'She asked for it' still being used as murder defence
THE line ''she was asking for it'' is alive and well in murder trials in Victorian courts, despite 2005 legislation banning provocation as a defence.
An examination of nine murder trial transcripts, and supporting evidence from 100 cases from other jurisdictions, by Monash University criminologist Danielle Tyson found defence lawyers still peddled the idea that slain females provoked their own killing, and that some judges continued to have some sympathy for provocation-style defences.
Dr Tyson's research, published as the book Sex, Culpability and the Defence of Provocation, is the first to analyse and document the debates about provocation cases involving intimate-partner homicide. She said that in such cases the defendant attempted to shift part of the blame onto the victim by relying on a variety of stock stories, ''such as the nagging woman, the unfaithful or departing wife, or a woman who impugns his masculinity''.
The latter claim was made by James Ramage, who in 2003 bashed and strangled his wife of 23 years, Julie Ramage. His lawyers successfully argued he was provoked into killing her because she had taunted him about loving someone else, and how sex with him had repulsed her. Ramage was convicted of manslaughter, not murder, and spent seven years in jail.
In November 2004, the Law Reform Commission, in a report commissioned by the then attorney-general, Rob Hulls, recommended abolishing the provocation defence. The state government adopted that recommendation in 2005.
In her book, Dr Tyson names six Victorian intimate-partner homicide cases since then in which provocation was to some extent accepted by the judges as a basis for the killings. Two have been particularly controversial.
In November 2009, Anthony Sherna pleaded not guilty to murdering his partner, Susanne Wild. Sherna told police he was drunk and lost his temper in February the previous year when Ms Wild charged at him in anger with a query over a mobile phone bill, frightening his dog, Hubble, which he was rocking to sleep.
Sherna admitted strangling Ms Wild and later burying her body in the backyard, but claimed he had been subjected to years of mental abuse, infidelity, sexual taunting, threats and controlling behaviour. Justice David Beach accepted Ms Wild had been ''controlling and domineering''. Sherna was convicted of manslaughter and given a minimum 10 years in jail.
Dr Tyson says the issue of men claiming defensive homicide - an offence introduced in 2005 to account for killings that occurred as a result of sustained domestic violence and abuse - was one of the most controversial and yet expected outcomes of the banning of provocation as a defence.
Since 2005, 20 men have successfully claimed defensive homicide after killing other men. Only three battered women - for whom the law was designed - have been convicted of the offence.
Most of this had gone under the radar, but in May 2010, Luke John Middendorp became the first man to be convicted of defensive homicide against a woman, for stabbing his partner in the back four times. Victims-of-crime groups were outraged.
Middendorp stood at more than 186 centimetres and weighed more than 90 kilograms - almost twice the size of Jade Bownds, 22, who he claimed tried to attack him.
When Ms Bownds staggered from the Brunswick house where she had been mortally wounded in September 2008, Middendorp was heard to say, ''You filthy slut, you got what you deserved.''
The downgraded conviction meant he could be free in just over six years from when he was jailed.
In August 2010, following this case, the Victorian Justice Department began a review of defensive homicide, but this has stalled since the Baillieu government took power.