‘Asking For It’: An Anatomy of Provocation

Citation: 13 Austl. Feminist L.J. 66 1999

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'ASKING FOR IT': AN ANATOMY OF PROVOCATION

Danielle Tyson*

We die.That may be the meaning of life. But we do language. That may be the measureof our lives. 1

Writing about the failure of the common law tradition to acknowledge itself as an historically,rhetorically and semantically organised process, Goodrich calls for an understanding of legal reasoningand language as social practice and discursive formation; a linguistic register or literary genre that canbe described in terms of its privileging of legally recognised meanings (modes of inclusion) andsimultaneous rejection of competing meanings (modes of exclusion). 2 The facts of the event do notlie somewhere outside interpretive or representational practices as if waiting to be discovered, observed,explained and re-presented by legal practitioners within the courtroom context. 3 Nor does lawgenerate the 'truth' of the event according to internal legal principles, such as,'neutrality','objectivity'and 'equality'. Rather, both the law and the facts of any particular event are the effects of linguisticconventions and pre-determined meanings. As Higgins writes, 'institutional discourses are nevertotally self-contained or self-referential. They always contain other broader social meanings andinter-relationships with other discursive formations in the hierarchy'. 4 In this article, therefore, lawwill be read and described as a system of images which provide historically and culturally preparedspaces demanding our allegiance to the values of law.5 Law's power resides in the fact that itprivileges some images over others and in so doing controls the meaning of our lives and our deaths.

• Danielle Tyson is a PhD candidate at the Department of Criminology, University of Melbourne,Victoria,Austraaa. Thanksto Peter Rush for his comments and suggestions on numerous drafts of this paper and ongoing encouragment and supportfor the research project. A number of commentators have also provided invaluable suggestions for revision; thanks to AlisonYoung, Les Moran and Helen Brown.Toni Morrison quoted injudith Butler, Excitable Speech:A Politics qfthe Pcrformative, London: Roudedge, 1997, 7 (emphasisin original).

2 Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric and LegalAnalysis, London: MacMillan Press, 1987, 1-3.3 Peter Brooks and Paul Gewirtz (eds), Law's Stories:The Law as Narrative and Rhetoric, New Haven:Yale University Press, 1996;

'Symposium: Legal Storytelling' (1989) Michigan Law Review. For some recent examples in the Australian legal context, seeRegina Graycar,'Telling Tales: Legal Stories AboutViolence Against Women' (1996) 8(2) Cardozo Studies in Law and Literature297;Jenny Morgan,'Provocation Law and Facts: Dead WomenTell NoTales,Tales AreToldAboutThem' (1997) 21 MelbourneUniversity Law Review 237.

4 Christine Higgins, 'Legal Language as Discursive Formation' in Clare O'FarreU (ed), Foucault: The Legacy, Kelvin Grove:Queensland University ofTechnology Press, 1997, 363. See also Goodrich, above n2, 132-57.Peter Goodrich writes that we live and die for our masks: 'Life is invisible, it escapes the image, it is other in the sense thatit cannot be presented but only represented through likeness to an absent form'. Peter Goodrich, Languages qf Law: FromLogics of Menory to Nomadic Masks, London: Weidenfeld and Nicolson, 1990, 301.

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If nothing else life and death are the object of the criminal law of provocation and its images.

The case studies for this article are appellate judgments and trial transcripts of some Australian cases

where an accused charged with murder admits killing and raises the defence of provocation. Thedefence of provocation provides an accused with a partial excuse for the crime with which they arecharged. Unlike self-defence which results in an acquittal, a successful defence of provcation reducesone's culpability to that of manslaughter. The elements that must be satisfied for a successful defenceof provcation are several. An accused and his lawyer must allege that the deceased uttered words and/or acted in a way that caused the accused to experience a sudden and temporary loss of self-control.The accused and the defence lawyer must also argue that the accused killed the deceased whileexperiencing that loss of self-control. Overiding both of these legal requirements is the furtherdemand that the accused must be said to have acted as an ordinary hypothetical person would haveacted. What runs through each of these elements of the formal legal definition is what the deceasedsaid or did. In the cases, I will be examining how the deceased is figured as insulting. My interest isin legal and cultural constructions of insulting speech: in the criminal law of provocation how is theconduct of the deceased transformed in and by a legal narrative of insult?6 In summary terms, thenarrative is:'woman communicates with man, man feels insulted, man kills woman, man feels justifiedin killing woman, law says man excused'. As will become clear, this narrative is marked by imperativesof gender - not only in relation to the subjects and to the objects of the narrative but also to thenarrative itself. In short, the narrative of insult is a narrative of a woman 'asking for it'.

1. A NARRATIVE OF INSULT

To set the scene, consider the filmJackie Brown.7 During a verbal exchange between two characters,a man, Louis, shoots and kills a woman, Melanie. The two of them are to deliver the proceeds froma cash heist to a third character, Ordell. Ordell is Louis' old time criminal associate and Melanie'sboyfriend. The scene begins inside a department store outside a ladies' changing room where thecash is to have been left for them to collect by a fourth party. Melanie and Louis hover nervouslyoutside the ladies' changing room. Feeling impatient, Melanie decides to take charge of the situationby marching into the changing room cubicle to get the cash herself. When she comes out, to thesurprise of Louis, she greets him with a look of defiance and triumph and walks off. Feeling

I am using narrative in the way that Wallace Martin explains:

We know that a plot is formed from a combination of temporal succession and causality. As E. M. Forster put it,'The king dies and then the queen died' is a story. 'The king died, and then the queen died of grief' is a plot.

Narrative sets tip a relation of causality by the connective, and dien, to link two or more propositional statements in a lineartemporal sequence. This enables a series of otherwise unrelated events to be apprehended as if'this" caused 'that' and so on.Wallace Martin, Recent Titores ofVarrativc, Ithaca: Cornell University Press, 1986, 81.Directed by Quentin Tarantino, 1998. See also the screenplay, published as: Quentin TarantinoJackie Brown, London: Faber &Faber, 1998.

THE AUSTRALIAN FEMINIST LAW JOURNAL 1999 VOLUME 13

discombobulated, he scampers off after her as she marches toward the emergency exit. Once outsidein the car park we witness Louis grab the bag from Melanie, his position of authority and leadershipregained, only to be foiled a second time when we get the impression that he has misplaced somethingvital. It suddenly dawns on Melanie that Louis cannot remember where he parked the car. Shelaughs at his incompetence and begins to taunt him about it. At first, Louis doesn't respond. Noticingthat she has rattled him, she says to Louis:

Jesus, but if you two aren't the biggest fuck-ups I've ever seen in my life [pauses andshakes her head]. How did you ever rob a bank? When you robbed banks, did you haveto look for your car then, too? No wonder you went to jail ... What a loser.,

Louis doesn't respond and changes direction, cutting down another aisle looking for the car. Shekeeps on at him,'Is it this aisle, Lou-is ... or is it the next one over?' Suddenly, Louis spins around toface Melanie and points his finger at her,'Don't say anything else, okay? I'm telling you, keep yourmouth shut' Melanie pauses and opens her mouth as if to speak. Shaking his finger at her Louiswarns,'I mean it. Don't say one fuckin' word.' Silent for only a brief moment Melanie starts up againchanting in a sing-song voice,'Okay, Louis ... Lou-is? ... Lou-is ...?' Suddenly, he spins around asecond time. The viewer looks over his shoulder and along the length of his outstretched arm whichis pointing directly at Melanie. He holds a gun. He shoots her - at close range. The camera remainsfocused on Louis. Melanie is out of the picture. He steps forward and shoots downwards at anunseen body lying prostrate on the ground.

