However, upon closer examination, the exclusion of non-violent sexual advances may not be as effective as proposed, especially taking into consideration the experiences of other jurisdictions with provocation reform. Because the reformed s23(3)(a) provides that conduct does not constitute provocation if it was only a non-violent sexual advance, the provocation defence may still be used in circumstances where the homosexual advance was one of multiple provocative acts. In England, the provocation defence was reformed into a defence of ‘loss of self-control’ which required a qualifying trigger. Like the non-violent sexual advance exclusion in NSW, ‘facts or things said that constitute sexual infidelity’ were excluded by UK legislation from being able to constitute a qualifying
…show more content…
In the English case of Clinton, where the accused killed his wife after she had taunted him about his suicidal tendencies as well as her infidelity, the trial judge withdrew the defence of ‘loss of self-control’ from the jury on the basis that the wife’s remarks relating to her sexual infidelity had to be disregarded in accordance with the law, and therefore there was insufficient evidence to raise provocation. However, the appeal court held that events cannot be isolated from their context, so, notwithstanding the express exclusionary provisions, sexual infidelity was taken into account and Clinton was able to raise the defence. This case highlights a major flaw within the exclusionary provision, since cases involving provocation are rarely simple and often involve a complex combination of factors, an excluded factor may be combined with other non-excluded
In the English case of Clinton, where the accused killed his wife after she had taunted him about his suicidal tendencies as well as her infidelity, the trial judge withdrew the defence of ‘loss of self-control’ from the jury on the basis that the wife’s remarks relating to her sexual infidelity had to be disregarded in accordance with the law, and therefore there was insufficient evidence to raise provocation. However, the appeal court held that events cannot be isolated from their context, so, notwithstanding the express exclusionary provisions, sexual infidelity was taken into account and Clinton was able to raise the defence. This case highlights a major flaw within the exclusionary provision, since cases involving provocation are rarely simple and often involve a complex combination of factors, an excluded factor may be combined with other non-excluded