Provocation, Gender and the 2011 Charter of Rights

Provocation as a partial defence to murder is a gendered defence; it is steeped in patriarchal notions of male behavior and consequently favours men as opposed to women. Caroline Forrell supports the view; saying, “the origins of the provocation defense are deeply gendered; it was created for and has always been used far more often by men than women… the provocation defense began as a common law doctrine about men defending their honor”[i]

This analysis of the law is applicable to our current statutory promulgation of the defence within the context of our patriarchal society. Section 6 of the Offences Against the Person Act of Jamaica, 1864 reads as follows:

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man (emphasis added).

Apart from the fact that the statute speaks to a reasonable man, consideration needs to be given to the oppositional construction of gender identities. Allan Johnson explains that patriarchy is the system in which male and female identities are constructed and understood as opposite to each other.[ii] To be male is to be strong, assertive, aggressive and rational; however, to be female is to be weak, submissive, emotional and delicate. He also comments that patriarchal societies are male-identified. This means that the experiences and attributes of men are treated as the normal for all persons. Men and their lives become the norm.[iii] Barry Chevannes further comments that within the process of socialization within our Jamaican society, these stereotypes are taught to our children.[iv] In this way, boys are raised to be independent of the household, to be strong protectors, to be defenders and heroes whereas girls are raised to be domestics, ladylike, to be the princesses that deserve to be rescued. Of course, this gender script has manifested differently in varied scenarios but the essence is maintained. Men lead, women follow. Where women lead, they are viewed as emotional and sympathetic leaders, but men are automatically viewed as rational leaders. Being a man means that one must not be cowed and his voice must be heard, whereas a being a lady emphasizes being mild-mannered and meek.

What does this mean for provocation? This means that the defence which requires that the defendant must lose his/her self-control and instantaneously respond[v] to being provoked requires a male standard of behaviour. It is men who are taught to be aggressive and confrontational. Women are taught to be long suffering. Women are taught to act like ladies in the face of adversity whereas men are taught to be champions. The result, it is socially unlikely that women will respond instantaneously to provocative conduct. One example is the case of R v Ahluwalia[vi]. This was a case of a battered woman whose life had been continuously threatened by her husband. In response to the continued abuse, she set him and the house ablaze while he was asleep. Her response was not characteristic of the stereotypical male who is expected to respond to violence with immediate violence. While the ruling in this case did allow that a delay in one’s response to provocation did not negative the defence by that fact alone, her conviction on voluntary manslaughter was by reliance on Battered Women’s Syndrome.

Accepting that provocation is a gendered defence because all defendants are required to meet a stereotypically male standard of behaviour, we must ask ourselves whether this defence is consistent with a Charter of Rights that prohibits discrimination on the basis of being male or female in section 13(3)(i). There is no current case law on the scope of this section and more particularly whether it covers discrimination on the basis of gender stereotypes i.e. whether one is discriminated against because of the stereotype that is associated with one’s gender and/or for not acting according to one’s gender script. We are required in international human rights law to eliminate gender stereotypes. Articles 5(a) and 2(f) of the Convention on the Elimination of All Forms of Discrimination Against Women requires the State to respectively:

Take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (emphasis added)

And;

Take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women (emphasis added)

With that in mind it is imperative that our courts, in interpreting section 13(3)(i) of the Constitution, recognize that our State has a duty to modify law which discriminates against women on the basis of gender stereotypes. That being said, the approach by Conteh CJ in Wade v Roches[vii] should be the preferred approach to understanding gender discrimination cases as opposed to that in Attorney General v Jones[viii]. In the latter case, a four year old Kaleel Jones was denied entry into a public school because his parents refused to cut his hair to meet the stipulated regulations against “stylish hair” for boys. Girls, however, wore their hair at various lengths. The St. Kitts Court of Appeal in this case reasoned that since the regulations were based on cultural convention and that girls were also subjected to certain gender specific regulations, then there was no discrimination. In effect the court said that since both boys and girls were being held to patriarchal notions of gender which denied them rights, there was no gender discrimination; as opposed to recognizing that both boys and girls were being held to stereotypes of their gender and both were being discriminated against.

In Wade v Roches, however, Conteh CJ was not content with accepting that a blanket regulation which called for the dismissal of all teachers who did not live according to the teachings of Jesus Christ (i.e. having a child out of wedlock), did not amount to gender discrimination. Conteh CJ recognized that such a standard put women at a disadvantage because women showed pregnancy. The women’s peculiar circumstances put them at a disadvantage and therefore subjected them to discrimination. Similarly, the rules regarding provocation put women at a disadvantage because of their circumstances i.e. a patriarchal socialization. By punishing women who do not meet a male standard because they were raised as opposites to men, they are effectively being discriminated against.

Whereas in Wade v Roches it was easy to acknowledge the biology of women, as it regards the law on provocation the court will have to address its mind, as CEDAW points out, to the social and cultural patterns of conduct of men and women which are based on their stereotyped roles. If our Courts mean to fully recognize and vindicate the right to non-discrimination on the basis of being male or female, serious thought must be given to the social notions of maleness and femaleness and how the law treats with those notions.

[i] Caroline Forrell, ‘Gender Equality, Social Values and Provocation Law in the United States, Canada and Australia’ (2006) Bepress Legal Series 699 <http://law.bepress.com/expresso/eps/699&gt; accessed October 23, 2014

[ii] Allan Johnson, The Gender Knot: Unravelling Our Patriarchal Legacy (Temple University Press 2005) 86

[iii] Ibid 7

[iv] Barry Chevannes, What We Sow And What We Reap (The Grace Kennedy Foundation Lecture Series 1999)

[v] In R v Duffy [1949] 1 All ER 932, the court held that there must be a sudden and temporary loss of self-control. Therefore the existence of cool down time would suggest that the defence of provocation would fail.

[vi] [1992] 4 All ER 889

[vii] BZ 2005 CA 5

[viii] KN 2008 CA 3

Glenroy Murray., 2015

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