This is one of the most violent scenes in the film.9 We never see Melanie again; there is nodirect image of her corpse. All that remains is the posthumous conversation about her between Louisand Ordell. They are seated together in the getaway van. In an off-hand sort of way, during theirconversation, Louis confesses to Ordell that he had to shoot Melanie. In a manner, reminiscent of apolice interview, Ordell demands to know why Louis didn't simply talk to her. He goes on to suggestto Louis that if talking to her didn't work, surely he could have just hit her. As if a physical assaultmight have been a more reasonable mode of correction than murder. Then he asks Louis if he is sure sheis dead,'.., we don't want that bitch surviving on us. Anybody but that woman'. Ordell shrugs it off.

The deployment of narrative is a retrospective way of giving meaning to an event by referenceto an earlier event or series of events in time. It allows members of a culture to apprehend thesignificance of that event under a common storyline. Firstly, the narrative of insult erases the materialbody and puts in its place a subject of insult. Melanie's performance becomes the cause of Louis'

I note that the film has already set up Louis' incompetence independently of Melanie's opinion: see TarantinoJackie Brown(screenplay), ibid, 4.

9 The other violent scene is when Ordell shoots another ex-crim associate, Beaumont Livingston, after Beaumont was questionedby Federal police over a job he did three years earlier for Ordell. Ordell cons Beaumont into the trunk of Ordell's car, underthe guise of doing another job for him, and shoots him. During the exchange between two black men, Ordell repeatedlyrefers to Beaumont as a 'nigger'.

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actions. In this way, the insult becomes the space of culpability. What is pertinent about the insult isthat it is not the material body that matters but the re-inscription of Melanie's subjectivity in thediscourse of others (Louis and Ordell, audience, Tarantino). In short, she asked for it. Secondly, thenarrative of insult provides a structure of identification. The audience forms an allegiance with thecharacter of Louis as the subject of violence. Despite any empathy the audience might feel forMelanie, she nonetheless remains the subject of insult (she asked for it) and the object on whichviolence is justifiably enacted. Thirdly, not only does the film set up an instance of the insult narrativebut it illustrates a key trope of that narrative, namely, the trope of'she asked for it'. It is by way of thistrope that allegiances are formed and culpability is attached. It also shores up an all-too-familiarcultural commonplace: the convention that, when a woman responds to the performance of men, sheis not so much speaking back but asking for it and hence deserving of what she gets.' 0 It is for thisreason that although the killing of Melanie was sudden, it was not altogether unexpected.

The narrative of insult and its key trope is not only a feature of contemporary popular film butalso preoccupies, informs and shapes legal understandings of gendered violence. In trial transcriptsand appellate judgments, a common storyline about woman's speech as insulting is used by an accusedto claim that he was provoked by the deceased's words, thereby displacing culpability for the killingonto the object of violence. The narrative of insult that we find in the discourse of culture can alsobe found in the discourse of law. In the discussion that follows, I trace some of the history ofassociation between women's speech and the performance of insult. The key figure of insult is thescold, the literary figure of the shrew. In the third part of the paper, I critically reflect on threecontemporary cases drawn from the doctrine of provocation to show how the narrative is marked byimperatives of gender. In cases where men are accused of killing a woman whom they allege haveinsulted them, the image of a woman's unruly member (mouth and tongue) constitutes her as asubject of insult. In this way, culpability is displaced onto the deceased. His desire to kill and act ofkilling is reinscribed as caused by the deceased's performance. In the indissoluble relation betweenthe physical and the linguistic, between body and language, act and discourse, the body is the blindspotof speech, that which acts in excess of what is said, but which also acts in and through what is said."

2. THE UNRULY ORIFICE

Our fascination with the speaking mouth derives from its constitution as a borderbetween the inner self and the outer other.12

As AlisonYoung writes, a 'commonplace" works via the linguistic process ofimetaphor in which the habitual connotation ofone thing with or for another becomes, by convention and repetition, part of everyday knowledge and expectationjust partof the plot. AlisonYoung, Femininity iii Disset, London: Routledge, 1990, 4, 103.Shoshana Felnan discussed in Butler, Excitable Spceech, above nl, 10-11.

12 AlisonYoung,'TheWaste Land ofthe Law, The Wordless Song of the RapeVictim' (1998) 22 Mclbourne University Law Review,

442,454.


The proliferation of texts aimed at governing an unruly, undisciplined or disorderly tongue and, byway of analogy, the speech that flowed from it, was at its peak between the sixteenth and nineteenthcenturies. In what could be called an obsessive cultural anxiety and fixation with oral and verbaltransgressions, the mouth was imagined as a potentially unruly orifice. A perceived lack of disciplineof the tongue, mouth and speech was a key way of attributing culpability for all sort of socialtransgressions. Sixteenth century philosophical writings warned of talkativeness and garrulity associal diseases and just as potentially destructive as the venereal disease syphilis. 13 In numerousproverbs the tongue was metaphorised as a key, capable of unlocking or locking the teeth (or door) tosound, words or song,14 as a sword that can quite literally inflict death.' 5 In religious pamphlets, it wasalleged that garrulity could quite literally subvert morality and truth. In these texts, the potential forthe tongue to contaminate, incite sinfulness and blasphemy, we find warnings for those who eitherspoke foul words or for those who were construed as vulnerable to, or at risk of, the disease or ill-effects an unruly utterance could wreak.'16

A number of writers have described and examined several re-emerging key tropes and themesthat organise this literature. For example, the metaphor of the tongue (as speech) pointed to apreoccupation with voicelessness, censorship and/or fear of castration (quite literally cutting thetongue out of the mouth) and of death (be it social and/or physical). 17 In Paster's examination ofseveral city comedies of the time she links injunctions against breastfeeding, menstruating, urinatingand defecating in public with imperatives of sexual difference.' 8 Educational treatises and etiquettemanuals were as much about social manners and class status as they were about 'natural' bodilyfunctions. The question of outward bodily control, including anxieties about fertility and potency,culminated in numerous dramatic parodies that featured a leaky bladder, flatulence and gossiping.Drawing on psychoanalysis, Paster explains that comedy was a key way to express a collective anxietyabout what these 'slips' of the body might reveal about the nature of the self, including the subject ofthe unfortunate 'slip' and the object to whom it might have been intended or become attached (inthese cases the audience). 19 The ritualised cultural preoccupation with a leaky bladder can also belinked to an anxiety about another orifice: an undisciplined or unruly mouth and tongue. The

13 See William A. Beardslee,'Degarrulitate' (Concerning Talktativeness), in Hans Dieter Betz (ed) Plutarch's Ethical Writings and

Early Christian Literature, Leiden: E.J. Brill, 1978; Desiderus Erasmus, 'Dc duplici copia verborutu ac reruni cotirnentarii duo', (OnCopiousness or the Copia ofWords andThings, 1512), translated by Betty Knott in CraigThompson (ed) The Collected Worksof Erasmus, Toronto: University of Toronto Press, 1978, 24; Plutarch, The Governaunce of Good Helthe, New York: Da CapoPress, 1968 (originally published 1530); Plutarch, 'De garrulitate' (On Talkativeness or Abundance of Speech) in Plutarch'sMoralia VI. See also commentaries by Patricia Parker,'On the Tongue: Cross Gendering, Effeminacy, and the Art of Words'(1989) 23 Style 445; Margaret Mann Phillips, 'Erasmus on the Tongue' (1981) 1 Erasmus of Rotterdam Society Yearbook 113.

