ALL MURDERS ARE ILLEGAL, BUT SOME ARE MORE ILLEGAL THAN OTHERS: A FEMINIST ANALYSIS OF THE COMMON LAW DOCTRINE OF PROVOCATION

Abstract

There exists a robust body of scholarship addressing the common law doctrine of provocation and its use in justifying and excusing murders predicated on female sexuality, but the field has largely been abandoned during the past decade. This thesis proposes a return to the question and a reopening of the debate. It begins by reviewing and updating the literature on the historical development of the doctrine and the philosophical assumptions about reason and emotion that underlie it. It then moves into a comparative analysis of reform efforts in the United States, England and Wales, and Australia and policymakers’ failure to effectively shift the doctrine’s gendered implications. It ends with a discussion of provocation’s potential to serve as an entrance into a larger research agenda about gender and law and to inform the complicated task of feminist law reform. The doctrine of provocation is not merely an extreme example of a legal loophole but rather an indication of a deeper tendency in the common law, built as it is on the foundation of precedent and tradition, to represent the interests of (white) men at the expense of others. As such, provocation remains a fertile site for research on gender and law.