article explains why substantive equality, prevalent under Canadian constitutional law, has not resulted in woman-friendly provocation rules in Canada. It also explains why Australia, instead of the United States or Canada, is the leader in incorporating substantive equality into its provocation doctrine. It concludes that the main reason that some Australian jurisdictions have abolished provocation and others have woman-friendly versions of the doctrine is because, unlike Canada and the United States, some Australian states do not have mandatory minimum sentencing for either murder or manslaughter. It further concludes that current social norms have incorporated substantive equality into the application of provocation law in all three countries, and that therefore, there may not be as great a need to reform the law of provocation as there has been in the past.
Keywords: provocation, domestic violence, murder, manslaughter, comparative law
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