14 R. Drew Griffith,'A Homeric Metaphor Cluster describingTeeth,Tongue, andWords' (1995) 116 Arnericanjournal of Philology 1.1h Paul Sheneman,'The Tongue as a Sword: Psalms 56 and 63 and the Pardoner' (1993) 24(4) The Chaucer Revieu 396.11 John Webster Spargo,Juridical Folklore in England Illustrated by the Cucking-Stool, Durham: Duke University Press, 1944, 110.17 Patricia K.Joplin,'The Voice of the Shuttle is Ours' (1984) 1 Stanford Literature Revieu, 25; Richard C. McCoy,'Gascoigoe's

"Poemata castrata":The Wages of Courtly Success' (1985) 27 Criticistn 29; Dolores O'Hggins,'Sappho's SplinteredTongue:Silence in Sappho 31 and Catullus 51' (1990) 111 ArnericanJournal of Philology 157; Sheneman, TheTongue as Sword, above n15.

18 Gail Kern Paster,'LeakyVessels:The Incontinent Women of City Comedy' (1987) 18 Renaissance Drania 43-65, 44-45.i Abid, 44.

'ASKING FOR IT'

discursive formation of a woman's orifices as signalling a lack of control constituted all women as

potential subjects of insult in need of discipline and containment. A woman whose bladder leaked

involuntarily invoked condemnation of her as irrational, unreliable and sexually incontinent:

Uncertainty in the lower parts bespeaks unreliability in the constructed woman; over

production at one orifice bespeaks overproduction at the rest... 'A likerish tongue a

likerish tail,' says the proverb ... 20

In Boose's feminist and legal historical account of gendered forms of punishment, she links the

sixteenth and seventeenth century literal practice of bridling scolds, putting a woman's head in a

scold's bridle, to the literary figure of the shrew in Shakespeare's play The Taming of the Shrew. 21 A

scold's bridle is a metal frame that had a spiked wheel or tab to pin down the tongue in the mouth. In

her account of the increase in gendered punishments of the time (for scolding, witchcraft, whoring

and so on) she traces the discursive content of its key referent: the scold's bridle. As a public shaming

device, the literal practice of bridling scolds was a way to attribute culpability for a whole range of

sexual and social transgressions. 22 Historically and culturally, the actual physical and painful restraint

of the tongue in the mouth (and a range of other ritualised and gendered practices of punishment

such as the pillory, the cucking or ducking stool and'world upside-down' rites23 ) not only represented

the symbolic containment of a perceived unlawful appropriation of phallic (male) authority by women,

it indelibly marked a woman's mouth and tongue as unruly, as symbolic of male castration, a site of

potential disorder. As Boose notes:

If the chastity belt was an earlier design to prevent entrance into one aperture of the

deceitfully open female body, the scold's bridle, preventing exit from another, might be

imagined as a derivative inversion of that same obsession ... The tongue (at least in the

governing assumptions about order) should always already have been possessed by the

male.24

20 Ibid, 51. It is also interesting that a contemporary reference to public shaming as a modern and preferred means of punishment

appeared in an article in a recent edition of the magazine, Marie Claire. In 'Shamed in Public:Women Forced to Parade TheirGuilt' 117 (May) Marie Claire 46, Brian Dear reports on 'shaming' sentences being handed down by some judges in theUnited States for violent and non-violent offences such as theft, prostitution, embezzlement, drunk driving, wife-beating,child molestation and urinating in public. The article also makes an historical link to the common practice of publicshaming in North America and Britain during the eighteenth century when the pillorying and the ducking of scolds in thelocal pond were the preferred modes of correcting a perceived imbalance in the gendered social order. The reintroductionof the practice of shaming is allegedly intended as a solution to overcrowding in prisons: 'a shaming penalty provides avisible-if not visceral--deterrent to crime' (at 48). One judge was quoted, 'People need to feel bad ... People need to feelguilty about what they did. Then they'll change their conduct' (at 48).

21 Lynda E. Boose, 'Scolding Brides and.Bridling Scolds: Taming the Woman's Unruly Member', (1991) 42(2) ShakespeareQuarterly 179.

22 Ibid.

23 See Natalie Zemon Davis, Society and Culture in Early Modern France, Stanford: Stanford University Press, 1975, 124.24 Boose, Bridling Scolds, above n21, 204.


Within a political and gendered economy of sexual difference, the mouth and tongue was marked asa sexed body part, a literal and figurative site of culpability through which to contain the speech andopinions of predominantly working-class women (and some men).25

In John Webster Spargo's etymological study of British antiquarian societies and practices of

punishment, he traces the word 'scold' to its Latin derivative, rixa, meaning incitement to riot.26 Rixaalso emerges in a poem by Chaucer titled tria dam nata, meaning the three damned things in the house:

a leaking roof, a smoking chimney and a railing wife.27 The poem makes a reference to a 'wrath-laden' woman capable of provoking strife, one predisposed to an 'overweening desire for strife even toblows'. Within this narrative woman is figured as the subject of insult and inviting violence. Themeaning of her body is signified by reference to her orifice, her mouth. If, as de Lauretis notes,representations of gender are social positions which carry different meanings, and to represent oneselfas male or female implies the assumption of the whole of these meanings, then it makes sense to askwhat is the process of their construction. 28 Gendered subject positions can be seen to be constituted

by two key linguistic processes: metaphor and metonymy. While metaphor depends on the constructionof similarity and semantic resemblances between terms horizontally, thereby displacing dissimilarityand eliding difference, metonymy works syntagnatically by the substitution of the part of one thingby the whole of another. 29 In representations of woman's speech as insulting, we can also see asignifying chain of associated meaning that has gained cultural, political and social currency: a woman

who leaves her house is a woman who drinks is a woman who talks is a woman who leaks. 3" Thepart, the mouth and tongue, stands in for the whole, the meaning of the category 'woman'. Thecategory 'woman' is signified in and by reference to her body-parts, her orifices. She is a vessel filledwith holes which have a propensity to leak unexpectedly and which constitutes her character asuncontainable, vociferous, sexually voracious, contaminating and emasculating. In short, she becomessubjected to and by reference to the gendered trope of woman as 'asking for it'. It is in this way thatlaw can attribute culpability to a female deceased even though she was the object or victim ofviolence.

The narrative of insult is not confined to the domain of provocation but also works in areas oflaw where the 'complainant' is a centralised figure of the doctrinal drama. For example, in Puren'sanalysis of female complainants of sexual assault, she shows how a trope of resistance acts as a lexical

25 See David Underdown,'The Taming of the Scold: The Enforcement of Patriarchal Authority in Early Modern England' in

Anthony Fletcher and John Stevenson (eds), Order and Disorder in Early Modern England, Cambridge: Cambridge UniversityPress, 1985, 116.

26 Spargo,Juridical Folklore, above n16, 109-110.27 Ibid.28 Teresa de Lauretis explains that the sex-gender system is both a social and cultural construct, a semiotic apparatus which

assigns meaning (identity, value, prestige, location in kinship, status in social hierarchy, and so on) to individuals within aculture. In short,'gender is both the product and the process of its representation': Teresa de Lauretis, Technologies of Gender: Essays onTheory, Filtn, and Fiction, Bloomington and Indianapolis: Indiana University Press, 1987, 5 (emphasis in original).

