Issue Two

Violence Against Women and the Defence of Provocation in the Republic of Ireland

Violence Against Women and the Defence of Provocation in the Republic of Ireland


Clíodhna Ní Chéileachair

University College Dublin

Provocation operates as a partial defence to a murder conviction in Ireland. The defence is intended as a ‘concession to human frailty’[1] in recognition of the fact that individuals will, under certain circumstances, lose control of themselves in response to the actions of another. It is a controversial defence, as it requires that the victim be partially blamed for their own death. The law of provocation has had a particular relationship with issues of sexism and male possessiveness since its inception. When distinct categories of provocative conduct emerged in the seventeenth century in English jurisprudence, culminating in the report on Mawgridge’s Case, the act of adultery was considered to be particularly provocative, the report noting;

Where a man is taken in adultery with another man’s wife, if the husband shall stab the adulterer… this is bare manslaughter; for adultery is the highest invasion of property, and there cannot be a greater provocation.[2]

This article will focus on the application of the defence in excusing male possessiveness and sexual pride, and ignoring killings done by abused women in reaction to that abuse in the context of Irish law. In particular two aspects of the Irish law will be considered, namely, the subjective test for whether the individual was provoked, and the requirement that the provocation be ‘sudden and temporary’

I. The Law in Ireland

The Irish position on the defence is considered and determined in the seminal Irish case on provocation, The People (DPP) v MacEoin[3]. In this case, the defendant killed the victim in response to being attacked by the victim with a hammer. The case was appealed to the Court of Criminal Appeal, and the court took the opportunity to review the law of provocation generally. The operative judgment is that a jury should have regard to the accused’s temperament, character and circumstances in determining whether the deceased’s acts caused the accused to lose control of themselves. In effect;

If what is relied on as provocation actually provoked the accused (whether it would provoke a reasonable man or not) the prosecution [has] to prove beyond reasonable doubt that it did not.[4]

The court retained elements of the English law in crafting the subjective test for provocation, in particular, the requirement that the loss of control suffered when provoked be ‘sudden and temporary’.

Subsequent cases have refined the test in MacEoin, as the wording of the test has led to the misdirection of juries in numerous cases where judges muddled the subjective test with the requirement that the force used be proportionate to the subjective provocation, leading to the application of a de facto objective test in many cases. Nonetheless, MacEoin remains the definitive statement of Irish law.

Flowing from MacEoin and these subsequent refinements, provocation has two primary elements which are salient to a discussion of how the defence operates in a gendered manner, which will be dealt with in sequence. The first is the manner in which the provocation is judged, i.e. the subjective test. The second is the requirement that the loss of control suffered be sudden and temporary.[5] A general description and criticism of the subjective test will be offered before turning to why it, and the requirement for suddenness, operate to structurally benefit hyper-masculine reactions to provocative events.

II. The Subjective Test

Ireland’s purely subjective test is unique in the common law world, and the court in MacEoin represents a radical departure from the previous law. In crafting the subjective test, the court relied heavily on the dissent of Murphy J in the Australian case of Moffa v The Queen[6]. The justification provided in that judgment for abandoning the objective test is that the objective test cannot ‘withstand critical examination’[7] for two reasons. The first is that it ‘does not sit with the heterogeneous nature of modern society’[8] to require all individuals to abide by the same standards. On face, this criticism seems shallow. The entire system of law presupposes that regardless of individual differences, all legal subjects must be subject to the same standards. Moreover, provocation is considered a concession to human frailty, and rightly or wrongly, a condition of humankind that under certain circumstances anyone would lose control. As such, it is entirely logical to speak of a loss of control under ‘reasonable’ circumstances. The fact that the defence exists at all suggests that there is common ground for human reactions and a base level of provocative conduct that could conceivably affect all human beings. Importantly, the objective test is also malleable. It can develop with the mores of the society at large, and keep pace with the development of our understanding of human behavioural psychology.

