Alberta Report

Monday, April 5, 1999

Girl-Rules Imperilled

Ottawa Wants To End The 'Provocation' Defence In Murder-But There's Just One Little Problem

Ralph Klassen strangled his wife; Kimberly Kondejewski shot her husband to death. In court, each claimed that their spouse provoked them to commit murder. Klassen was eventually sentenced to five years in prison. Kondejewski was set free. While Klassen's use of the provocation defence has sparked public outrage and led to debates in the House of Commons, few are questioning the "battered-wife defence" that got Kondejewski off the hook. Federal feminists may now face a simple question: how can they crack down on "provoked" men without doing the same to husband-slaying heroines?

On March 16, NDP MP Louise Hardy, enraged by Klassen's five-year sentence, introduced a private member's bill in an attempt to abolish the 109-year-old provocation defence, which is written into section 232 of the Criminal Code. The seldom-used defence allows judges or juries to reduce a second-degree murder charge to manslaughter if the killer acted in the "heat of passion" and had been provoked to the point at which an "ordinary person" would lose "the power of self-control." Ms. Hardy says the provision was used at a time when men were compelled to preserve their honour and women were objects. She questions its relevance to modern-day law.

In 1995, Klassen, 45, strangled his estranged wife, Susan, 36, in the bedroom of their Lake Laberge, Yukon, home. The jury accepted Klassen's claim that he lost control when Mrs. Klassen made a provocative remark concerning his masculinity. He was found guilty of manslaughter. Outraged that a victim was supposedly being blamed for her own murder, more than 1,000 people signed a petition urging Ottawa to ban the provocation defence in cases of wife slaughter.

However, there was no similar outcry when a female spouse-killer was released in 1998. On May 15, 1997, Kondejewski of Brandon, Man., fatally shot John Kondejewski three times after waiting, gun in hand, for him to get home from a rifle club meeting. Her lawyer told the court that Kondejewski suffered from "battered wife syndrome" and hence had no choice but to kill her husband. A nurse applauded the court's message to the public. Men, she declared, cannot abuse women without suffering the consequences.

A discussion paper put out by Justice Minister Anne McLellan last summer points out that abolishing the provocation defence could potentially threaten the battered-wife defence. Ms. Hardy, however, believes that the two defences cannot be compared. She says that a woman who has been illegally beaten for years should not be blamed for acting in self-defence. She also told the National Post, however, that she "abhors the thought that we will make excuses when it comes to taking a human life."

The logic of the provocation defence was perhaps clearer when murder was still punishable by death. Early beneficiaries included a father who caught someone sodomizing his son and a husband who discovered his wife in bed with another man. Rather than eliminate the defence altogether, Ottawa may choose to tighten it up; it could be specifically eliminated from cases involving spousal killings, or the relevant clause could be rewritten so that only actions, and not words, could be treated as provocation.

Either of these amendments might place men at a disadvantage. Donald DeMarco, professor of philosophy at St. Jerome's College in Waterloo, Ont., argues that verbal abuse directed towards men in domestic situations is seldom taken seriously. "A woman can verbally castrate a man," he observes, "but if a man slaps a woman in the face, the law crashes on his head." Prof. DeMarco argues that all forms of abuse must be addressed and legal inconsistencies based on gender should be eliminated. The natural differences between men and women are slowly disappearing, he notes; women are no longer so limited by their smaller physical stature. A woman, he concludes, should not be treated with greater legal leniency.

Paul Moreau, lawyer and former crown prosecutor, agrees. Although murderers in cases of provocation are not held fully responsible, they are still held accountable for their actions. Mr. Moreau says that clearer guidelines should be made to ensure that the defence is used appropriately in given situations. However, the provision should not be abolished. "Human nature," he observes, "has not changed so much in the past century that we are no longer moved to acts of passion."

-- Carmen Wittmeier

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