29 Young, Fenininity in Dissent, above nl0, 89.30 Paster, Laky Vessels, above n18, 51.

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slippage between the discourse of romance and the discourse of rape, constituting the rapist as asubject of violence and the victim as an object of fear. 31 InYoung's analysis of the use made in rapetrials of evidence about the consumption of alcohol and what the victim was wearing, she shows howa narrative of consent reinscribes a female victim's lack of consent as a desire for sex. 32 What theiranalyses show is how discursive devices inform legal understandings of the performance of the victimas if she asked for it. In short, the common storyline that keeps getting retold is:'man desires woman,man rapes woman, woman complains to law, both the accused and law imagine woman as asking forit, law blames woman, law excuses man.'

In contemporary legal cases repeated use of the metaphor of the 'biting' tongue or 'stinging'words is deployed to associate a woman's response to a man as insulting. In the case of R v Minehan,33

Minehan was charged and convicted of murder for strangling his wife. His appeal related to the,defence of provocation, alleging that wife had used words in a 'very biting tone':

She followed on in a very acerbic and mordant tongue, saying I was a no-hoper, a louse, agood for nothing son-of-a-bitch. That we had wasted a whole three good years of her life.34

According to his version of events, he became angry and upset, he felt he could not take it anymore,,as she was dishing it out pretty heavy'. 35 When he tried to kiss her, presumably in an attempt tocajole her to change her mind or behaviour, she (his wife) 'bit' him on his bottom lip. The appealcourt ruled that the biting of the lip could be included as evidence of provocation for the jury and anew trial was ordered. It would appear that the 'bite' came to ercapsulate what was insulting abouther behaviour because it contradicted the accused's attempt to 'kiss' her. To bite is to use the teeth,instead of the lips. When teeth are clenched shut they form the image of a gate or barrier, a rejectionof something or someone wanting access, a locking together to shut something or someone out. Inher refusal to be orally penetrated, he experienced a kind of oral impotence or castration. It isinteresting that it was he who wanted to use his mouth and tongue. Yet she was constituted as thesubject of insult for having physically demonstrated her refusal of his desire. The common understandingthat a woman uses her mouth and words not only to complain but also to wound permeates bothculture and law.3'

31 Nina Puren, 'Hymeneal Acts: Interrogating the Hegemony of Rape and Romance' (1995) 5 The Australian Feminist Law

Journal 15-27, 15.32 Young, The Wordless Song of the Rape Victim, above n12, 451..3 [1973] 1WLR 659.34 Ibid.35 Ibid.36 For a wonderful qualitative and quantitative study of woman's tongue and speech as a cipher for political and social unrest,

see Jane Kamensky, Governing the Tongue:The Politics of Speech in Early New England, NewYork: Oxford University Press, 1997.See also my earlier work in this area, The Construction of the Unruly Female Speaking Body in Legal Discourse, unpublishedHonours thesis, La Trobe University, 1996.


The doctrine of provocation applies to all Australian States andTerritories. 37 If all the elementsof the defence can be satisfied, it reduces a charge of murder to that of manslaughter. A successful pleaof provocation means that an accused has admitted the requisite intent for murder but had a partialexcuse for killing. Briefly, I will restate the elements of the defence.-8 An accused must allege that thedeceased uttered words and/or acted in a way that caused the accused to experience a sudden andtemporary loss of self-control. The accused must claim to have killed the deceased while under theloss of self-control. Overriding both of. these legal requirements is ihe further demand that anordinary hypothetical person (with the same personal and cultural characteristics and in the samesituation as the accused) would have lost their self-control to the extent that the accused did. Andfinally, that an ordinary hypothetical person (without the personal and cultural traits of the accused,but of a similar age as the accused) would have killed in response to the words and conduct of thedeceased, as the accused did. What runs through each of the elements of the defence is the accused'sallegation as to what deceased said and/or did.

The classic paradigm of provocation defined by the English common law - a sudden sightingby a husband of his wife in adultery with another man - was based on a physical sighting or on actualconduct.39 A killing under these circumstances had as its primary agent, a subject of violence whocould then claim in law that he had suffered a loss of self-control and killed his wife and/or her loverbecause of what he saw and felt. Once the scope of the defence extended to include killing a wifeafter a sudden confession - words describing past behaviour - of adultery, or for 'nagging'- words ofabuse - words came to stand in for conduct. 40 In short, the attachment of the accused's story to anarrative of insult enables a causal link between her performance and the event of murder to beestablished. It also says something about who the deceased is, a woman who 'asks for it' (being killed),and the legal narrative provides an accused with a partial excuse for doing so.

To focus on the reinscription of a deceased's performance, one that is marked by a narrative ofinsult, returns the analysis to that of language and questions of interpellation more generally. In arange of other legal contexts law has been instrumental in indeed vital to - the plea to legislateagainst harm suffered as a result of words. 41 To analyse the maxim that 'words wound' is all the morecompelling if one considers the paradoxical relationship between law and language. Law claims aspace in opposition to violence while simultaneously participating in a rhetoric of violence: violenceis engendered in representation. 42

37 For a general summary see Peter Rush, Criminal Law, Melbourne: Butterworths, 1997, 324.311 I am paraphrasing Rush, ibid, 331.39 R v Maddy [16711 86 ER 108; R v Mawgridge [17071 84 ER 1107; R v Rothwell [18711 12 Cox CC 145. See also William

Blackstone, Commentaries on the Laws of England, Volume IV: The Law of Public Wrongs (1723-1780), Boston: Beacon Press,1962,214. For a general discussion of the narrative of adultery, Graeme Coss,"'God is a Righteous Judge, Strong and Patient:and God is Provoked Every Day'. A Brief History of the Doctrine of Provocation in England' (1991) 13 Sydney Law Review570; for a discussion of the reception of a narrative of adultery in the criminal law of the Umted States and Canada, seeJeffrey Miller,'Before His Passion Had Time to Cool:The "Unwritten Law of Adulterous Provocation" and Urban Legend'(1995) 10(2) Canadian Journal of Law and Society 99.

4 R v Birchall [1913] 23 Cox CC 379; R v Rothwcll [1871] 12 Cox CC 145; Voukelatos v R [1990]VR 1. For a discussion of'nagging' cases, see Sue Bandalli, 'Provocation -A Cautionary Note' (1995) 22(3)Journal qf Law and Society 298, at note 19;

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3. A LEGAL NARRATIVE OF INSULT

The necessity to resort to metaphor in expounding the law on this subject is disconcerting.References to supposed raising or lowering of blood temperature, reason becomingunseated, and passion mastering understanding, seem calculated to confound, ratherthan assist analytical processes. However, our understanding of consciousness and mentalprocesses, as compared to our understanding of more readily observable physicalphenomena, is so limited that metaphor seems generally to be regarded as essential inthe expression of ideas which guide us in this area of discourse. 43

My focus in this article is not so much on the law reform debate that surrounds the defence ofprovocation. 44 Rather, I am interested in reading in the discourse of law and culture, what tracesremain of the deceased's body, how it is re-inscribed in and through a legal narrative of insult. In thissection I examine three contemporary Australian cases. First, I revisit the High Court's decision inMoffa. 45 Moffa's conviction for murder was substituted by one of manslaugher after he and hisdefence lawyer successfully deployed the narrative to establish that what caused him to kill his wifewas what she said and did. The High Court accepted his narrative - her calling him a 'black bastard',that she had been 'sleeping with all the men in the street', and her throwing a telephone and somephotographs of herself at him - as falling within the scope of provocation by words. This authoritativedecision inaugurated the contemporary form of the narrative of insult and its key gendered trope,'sheasked for it'.