The second objection to the objective test is that it is not clear, in the court’s opinion, whether the reasonable man is a ‘complete stranger subject to the provocative conduct, or a person in the same circumstances as the accused’[9]. In effect, the court is choosing whether the reasonable man is completely alien to the circumstances of the accused, or else is in exactly the circumstances of the accused. The court correctly identifies that the latter, an objective test that takes all the circumstances of the accused into account, is simply a subjective test, and here lies the court’s justification in collapsing the objective test altogether, because the court in MacEoin seems committed to taking the circumstances of the accused into account. There is no justification provided for this primary commitment. It is unclear from the court’s judgment why the specific relationship of the accused to the deceased must be considered in determining whether the killing can be legitimated. Certainly, the specific relationship of the accused to the deceased can explain why the killing happened, but it should not partially excuse it. The court goes on to detail that ‘a hot-tempered man may react violently to an insult which a phlegmatic one would ignore’[10]. This is presented as a justification for allowing a defence to the hot-tempered man, notwithstanding the fact that his hot-temperedness is unreasonable. This is problematic because it seems that there is no pressing need to excuse the actions of those who are unreasonably hot-tempered, or if there is, it is never supplied by the court in doing so in MacEoin. The fact that the hot-tempered man does lose control does not on its own provide a ground for excusing that loss of control. In fact, any extended analysis of this subjective test soon descends into absurdity.

The fact that one is constitutionally disposed towards lying would not, and ought not to grant such a person an excuse when they do so in court, nor should one’s violently racist views offer them a partial excuse when they commit hate crimes. Certain temperaments are ones that the law generally considers to be indefensible, in particular, being violently intolerant. Irish law has seen the reality of what the subjective test defends in the multitude of Irish cases where provocation was successfully pled due to a wife or female partner’s actual or perceived adultery, due to ‘homosexual advances’ by the victim[11], or due to an affront to the individual’s sense of masculinity by another man. The objective test can be problematic because it is, in essence, a metaphorical import of societal views of what is reasonable into what we expect of defendants. It ought to be noted that what socially considered to be ‘reasonable’ is not mutually exclusive with views that are sexist, patriarchal, and problematic; often in fact, these amount to precisely the same views. By way of example, the courts in the United Kingdom have repeatedly upheld that the reasonable man is provoked to the point of killing by discovering his partner is engaged in adulterous behaviour.[12]

However, even given this fault, the subjective test is far more problematic than the objective test. The protection of sexist views is comparatively worse under a subjective test, because there is no need to mediate provocative events through the lens of what is socially acceptable. While sexist and patriarchal reactions may be considered reasonable under an objective test, and the test may therefore fail to filter out problematic killings, the subjective test has no filtering mechanism at all. No matter how motivated by possessiveness, male sexual pride, racism, violent sexism or any other problematic ideology, any killing may be excused if the defendant was actually provoked, and acted on that provocation. As such, the law in Ireland operates to benefit those who are quick to lose control, or who lose control under circumstances that are unreasonable. The Irish Law Reform Commission Report on provocation is critical of the test in MacEoin, noting that under such a test, ‘immoral and anti-social traits are protected’.[13] Moreover, it is impossible to place policy limitations on what can be considered a ‘reasonable’ circumstance in which to lose control where the test is a wholly subjective one.

The United Kingdom have done precisely this in the context of the objective test, in their equivalent ‘loss of control’ defence, where adultery has been explicitly excluded as a ground for provocation for policy reasons.23 This is possible because the courts are interpreting whether an action is reasonable, and this policy limitation operates as a tool used by the court to determine whether an action was reasonable or not. Any such move to place limitations on what could be a qualifying trigger would move the test back into objective territory, which the Irish courts have strongly resisted. It is not possible for Irish judges to exclude certain triggers, like sexual infidelity. They may only have regard to the subjectivity of the defendant in determining whether they were provoked or not. As such, not only is the subjective test overly permissive, it is structurally impossible to narrow the claims which may be regarded as legitimate under the test.

