Homicide Law Reform in Australia: Improving Access to Defences for Women Who Kill Their Abusers (original) (raw)
Related papers
Homicide Law Reform in Australia: Improving Access of Women Who Kill their Abusers to Defences
Monash University Law Review, volume 39(3)., 2013
Over the past three decades, the law of homicide has been the subject of much academic debate, parliamentary review and various law reform commission reports throughout Australia. Such activity is largely a response to concerns about the availability and operation of the defences to homicide for women who kill in the context of family violence. The law in each state and territory in Australia differs and the issues with which reform bodies are grappling are complex. It is therefore not surprising that different recommendations have been made about how best to produce a more just law of homicide. This article explores some of these reviews and recommendations — particularly in New South Wales, Queensland, Victoria and Western Australia — and the reforms that have been planned and implemented. It will reveal that, despite sharing the core concern of improving the access to appropriate defences for women who kill their abusers, reform has been far from consistent across these jurisdictions.
This article examines the impact of legislative reforms enacted in 2005 in Victoria, Australia, on legal responses to women charged with murder for killing their intimate partner. The reforms provided for a broader understanding of the context of family violence to be considered in such cases, but we found little evidence of this in practice. This is partly attributable to persistent misconceptions among the legal profession about family violence and why women may believe it necessary to kill a partner. We recommend specialized training for legal professionals and increased use of family violence evidence to help ensure women's claims of self-defense receive appropriate responses from Victorian courts. Gender bias in legal responses to intimate partner homicide in Australia and over-seas—particularly regarding the defenses to homicide—has been much debated in academia and reviewed by various law reform commissions. Feminist scholars in almost all Western criminal jurisdictions have argued that the partial provocation
Reforming Defences to Homicide in Victoria: Another Attempt to Address the Gender Question
In 2005 in the Australian state of Victoria, significant changes were made to the defences to homicide. These reforms were in response to long standing concerns about the gendered operation of provocation and self‐defence by feminist researchers and advocates, Law Reform Commissions, the media and political pressures. This paper critically examines the reforms and the extent to which they have addressed these varied concerns and interests. The paper argues that these important law reforms have challenged some of the powerful narratives being used in the courts that minimise the existence and significance of family violence in intimate relationships. We see this particularly in judicial sentencing remarks. However, law reform must be accompanied by a shift in legal culture to be effective in practice. To this end, we argue that legal professionals need to have information about how to utilise the new family violence provisions as well as ongoing training and professional development to promote consistent understandings of family violence across the criminal justice system.
This article takes stock of what is happening in the defence of battered women who are charged with homicide across three jurisdictions – Australia, Canada and New Zealand. In Part 1 the current legal requirements for the most relevant defences in all three jurisdictions are briefly outlined, with a focus on those legal developments that are likely to assist in the defence of battered women. In Part 2 general trends in how homicide cases involving accused battered women were resolved from 2000 to 2010 in the three jurisdictions are examined. This analysis suggests that further work is needed to improve the legal response to these kinds of cases, but that the changes needed are not necessarily in the area of statutory reform.
2019
This article seeks to draw conclusions about the potential impact of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic). We do so by considering whether defensive homicide served as a safety net in the 2014 case of Director of Public Prosecutions (Vic) v Williams. The article presents a detailed analysis of the trial transcript and sentencing remarks to support the contention that the defence did in fact achieve this purpose. The conclusion rests, principally, upon understanding the jury finding that Williams killed in the belief that her actions were necessary for her own protection, but apparently determined that she had no reasonable grounds for that belief (thereby failing the legal test of self-defence as it then stood). Having looked at how the 2014 legislation also amended relevant evidence laws, and reinforced jury directions to accommodate considerations of family violence, we then consider the implications of these reforms for battered women who kill. We...
Victoria's New Homicide Laws: Provocative Reforms or More Stories of Women 'asking for it'?
2011
The controversial partial defence of provocation has now been abolished in three Australian jurisdictions, including Victoria. Recent developments in Victorian case law would appear to suggest a continuation of 'excuses' for male anger and violence towards women that position the woman victim as to blame for her own death. This article considers that the 2005 abolition of provocation was only in part designed to redress the problem of victim-blame. The decision was accompanied by other key changes introduced into the Crimes Act 1958 (Vic) to make it easier for women who kill in the context of family violence to successfully claim self-defence and 'excessive self-defence' (defensive homicide). Drawing on recent developments in Victorian case law since the 2005 amendments, this article argues that the claim that provocation's victim-blaming narratives are being mobilised in the guise of other defences merits closer analysis. It also argues that provocation's critics must continue to expose the gendered (and raced) assumptions underlying the other defences to homicide, such as self-defence including manslaughter and the new offence of defensive homicide. Otherwise there is a risk that provocation's victim-blaming narratives could end up rewritten in such a way that support an argument for a reduction in culpability in cases where there is a history of violence against the woman victim, which is likely to result in claims that little has changed.
Victoria’s New Homicide Laws: Provocative Reforms or More Women “Asking For It”?
Current Issues in Criminal Justice, 2011
The controversial partial defence of provocation has now been abolished in three Australian jurisdictions, including Victoria. Recent developments in Victorian case law would appear to suggest a continuation of 'excuses' for male anger and violence towards women that position the woman victim as to blame for her own death. This article considers that the 2005 abolition of provocation was only in part designed to redress the problem of victim-blame. The decision was accompanied by other key changes introduced into the Crimes Act 1958 (Vic) to make it easier for women who kill in the context of family violence to successfully claim self-defence and 'excessive self-defence' (defensive homicide). Drawing on recent developments in Victorian case law since the 2005 amendments, this article argues that the claim that provocation's victim-blaming narratives are being mobilised in the guise of other defences merits closer analysis. It also argues that provocation's critics must continue to expose the gendered (and raced) assumptions underlying the other defences to homicide, such as self-defence including manslaughter and the new offence of defensive homicide. Otherwise there is a risk that provocation's victim-blaming narratives could end up rewritten in such a way that support an argument for a reduction in culpability in cases where there is a history of violence against the woman victim, which is likely to result in claims that little has changed.
The aftermath of provocation: homicide law reform in Victoria, New South Wales and England
2017
Over the past decade, homicide law reform surrounding the partial defences to murder has animated debate among criminological scholars and legal stakeholders in Australia and the United Kingdom. In response to these debates, criminal jurisdictions have conducted reviews of the partial defences to murder and implemented reforms targeted at reducing gender bias in the law which has played out through the operation of the partial defence of provocation. This research examines the different approaches taken to addressing the problem posed by provocation in Victoria, New South Wales and England. In doing so, it explores questions around the need for reform to the law of homicide, the effects of these reforms in practice, and the influential role of sentencing in questions surrounding homicide law reform. Throughout the analysis key frameworks of criminological thought in relation to feminist engagements with the law, the conceptualisation of denial and the influence of law and order poli...
Divergent directions in reforming legal responses to lethal violence
Australian & New Zealand Journal of Criminology, 2012
Over the past three decades, debates about legal reforms to lethal violence have been evident across Australia and in other jurisdictions. While these debates have often arisen from shared concerns, the resulting reforms have taken different approaches to reformulating the defences to murder. This article considers the divergent approaches taken to reform and the process of law reform itself, documenting the significance of localised histories and high profile cases. It also questions whether reforms to the defences to murder have responded adequately to the varying contexts within which men and women kill. The analysis reveals the limitations of law reform inquiries that fail to take a comprehensive approach to considering the operation of the laws in this area. The article calls for ongoing critical analysis of homicide within and beyond the law.