In the second case, Gardner v R, 4 6 Gardner killed his estranged wife, Marino, in her home inthe middle of the night and her male friend, Shears, who was asleep in another room. Gardnerclaimed that her words not only caused him to kill her but also to kill Shears, even though Shearsoffered no provocation. At trial, Gardner was convicted of manslaughter on the grounds ofprovocation

Russell Dobash, Rebecca Emerson Dobash and Sue Gutteridge, The niprisonnient of Women, Oxford: Blackwell, 1986, 19;Deborah Cameron and Elizabeth Frazer, Tile Lust to Kill:A Feminist Investigation of Sexual Murder, Cambridge: Polity Press, 1987.

41 Butler, Excitable Speech, above nl; Lawrence MacNamara, 'Long Stories, Big Pictures: Racial Slurs, Legal Solutions and

Playing the Game' (1998) 10 The Australian Feninist Lu Journal 85; Mari J. Matsuda, Charles R. Lawrence III, RichardDelgado, and Kimberley Williams Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and tile First Anmendnient,Boulder:Westview Press, 1993.

42 de Lauretis, The Violence of Rhetoric, above n28; see also Robert Cover,'Violence and the Word' (1986) 95 Yale Law Journal,1601, 1608; Les Moran,'Violence and the Law:The Case of Sado-Masochism' (1995) 4 Social & Legal Studies 225.

43 R v ChIhay (1994) 72 A Crim R 1 at 9.14 For a general summary of this debate, see Model Criminal Code Officers Committee of the Standing Committee of

Attorneys-General, Discussion Paper, Chapter 5, Fatal Offences Against the Person, Canberra: The Committee, 1998. See alsosubmissions made to the Committee: Helen Brown,'Provocation as a Defence to Murder:To Abolish or Reform?' (1999) 12The Australian Fentinist Lau Journal 137; Adrian Howe, 'Reforming Provocation (More or Less)' (1999) 12 The AustralianFeminist Lau;Journal 127.

15 138 CLR 601; 13 ALR 225.41 (1989) 42 A Crim R 279.


in relation to killing his wife and of murder in relation to Shears. He successfully appealed his murder

conviction in relation to the killing of Shears, it being substituted by a conviction for manslaughter.

Ruling that Marino's words of abuse had caused Gardner to kill both Marino and Shears, the Victorian

Court of Criminal Appeal relaxed the requirement that the provocation must be said and done by the

person who was killed, ruling that provocation could emanate from a third party. In the third case,

R v Q,47 involving a male accused of killing his girlfriend, the jury returned a verdict of manslaughter

on the grounds of provocation after the accused alleged that she uttered words of abuse and threw

things at him causing him to kill her. In my examination of these cases, law will be read as a system

of pre-determined spaces and allegiances through which a subject's performance is interpreted and

their subjectivity constituted. 48 I will show how in the accused's deployment of a legal narrative of

insult, the object of violence, the deceased, is discursively positioned as the subject of insult, and the

one to whom culpability is attributed.

3.1 LAw'S MASKS

Moffa was convicted of murder for killing his wife. He claimed that after he had returned from a

month's holiday in Italy, her feelings for him had changed. For more than a month, his wife had

refused to have sex with him, due to poor health, and she frequently told him she no longer loved

him. On the night before he killed her, he said he repeatedly pleaded with her not to leave him. The

next morning he repeated his pleas for her to stay with him. According to him, she said several times

that she no longer loved him. At one point, he tried to caress her. He claimed her response to him

was that he was not to come near her or she would'scratch [his] eyes out'. 49 According to his version,

she then said she had been 'enjoying' herself and 'screwing with everybody on the street', called hima 'fucking bastard', and then threw some photographs of herself naked (some of which had been

taken by him) for him to look at. He claimed he began to feel mad and when he began to cry, she

laughed at him using the words, "get out you black bastard' which were followed by her throwing a

telephone at him. He left the room, obtained a lead pipe from outside the house, returned to the

bedroom and said to her, 'Is this what you want? You force me to do it' According to him, her

response was, 'I'm not scared of you, you fucking bastard'. He then beat her to death. The High

Court accepted his version of the killing as not only raising the issue of provocation, but constituting

sufficient provocation to reduce his conviction to manslaughter.-"'

47 R v Q, 18-28 November 1996 (unreported, Supreme Court ofVictoria, O'BryanJ).48 I am here drawing frona Goodrich, Languagcs of Law, above n5,179.4' (1977) 13 ALR 225 per GippsJ at 235.'o See also The Queci v Webb, [1977] 16 SASR 309, where the imale accused clained he had been provoked by the female

deceased's words - she threatened to screan rape unless he paid her money for sex. He choked her to death. At trial, he wasconvicted of murder. On appeal, her words, while not considered abusive, constituted sufficient provocation to reduce theaccused's conviction to manslaughter.

'ASKING FOR IT'

What interests me about the High Courtjudgment is how the conduct of the female deceased

was transformed in and by.a legal narrative of insult. As Morgan's re-reading of the facts in this case

has illustrated, their adjectival descriptions of her performance enabled them to form the view that

there was no need to re-examine the precise effect of the female deceased's words on the accused.5'

Having endorsed Moffa's story, they even added some embellishments of their own. In the discourse

of the judges there were repeated proscriptions of the female deceased's conduct as 'vituperative' and'scornful', her words as 'contemptuously expressed' and a 'contemptuous denial of any continuing

affection' towards the accused/appellant.5 2 In contrast, Moffa was revered for making continual

'connubial advances' toward the deceased, which she ignored. 3 Consider Stephen J's judgment:

She told him in the coarsest, and no doubt the most provocative of language that she

had been having intercourse'with everyone in the street'... only the reference to colour

possibly having a sting when spoken by this Australian wife to her Italian husband.

The deceased in this case, the jury might believe, did not simply admit to an adulterous

relationship, she boasted of wholesale promiscuity... 54

The adjectival disavowal of her in and by the majority judgment is significant. It is her words that are

reinscribed with adjectives such as 'sting' and 'scorn' by the judges. The law reasons primarily to

persuade. The belief 'that the facts of the present case can be decided according to previous patternsof resolution to similar cases' is 'always a question of selection [or] choice' as to 'which similarities andwhich differences are significant to the particular situation' ' The analogy provides and delimits thelanguage to be used for the present case. Not only are 'similar facts' from an earlier case used tounderstand the present situation, but so are a range of linguistic devices, such as metaphor and thedeployment of tropes. Consider Gleeson CJ's comments on the role of metaphor in the epigraph tothis section of the article. AsYoung explains,'metaphor can dictate the organisation of whole generaldiscourses', with potential deleterious consequences and ideological effects9 ' The language of'sting'and 'scorn' is reminiscent of the historical literature that attributed a woman's mouth and tonguewith the potential for, and inviting, violence.

A final point concerns the court's use of the language of contempt ('contemptuously expressed'and so on). The doctrine of contempt and contempt in the face of the co'urt is the official narrativeof insult a magistrate or judge deploys to convey when the adjudicating tribunal feels insulted. Itawards a court power to inflict sanctions in response to words of abuse, a person's laughter in court ora refusal to accept the authority of the court, and, as such, represents the authentic inscription or mark

of social place and office, the true image or face of law.9 7 What is at stake for law in the event of the

t Jenny Morgan,'Provocation Law and Facts' above n3, 244.i2 (1977) 13 ALP, 225 per Barwick J at 226 32.i3 Ibid, 227.i4 lbid, 237-38.' Peter Goodrich, Rcadingq the Lau':A Critical Introduction to Lgal Method and Techniques, Oxford: Basil Blackwell, 1986,168,197.5 Young, Femininity in Dissent, above nl0, 96.,7 Goodrich, Languacs of Law, above n5, 291.


insult concerns the question of law's masks, or enunciative modalities - places from where law speaksand derives its 'legitimate source','point of application' and authority. 8 The common law doctrineof contempt in the face of the court concerns the very sovereignty of the court's jurisdiction, theright and authority to speak in its name, an authority that nonetheless derives from an elsewhere; themouth or law of the father or the word of God or the Monarch. -9 Just as the Monarch compelledallegiance from and dominion over subjects, so do those invested with the power to speak in thename of the law (legal practitioners). It is to impugn injustice to the very image ofjustice. But thefunction of law is also to signify the subject to itself, it is to map the subject in its own relations, notin relation to a specific *reality', but in inter-subjective relations with the 'other' as well as to the law.611

If legal or the court's subjectivity can be read as an effect of prior discursive formations, then powerresides in its representational practices.