Beyond these initial substantive issues with the law, there are internal inconsistencies in the application of the law, due in large part to its overly permissive nature. The claim that the defence goes to the individual mind-set of the deceased is not borne out in all aspects of the application of the law. For example, no matter the subjective mind-set of the defendant, he is never entitled to act against an individual who did not provoke him. There is no provocation defence for an individual who reacts to a provoking event by attacking his provoker’s family, or members of his provoker’s identity group. Similarly, the defendant is never entitled to plead that he was provoked by mere circumstances, e.g. the loss of control by a farmer where his crops are destroyed by flood, or his flocks by foot and mouth[14], nor is the defendant entitled to claim that he was reacting to ‘hearsay’ provocation[15] or reacting because of his state of intoxication[16]. These are eminently reasonable limitations of the applicability of the defence, but if the law were truly only concerned with the subjectivity of the accused, then this would be unjustifiable. If it is the case that the defendant was so provoked by the actions of someone that he burns down a halting site, or by the loss of his crops that he attacks another human being, the fact that the court considers these to be unreasonable reactions to being provoked cannot be filtered out by a subjective test. The fact that the courts do so anyway is a recognition that the subjective test fails to distinguish between losses of control that are justifiable, and those which are not.

Beyond this internal inconsistency, any legal analysis which concerns itself solely with the subjective mind-set of the accused is contradictory to a stated set of objectively given and received norms by which we must live our lives, and as such, to the law itself. It should always be borne in mind that the defence of provocation is a legal construct. It need not exist. The fact that it does exist is a boon to the accused, and creates a huge responsibility on the court’s part to ensure that it does not provide undue defence to people who are the first to lose control in a situation, or who lose control where it is eminently unreasonable to do so. The current state of Irish law provides a defence to individuals- overwhelmingly men-who kill their partners for committing adultery, threatening to leave them, or who kill other men for making comments which attack their sense of masculinity. Of the fourteen cases that have discussed MacEoin, all involved male defendants, and eleven involved the killing of a female partner. The fact that the test allows the defendant to lose control for any reason necessarily privileges those who are primed to lose control, which generally captures a subset of people who are emotionally domineering, have a sense of entitlement to other people and their actions, and who react viciously to any perceived boundary-crossing by people who the defendant seeks to dominate. In short, it privileges the poisonously hyper-masculine experience.

III. Sudden and Temporary Loss of Control

The reconceiving of the defence in MacEoin retained the classic requirement that the loss of control experienced by the defendant be sudden and temporary;

The loss of self-control must be total and the reaction must come suddenly and before there has been time for passion to cool. The reaction cannot be tinged by calculation…[17]

This is a structural reason that the defence privileges hyper-masculine responses to conflict or shock. In order to explore why this is the case, certain remarks must be made about the particular character of actions that are protected by the defence of provocation, under a ‘sudden and temporary loss of control’. Actions that are protected by the defence of provocation have a particular character that is different to the loss of control judged in cases of insanity, automatism, duress or intoxication. Where it is believed that the perpetrator of a crime has lost control of themselves and is not responsible for that loss of control, it is considered insanity and they are not held responsible for their actions. Our understanding of those actions is that they do not meaningfully belong to the perpetrator; they could not refrain from doing the action, and thus they cannot be blamed for it. They were not responsible for the actions they undertook while insane and they were not responsible for being insane. This dual non-responsibility is crucial, because it ensures that insanity does not capture those who are responsible for their own inability to control their actions, for example, when intoxicated. An intoxicated person is understood to not be meaningfully in control of their actions, but they are nonetheless held responsible for their actions because they themselves chose to be intoxicated, and thus ‘chose’ to commit those illegalities. Given that provocation is not a full defence, the perpetrator can be understood to be partially responsible for their actions. Logically, this means that either they retain some control of their actions during the provoked crime, or they themselves are partly to blame for the fact that they have lost control. Nonetheless, unlike intoxication, their loss of control is considered to be excusable, and thus they are supplied with a defence.

