Victoria's New Homicide Laws: Provocative Reforms or More Stories of Women 'asking for it'? (original) (raw)
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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...
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.
In November 2005, the Victorian Government implemented a new offence of defensive homicide, alongside the abolition of the partial defence of provocation. This new category of homicide was introduced, not as a replacement for the abolished provocation defence, but rather as a ‘safety net’ between murder and an acquittal for women who kill in response to prolonged family violence. Since its implementation, the operation of this new offence has already begun to raise concern, particularly in relation to its successful use in the 2010 trial of Luke Middendorp. Using defensive homicide as a case study, this article examines the continued delegitimisation of victims in the Victorian criminal justice process. Specifically, it draws from a transcript analysis of cases resolved in the first seven years of the offence’s operation, to consider the use of the offence in three contexts: when raised by men who have killed a female intimate partner; where successfully used in cases of lethal male on male violence; and where applied to female defendants who have killed in response to prolonged family violence. The resulting theoretical discussion suggests that in the wake of abolishing provocation the Victorian law of homicide has continued to minimise the status of victims and in so doing, has been unable to distance itself from the narratives of victim blame, denigration and delegitimisation that were previously linked to the operation of the controversial provocation defence.
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...
Melbourne University Law Review, 2017
The partial defence of provocation has long attracted controversy and animated law reform in Australia and elsewhere. In June 2012, debate surrounding the provocation defence reignited in New South Wales following the trial and sentencing of Chamanjot Singh for manslaughter (by reason of provocation). In the wake of Singh, the NSW Legislative Council established a Select Committee to undertake a review of the partial defence of provocation. This article builds on the work done by the NSW Select Committee on the Partial Defence of Provocation in 2013. In doing so, it examines the merits of the newly formulated partial defence of 'extreme' provocation and argues that NSW would be better placed to repeal provocation as a partial defence and transfer its consideration to sentencing. It is argued that by reforming sentencing guidelines for murder in NSW, the law may be able to move beyond the problems traditionally associated with the provocation defence and more adequately respond to the gendered nature of homicide. CONTENTS
Self-Defence and the Reasonable Woman: Equality Before the New Victorian Law
2012
Crimes Act 1958 (Vic) was amended in 2005 to codify self-defence to murder and introduce the offence of defensive homicide. e changes aimed to improve legal protection for women who kill abusive family members. Four such women have faced murder charges since the new provisions were enacted. Two of the cases did not proceed beyond the committal stage, and two resulted in defensive homicide convictions. e lack of understanding of the dynamics of family violence that limited the way in which common law self-defence applied to abused women is now affecting the application of the new provisions. Of the two convictions for defensive homicide, one complete acquittal and one conviction for murder appear to be more appropriate outcomes.] C O N T E N T S * BA (Hons), LLB/LP (Hons) (Flin), MA (Adel); Associate Lecturer, Law School, University of Adelaide. e author sincerely thanks Professor Ngaire Naffine and two anonymous referees for their helpful comments on dras of this paper.
Homicide Law Reform in Australia: Improving Access to Defences for Women Who Kill Their Abusers
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 jurisdict...
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.