In the event of murder by provocation, the insult is imagined as having threatened an accused'ssense of self, such that he experiences a loss of self-control and claims to have killed while under thatloss of self-control. Likewise, in the event of contempt in the face of the court, the adjudicatingtribunal also suffers a loss of identity, autonomy and authority.,' The insult becomes the space ofculpability; the accused's position in provocation is assimilated with that of the court in contempt ofcourt. In this alliance to the value of law is an endorsement by law that he who feels insulted andretaliates with violence is a legitimate subject of violence. It is in this sense that I understand law asa juridical system of signs which get under the skin, which mark the emotional body of the subjectand its organs, its allegiances to the other and to law.62 It also illustrates the gendered relationships ofpower that compel allegiance to the values of law.

3.2 WOMEN'S WORDS, AND THE HANDS OF MEN

Gardner was convicted of manslaughter due to provocation after being charged with the murder ofhis estranged wife, Marino, and convicted of murder for killing her male friend, Shears. He appealedagainst the murder conviction on the grounds that the provocation offered by the female deceasedalso caused him to kill Shears, who offered no provocation and who was asleep in another room. Atthe time of the trial, the female deceased's body had not been found. 63 The Court of CriminalAppeal accepted the defence narrative, that her words of abuse and her words describing past conduct

18 Higgins, Legal Language, above n4, 362.

9 Goodrich, Languages of Law, above n5,191.6,' This is not so much an empirical question but a question of how the subject inhabits the social; how law maintains its self-

image, the social and mythic constructions ofits own body, its social role and actions, its own clothes. See Goodrich, ibid, 183;

see also David Caudill, Lacan and tie Subject of Law: Toward a Psychoanalytic Critical Legal Theory, New Jersey: Humanities Press,

1997, 25.61 See Rush, Criminal Law, above n37, for similar arguments in respect of provocation law, rape law and self-defence.

'62 Goodrich, Languages of Law, above n5,268.63 To this day I am unsure if her body has been found.

ASKING FOR IT'

(an allegation that Marino and Shears had been 'fucking all night') denigrated the accused's sexual

capacity, causing him to kill them both.' 4 There was evidence that the accused had informed a female

companion that he intended to kill Marino.65 A few nights before, while at a private function the

accused had produced a knife and threatened to cut Marino's throat and burn down the house. 66

Despite his resolve to do her violence, and his gaining entry in the early hours of the morning by

removing a wire screen from an open window, it was she who was positioned as 'asking for it'.

In Gardner's unsworn statement, he alleged that when he confronted Marino in her bedroom,

her response was,'... you gutless fucking wimp ... you cockless cunt ... you're a gutless coward ... leave

me alone ..'. According to him she yelled out to Shears, who was asleep in the other room, that the

accused was in the house, and then to the accused, that she and the male deceased had been 'fucking

all night'. He claimed that her words caused him to feel 'wild and angry', so he hit her with his hand.

He then left her bedroom and went in search of Shears. On the way he picked up a statue of anelephant, entered the room where Shears was sleeping and switched on the light. He saw the male

deceased in bed asleep. '[H]e [Shears] moved, I thought he was getting up and I was shittin' myself-I just couldn't control myself and hit - I hit [the male deceased] with the elephant'. According to thisaccount, having killed Shears, and still feeling insulted by Marino, he returned to Marino's bedroomand hit her again, presumably causing her death.6 7

It is well to remember that we only have the accused's version as to what she did or did not sayand did or did not do on that night. The trial judge repeated the accused's account of what Marinosaid in his direction to the jury:

You have demonstrated the love-hate relationship of a man who hated and loved, andleft, but could not do without, a woman. And he [the Crown] says, that over those yearsof splitting and joining together, ... you have a deterioration of a man into a murderousstate. .4.. [O]n that... night, he learnt there was another man on the scene ... This manhad come between him and [the female deceased]. This man was exercising physicalstrength, and [the female deceased] was calling [the accused] a'cockless wimp'. And theCrown says in the end the contempt and scorn and the mocking of [the accused], by[the female deceased], drove him to murder her. .. 68

There was one witness, Marino's ex-husband, who corroborated the accused's allegations that Marinohad used these words to abuse the accused on the telephone in the days before the event, including thephrase 'cockless cunt'. 69 The ideological effect of these words and their relation to each other merits

64 (1989) 42 A Crim R 279 per O'BryanJ at 282.65 Ibid.66 Ibid.67 The weapon, most likely a baseball bat, has also never been found.68 Trial transcript, Supreme Court ofVictoria, February 1989, per Cummins J. at 90-91a (charge to jury).69 Ibid, examination and cross-examination ofWitness 'Q', 315-412.


consideration. Within the discourses of the courtroom, Marino's performance was reinscribed by alegal narrative of insult. Consider the phrase 'cockless cunt'. The positioning of'cockless' next to aderogatory term for female genitals is significant in two respects. Not only does she associate himwith the subject of'lack', a castrated woman, a cunt without a cock, she also impugns his masculinityby rendering him cockless. This is suggestive of linguistic castration, she says he has no penis and noguts. She says he is not a real' man.

The insult narrative also provides a structure of identification. Throughout examination andcross-examination of witnesses, we find the deployment of a number of adjectival descriptions thatare attached to the character of the female deceased. For example, words such as 'headstrong','bitter','obstinate', vindictive','abusive','manipulative','deceptive' In one witness's view, the female deceasedpossessed the ability to 'suck men in'.70 It is interesting that this same key witness testified that onnumerous occasions the female deceased refused to talk to the accused on the telephone.7' Inconstrast, the accused was described by a clinical psychologist as 'empathetic' toward others, 'warm','co-operative','passive','compliant', as a man who allowed himself to be pushed around by a woman.7 2

The narrative of insult has a linear temporal sequence. First, he is constituted as passive in response toa woman's words, and then, as active in response to Shears' potential threat. The image of a femaleantagonist who dished it out verbally enables him to be positioned as a battered man, a man batteredby a woman's words, and in danger of losing his masculinity.

This same narrative structure constitutes the male deceased as active. Although he was passiveat the time he was killed by the accused, he was figured as a 'man of action'7 3 by his hands. Duringcross-examination of one witness, defence counsel proposed that the male deceased, Shears, was 'aman who settled things with the fist, rather than the mouth'. 74 During a discussion between theprosecution and the judge regarding proposed jury directions on provocation, the Crown noted thatin the accused's unsworn statement he gave evidence about a conversation with Marino in which shehad said her relationship with Shears was one of friendship, that she had known him since school, thathe would do anything for her, that he was handy with his hands.75 In the appellate judgment, there

7o Ibid, 392.71 lbid, 302-316.

72 Transcript of Plea, Supreme Court ofVictoria, February 1989, 42.

73 Trial transcript, above n68, 410.74 The exerpt from the transcript is as follows:

Defence: Did he [the male deceased] have a reputation for being heavy handed?Witness T: Yes, to my knowledge that sometimes it was talked about.Defence: A reputation for a man who settled things with the fist, rather than the mouth?Witness T: Yes.