Herein lies the issue. It is not the case that all people will allow themselves to lose control under the same circumstances. People allow themselves to lose control when the risk to themselves is not untenable. In particular, those who have a size, strength, and emotional advantage over their opponents can allow themselves to lose control where those who are smaller, weaker, or emotionally dominated cannot, because the latter category are individuals who fear they will be killed if they are the ones to lose control.. This is the reason that socially forceful and dominating individuals are the ones who are protected by provocation defence; because they are individuals who are capable of losing control without undue risk to themselves. This is a category of individuals which includes hyper-masculine individuals, emotionally domineering individuals, and individuals who are simply stronger than their opponents. This can explain why there is a huge discrepancy in the number of men successfully claiming that they were provoked, or simply claiming that they were provoked at all compared to the number of women who do so.

The recent cases where provocation has been pled reveal the practical truth of who the law protects, and who the law fails to protect. In DPP v Cahoon[18], the accused pled provocation where the defendant demanded that he leave during a sexual encounter and intimated that she intended to abort his child, whereupon the defendant testified “That’s when I lost it, I just grabbed her”[19]. DPP v Murphy[20] is another recent case where the defendant killed the deceased, a former partner of his, when she suggested that she was waiting for another man to visit her that evening. In The People v Hussain[21], the defendant killed the man with whom his estranged wife was having an affair. There are no reported Irish cases where a female defendant has pled provocation because her male partner threatened to leave her, or committed adultery. Women are not primed to lose control over adultery in the manner that men are, because the premium placed on female purity is not mirrored in a premium on male sexual fidelity. Moreover, women are often not in a position to lose control at all. The law effectively excludes the survivors of assault and domestic abuse – individuals who are overwhelmingly female- who are often subject to domination and violence at the hands of their abusers, such that retaliation would probably risk very severe injury to themselves, or even death, were it to occur during an abusive episode. Instead, it is common for domestic abuse survivors to wait until their abuser is incapacitated, often while asleep, and generally at a temporal remove from what is legally considered to be a qualifying trigger. Barron puts this succinctly;

This is illustrative of a general problem for women who kill their abusive partners: they kill at the wrong time… that is, for purposes of having the usual defences to homicide available to them, but the right time if they wish to avoid being killed while attempting to kill.[22]

Moreover, the fact that the loss of control must be sudden benefits those whose methods of provocation are coupled with instilling fear into their eventual attacker, for example, a domestic abuser who terrorises their victim. This was discussed by Lord Gifford in R v Thornton[23], who argued that the ‘sudden and temporary loss of control’ test was no longer appropriate in cases where the defendant had been the subject to a long course of provocative action, instilling fear in them, and sapping their resolve. The response of the courts to this conundrum has been to accept that cumulative abuse can make comprehensible the loss of control to a minor incident. In effect, the court has artificially extended the provocative event to cover the cumulative period, so the sudden and temporary loss of control is in reaction to the entire period, and not simply the immediate fight[24]. This accounts for extreme reactions to small triggers. However, the defence is nonetheless only available to defendants who react suddenly to a provocative incident. This extension is insufficient to capture the morally significant reactions of women who are provoked over a cumulative period of time, but who nonetheless do not react suddenly to any single event in a sudden manner.

There is a recognition that cumulative abuse can trigger a provoked killing, but there is no parallel recognition by the courts that a cumulative period of abuse can affect how the defendant reacts, i.e. in a manner that is not sudden, because if they react suddenly, they will be killed by a generally larger partner who has dominated them physically and emotionally over a cumulative period of abuse. This is a critical lapse in the courts’ reasoning and does not solve the underlying issue, which is that a requirement for suddenness privileges those who are first to lose control in a situation, capable of losing control in a situation, and will not risk their lives or bodily integrity if they lose control. To illustrate the issues that inhere in this conception of the defence, consider the following scenario; if a domestic abuser kills his partner because she stands up to him, it is more likely that he could successfully plead provocation in killing her than that she could in a parallel situation where she later kills him for his continuous abuse. This is an endemic issue, considering that 46% of female homicide victims are killed by a current or former partner, compared to 7% of male homicide victims[25].

