Self-Defence and the Reasonable Woman: Equality before the New Victorian Law

By Toole, Kellie | Melbourne University Law Review, April 2012 | Go to article overview

Self-Defence and the Reasonable Woman: Equality before the New Victorian Law


Toole, Kellie, Melbourne University Law Review


[The Crimes Act 1958 (Vic) was amended in 2005 to codify self-defence to murder and introduce the offence of defensive homicide. The 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. The 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.]

CONTENTS

  I Introduction
 II Background to the Law Reform
    A Women and Self-Defence to Murder
    B Background to the New Provisions--Heather Osland
    C Transition to the New Provisions--Claire MacDonald
III The Law Reform
    A Codification of Self-Defence
    B Excessive Self-Defence/Defensive Homicide
    C Evidence of Family Violence
    D Application of the New Provisions
 IV Discontinued and Dismissed Cases: 'SB' and Dimitrovski
    A 'SB'
    B Freda Dimitrovski
    C Impact of the New Provisions
 V Convictions: Black and Creamer
       A Karen Black
           1 History of Violence
           2 Pleas to Manslaughter
           3 Black's Background
           4 Reasonableness
       B Eileen Creamer
           1 Prosecution Case
           2 Defence Case
           3 Creamer's Credibility
           4 History of Violence
           5 Attitudes to Family Violence
VI Conclusion

I INTRODUCTION

The Victorian Parliament made sweeping reforms to defences to homicide in November 2005. The Crimes (Homicide) Act 2005 (Vic) amended the Crimes Act 1958 (Vic) ('Crimes Act') to codify self-defence to murder (1) and recognise excessive self-defence as a partial defence to murder through the offence/alternative verdict of defensive homicide, (2) These amendments were supported by the introduction of a provision allowing the admission of evidence of prior family violence where a defendant is on trial for killing a family member. (3) The primary aim of the reforms was to expand the scope of self-defence to apply more effectively to women who kill their abusive partners. The then Attorney-General described ss 9AC, 9AD and 9AH ('the new provisions') as

   removing entrenched bias and misogynist assumptions from the law to
   make sure that women who kill while genuinely believing it is the
   only way to protect themselves or their children are not condemned
   as murderers. (4)

Jurisdictions across the world struggle to provide legal protection for women who kill violent partners in circumstances where self-defence is not made out, (5) but where, according to community standards, they do not deserve to be stigmatised as murderers. (6) This issue is so well documented that one commentator suggests it is 'trite' to point it out. (7) The law of self-defence is capable of accommodating the experiences of women who kill abusive partners. The problem is that sections of the community and the legal profession do not adequately understand the dynamics of family violence, and so the law of self-defence is not always applied to the experiences of abused women. Where the law of self-defence does not accommodate their experiences, abused women are not equal before the law. (8)

Victoria's reforms were preceded by several years of research by the Victorian Law Reform Commission ('VLRC'). Its research analysed extensive data on the social and psychological dynamics of violent relationships and involved consultations with academics, police officers, members of the legal and medical professions, domestic violence workers and victim advocates. (9) If the reforms prove to be fairer to both abused women and to the broader community than the common law and statutory provisions in other jurisdictions, they have the potential to make a significant international impact by providing a model to address a human rights issue that has confounded western courts and legislatures for decades. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Self-Defence and the Reasonable Woman: Equality before the New Victorian Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.