Defence: The reputation that in the event that there is a difficult situation, that he would punch someone, rather thantalking about it, that is what you mean, is it not?Witness T: That's settling with the fist, instead of talking, yeah.

bid, 586.l bid, 1222.

ASKING FOR IT'

was corroborative evidence that Marino was fearful for her safety and complained to police about her

fears after being threatened by the accused at the private function a few nights before she was killed. 76

At Marino's request, the male deceased had secured the front and rear doors of her home with locks

and agreed to stay with her to provide protection. 77 For a man to be described as 'handy with his

hands' implies handy around the house, an ability to carry out household repairs and maintenance.

The slippage between hand and fist denotes a different order of meaning. A man who clenches his

fist is a man who is prepared to fight. In contrast, women use words to complain and wound.

The preferred meaning for the court of the male deceased's character was as an antagonist.

The relevance lies in the fact that if he is constituted as a 'man of action' sufficient to raise provocation,this also raises the possibility of self-defence. 7 In relation to self-defence, the defence relied on theevidence given in the accused's unsworn statement that when he saw Shears, he 'was shittin" himself,and killed Shears to defend himself from potential violence. In relation to provocation, the defencein Gardner deployed the 'prototype provocation' that has always been 'where a man or woman comes

home and finds the spouse in bed with someone else in a compromising position, or what appears tobe'.79 The proximity of Shears to Marino's bedroom and her allegation that they had been 'fickingall night' was sufficient to merge the two together into an image of the typical adulterous context.The Court of Criminal Appeal ruled that this image created a sufficient 'nexus' between Marino'swords and the proximity of Shears in the second bedroom asleep. Marino's words implicated Shearsin an imagined 'sexual orgy'.8 1

The narrative of insult figured Shears as an innocent but potential subject of violence (handywith his fists). Moreover, he is the accused's sexual rival, an adulterer. He was figured as provocativeby association with the female deceased and what she said. While he was constituted as a virile man,the accused was cast as emasculated, a fallen hero lover (in his direction to the jury, the judge said hehad been in a love-hate relationship with Marino) and a coward. One could arguably rename thiscase, in Freudian terms, adultery of the tongue.," In the discourse of law the accused is legitimatelypositioned as needing to kill Shears to demonstrate and restore his masculinity.

76 (1989) 42 A Crim R 279 per O'BryanJ at 281.77 Ibid.78 See Parker [1964] AC 1369; (1964) 111 CLR 665. The defence in Gardner relied on the facts in Parker where the Privy

Council relaxed the requirement of suddenness, the lapse of time between the alleged trigger incident and how long the lossof self-control might continue to operate. The case involved two men, Kelly and Parker, and an argument between them,over Parker's wife. Kelly, the male deceased, and Parker's wife were having an affair. When the two men confronted eachother, Kelly was held to have provoked Parker when he jeered at his adversary's lesser strength (he threatened to take theaccused's wife with one hand and then beat the accused with the other). It was this image of Kelly as a virile sexual rival andas a 'man of action', that the defence in Gardner relied on to raise both the defence of provocation and self-defence in relationto Shears. In this narrative of insult Kelly and Shears are positioned as like-minded antagonists.

79 Trial transcript, above n68, at 1291.80 Gardner (1989) 42 A Crim R 279 per O'BryanJ at 284.81 Puren, Hyntencal Acts, above n31, 20, n20.


3.3 GAGGING WOMEN

In the final case under examination, R v Q, the male accused was charged with the murder of hisgirlfriend. In his statement to police, the accused alleged that they had an argument during whichshe threw an ashtray, a ceramic figure and a glass at him. The argument became physical on his partwhen he seized her by her arms and forced her to sit down on the floor. Having physically restrainedher, he went into the bedroom to retrieve a pair of handcuffs from under the bed which he used totie her hands behind her back, forcing her to lie face down on the floor. He couldn't remember if itwas then that he placed masking tape around her mouth while she was still alive to stop her cries. 82

He choked her to death. Once dead, he dumped her dead body in a rubbish bin outside the kitchenwindow. Then he drove her car to a shopping centre nearby and left it parked there unlocked. Hewent to a licenced bar located at the shopping centre and said to a friend,'I have done it'. A shortwhile later, he returned home to retrieve her body, removed her clothing, wrapped her in somecarpet underlay and, driving his car, dumped her body in a secluded area some miles away. Some timelater again, he returned to the site with some lime, dug a hole and covered her with dirt in the hopeof concealing it while it decomposed. At trial, the defence raised provocation. The jury at the firsttrial was discharged without a verdict. 83 At the second trial he was convicted of manslaughter on thegrounds of provocation and sentenced to 7 years imprisonment with a 5 year minimum.

Despite evidence that the accused had been violent towards the deceased in the past and thathe himself indulged in 'bad' language, 84 the female deceased's behaviour was re-inscribed by referenceto the gendered trope of 'she asked for it'. In his tape-recorded interview with the police, the accusedcomplained that she had repeatedly 'whinged', 'whined', called him 'a loser', 'a bum', 'a fuckingarsehole', told him to get off his high-horse and criticised him for not having enough money whenhe was having trouble gaining employment. In the evidence of the female deceased's family members,she was described as a woman who got angry or fed up with what she perceived to be an unbearablesituation, be it at work or in her relationship with the accused and who would express her angerverbally rather than physically.85 During defence cross-examination, one witness was asked if thefemale deceased had a 'bit of a temper' and if her 'moods' were what caused the accused to, onoccasion, become quiet and drink.86 Another witness was asked if the female deceased was the typeof person who 'failed to control her emotions' when 'she was discouraged by criticism'. 87 Theaccused admitted that he just wanted the female deceased to 'shut up' 88 In the trial judge's commentsduring sentencing, he said that:

82 In the judge's sentencing remarks I note that he concluded that the accused did place the tape around her mouth before he

choked her to death.3 They were unable to reach a unanimous verdict.

14 Trial transcript, Supreme Court ofVictoria, 18-28 November 1996, 10.15 Ibid, 82-7.86, Aid, 82.17 Ibid, 108.

88 In the accused's interview with the police he admitted that not only did he 'sometimes lose it' but that he 'just war]shut up and leave [him] alone'.

'ASKING FOR IT'

[The accused was] aware from past experience that [the female deceased] could scream

loudly and you set about gagging her to stop her from screaming... The killing was not

premeditated but occurred rather suddenly when you responded to provocative words

and acts at the end of a turbulent relationship. I am persuaded that you responded to

[the female deceased] in an uncharacteristic and inappropriate manner.19

Within the discursive frame of romance, murder is posited as the inevitable culmination of a 'love-

hate relationship'.9 1 In both the discourse of law and the discourse of culture, the narrative of insult

is indelibly marked by imperatives of gender and the values of law.

Having been made to occupy the space of the insult, empathy for the female deceased somewhat

diminishes in favour of an-other reading of her, she was asking for it. What the female deceased really

said or didn't say, what she meant or didn't mean, is elided in favour of an allegorical reading, a

cultural story about women who 'scold', 'scorn', "sting', 'batter' and 'wound' with words.