Further, the courts seem oblivious to physical differences between men and women. In the case of Thornton, the jury were directed to convict the defendant of murder instead of manslaughter because she left the scene of provocation to fetch a knife, which was characterised in court as premeditation. Clearly this is a characterisation of provocation that favours those who have immediately to hand the means to kill their provoker, namely, their own strength. Men often kick, strangle or otherwise use their own force to kill their provokers; women generally need the assistance of a weapon to augment their comparative physical disadvantages. Of provocation cases pled before the Irish courts, a large number concerned male defendants relying on their ability to inflict damage using, for example, kicks to the head[26], strangulation[27], or general physical trauma and the shock associated with it[28] to kill their victims. Comparatively, as one might expect, the vast majority of cases concerning female defendants involve the use of weapons, poisonous substances or fire.

Women, and in particular survivors of domestic abuse are not failed by the defences; they have been written out of them. This is because their response to being provoked must be more measured because their provoker is more aggressive and generally stronger than they are. Thus, often, their provoked conduct occurs too long after the triggering event to be included in the defence, or else the reaction requires a weapon in order to succeed, the acquisition of which can count against them as premeditation, placing them outside the ‘suddenness’ requirement.

IV. Conclusion

The Irish law of provocation operates in a grievously gendered manner. The subjective test and the requirement that the provoked reaction be sudden are structural barriers to the inclusion of non-masculine reactions to what are considered provocative events, and as a result, the law operates to unjustly privilege the hyper-masculine experience. If the partial defence is to remain, the subjective test ought to be abandoned in favour of the flawed, but nonetheless preferable objective test, which can be finessed to provide rich interpretive ground for the human experience in a non-gendered manner. The law ought to refine the requirement that the provoked act be ‘sudden’ in order to account for common disparities between male and female defendants, and in particular, the law ought to recognise that cumulative provocation can skew the manner in which the defendant reacts, and not simply extend the period of provocation to cover the cumulative period.

Whether the defence of provocation has anything to commend to it is a question that is beyond the scope of this interrogation, but if it is to remain, it must be meaningfully reformed in order to act as a concession to human frailty instead of male frailty, and cease acting as the latest in a string of historical excuses for men who kill their female partners.

[1] R v Curtis (1756) 168 ER 67.

[2] (1707) 90 ER 1167, 12

[3](1978) IR 27 (CCA).

[4] ibid 30.

[5] People (DPP) v Kelly (2000) 2 IR 1 (CCA).

[6] (1977)  HCA 14, 13 ALR 225.

[7]ibid 33.

[8]ibid 33.

[9]ibid 33.

[10] MacEoin (1978) IR 27 (CCA) 4.

[11] DPP v Bambrick (1996) 1 IR 265 (CCA).

[12] Mawgridges Case (1707) 90 ER 1167, 12; R v Smith (Morgan) [2000] 3 WLR 654

[13] Law Reform Commission Consultation Paper on Homicide: The Plea of Provocation (CP 27- 2003) 57.

[14] Smith and Hogan Criminal Law (2nd Edn, Butterworths 1965) 365.

[15] R v Fisher (1837) 173 ER 452.

[16] R v McCarthy (1954) 2 QB 105, 2 All ER 262.

[17] People (DPP) v Kelly (2000) 2 IR 1 (CCA) 11.

[18] (2015) IECA 45, 3 JIC 0401.

[19] ibid, 4.

[20] (2015) IECA 314, 12 JIC 1503.

[21] (2015) IECA 22, 2 JIC 1602.

[22] Marcia Barron ‘Gender Issues in the Criminal Law’ from Oxford Handbook of Philosophy of Criminal Law (Oxford, 2012) 345.

[23] (1995) EWCA Crim J1213-1, 1 WLR 1174

[24] The People (DPP) v Donoghue (HC, 20 March 1992).

[25] ONS Violent Crime and Sexual Offences- Homicide (February 12 2015) 1.

[26] DPP v Zhao (2015) IECA 189, 6 JIC 2606.

[27] The People (DPP) v Cahoon (2015) IECA 45, 3 JIC 0401.

[28] The People (DPP) v Davis (2001) 1 IR 149.

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