EPILOGUE

The characters in Quentin Tarantino's film Jackie Brown have been described as 'practical people,

whose needs are clear and who are not to be thwarted'; further, 'they are about action and not angst,

which makes them immensely appealing'. 91 The film's inducement to read Louis' sudden shooting of

Melanie as just a practical aspect of 'boys doing business' inscribes Louis' act of violence as

straightforward and uncomplicated. The violence against Melanie, the erasure of her dead body, the

disavowal of her subjectivity, was imperative to Louis getting the job done. Melanie simply got in the

way. In constrast, the configuration of Louis' character, until the scene in the parking lot where he

shoots Melanie, has been somewhat benign. From then on we are warned in no uncertain terms that

he is capable of 'sudden' violence. The audience is invited to interpret this change in character as

cathartic. Louis' decision to abandon words in favour of physical and brutal violence to resolve hisproblem makes him, if we follow the logic, immensely appealing.

When asked if he thought audiences had an attachment to Melanie when she died,Tarantinoresponded:

No. I think the audience has a complete love-hate relationship with Melanie. Audiences

applaud when Louis shoots her. It's impossible that someone could be asking for it, but

she's asking for it. She's a fucking smartass, treacherous and all these things. But we also

like her at the same time; she's a totally fun character. 92

11 Trial transcript, above n84, 479-80.90 See Ngaire Naffine,'Possession: Erotic Love in the Law of Rape' (1994) 57(1) Modern Law Review 10; on how the discursive

frame of romance functions as an alibi for rape, see Puren, Hyniencal Acts, above n31.91 Erik Bauer,'The Mouth and the Method [interview with Quentin Tarantino]' (1997) March Sight and Sound 7.

92 [bid, 9.


I would argue that the scene in the film demonstrates how violence is engendered in representation.13

The audience is invited to identify with the violence against Melanie in such a way that it is easy to

accept an all-too-familiar configuration of Melanie's subjectivity: the scold who talked too much.

For the audience, perhaps her brutal death comes as a relief. If so, they are complacent in accepting

a narrative of insult: that, after all, she deserved what she got, didn't she? I suggest that what their

applause also underscores is the success of another narrative, the 'man of action', the masculine subject

who is quick with his fists and not given to words.If we miss Tarantino's invitation to view Melanie as the 'real' antagonist during this verbal

exchange, we fail to acknowledge the unequal discursive investments in different and competingsubject positions.9 4 Given that film narratives are the product of choice, always partly intended,created and interpreted by the producer/ author, it is sometimes difficult to actively resist the dominantmodes of address and read 'critically' What escapes the gaze, what appears as 'natural', 'common-sense' or 'justified', is often overlooked or expected and can remain uncontested. In the film, theinstance of insult and the gendered trope of'she asked for it' evokes into narrative possibility theliterary figure of the scold. Likewise, the deployment of a legal narrative of insult by an accusedcharged with murder is indelibly marked by the imperatives of gender. In the sense that we generallyunderstand law to be retrospectively re-presenting the lives of'real' people and events, and film to bea conscious, but retrospective, re-presentation of'imagined' people and events, my reading of thelexical hinge between the discourse of law and the discourse of culture disrupts the division betweenfact and fiction, truth and falsehood, fantasy and reality.9 5 Law emerges as a discursive site thatattributes culpability by retelling a range of stories that are external to law and that betray an anxietyor tension around (hetero)sexuality, crime and sexual difference'9 .

93 I think that Tarantino's comments illustrate nicely the paradox of the violence of language when he explains his motive forthe excessive use of the word 'nigger' by Ordell. He says,'There is no word that should stay in word jail. It's all language... It'sall about the context in which it's used': ibid, 9. His strategy may be considered as an attempt to decontextualise the injuriouspotential of the racist utterance. As Butler notes, Excitable Speech, above nl, when we claim that we have been injured bylanguage, our vulnerability to language comes from our being constituted within its terms; the effect of injurious speech isto experience a profound shattering of one's "place';'one can be "put in one's place" by such speech, but such a place may beno place', 5. For Butler, the offensiveness of the utterance is neither fully contextual, nor is it always offensive regardless ofcontext, for this understanding misses the dimensions of power that underpin context. The paradox resides in the re-stagingof the performance of injurious-speech, as this re-staging of the prior context of the injury occurs at the same time itsperformance is prohibited in law. I do not intend for one minute to delegitimate the social and psychic harm experiencedby the racist insult, for as MacNamara, Long Stories, above n41, reminds us, the experience is indeed equivalent to a physicalblow, it strikes at the soul and the spirit of the imagination.

•94 Di Saco, 'Masculinity as Signs: Poststructuralist Feminist Approaches to the Study of Gender' in Steve Craig (ed), Men,Masculinity and the Media, Newbury Park: Sage, 1992, 23.

95 For analyses of the intersection of film and law, seeJohn Denvir (ed), Legal Reelisni: Movies as Legal Texts, Urbana: Universityof Illinois Press, 1996; on the intersection of media discourse and criminology, see AlisonYoung, Inmagining Crinmr: TextualOutlaws and Criniinal Conversations, London: Sage, 1996.

96 On the perceived 'crisis of masculinity' and representations of heterosexuality, crime and masculinity in Britain, see RichardCollier, Masculinity, Law and the Fanily, London: Routledge, 1995; and Masculinities, Crime and Critninology, London: Sage,1998; for a somewhat different discussion within the Australian context and criminology, see Andrea Rhodes-Little, Sovereign /Body:Towards a Theory of Deviant Writing as a Donmain of Constraint on the Perforniativity qf Civil Subiects, or, The Subject of EndlessDesire, Unpublished PhD thesis, La Trobe University, 1996.

'ASKING FOR IT'

This article has attempted to think through the paradox of the violence of insult debates. In

Butler's reformulation of the Austinian notion of the rule-governed 'total speech situation' which

sees meaning as determined by context, she writes that, '[i]f you [treat] the verbal threat as separate

from the act that it is said to perform then you are not taking into account "that speaking is itself a

bodily act"'. 97 Turning to the work of Foucault and Derrida to draw attention to the 'social power of

the speech-act', its 'specific social iterability' and its 'social temporality', she draws us to the performance

of the insult. 8 We are dependent, says Butler,'on a language whose historicity exceeds in all directions

the history of the speaking subject'. 99 This is to point to polysemy, the problem of meaning as social,

historical and institutional practice that connotes a different order of linguistic difficulty; the rhetorical

dimension of making meaning. 1' The efficacy of the insult must also be theorised in relation to its

production and deployment within specific institutional and discursive regulatory sites (law and legal

texts), its restriction within a discourse's internal ordering (according to a binary logic of value) and

its embeddedness in prior discursive formations.In my illustration of the narrative of insult in the discourse of culture and the discourse of law,

I have also sought to describe and examine its key tropes, by focusing on the legal discursive process

of positioning individuals as legitimate subjects of violence. As a representational practice, it endorses

a problematic form of violent self-repossession. 10' The category, masculinity, ends up as something

that is signified as violence, rather than as a particularly problematic re-presentation and re-inscription of

violence. Finally, both parties are positioned grammatically and discursively as subjects and objects of

insult, violence and desire. The discourse of law reinscribes the performance of the characters within

a plausible but predictable heterosexual script of violence, in which murder is posited as the dramatic

finale (being gagged, hit, bashed or stabbed to death) to a whole range of psycho-romantic conflicts,

including arguments between lovers that spiral out of control. This process of positioning subjects is

achieved by deployment of the gendered trope, 'she asked for it': it is a lexical hinge between the

discourse of law and the discourse of culture.

97 Butler, Excitable Speech, above nI, 10.98 Ibid, 2.

99 lbid, 28.100 Goodrich, Legal Discourse, above n2, 69.101 Rhodes-Little, The Subject of Endless Desire, above n96.

Documents

‘Asking For It’: An Anatomy of Provocation