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

Article excerpt

[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. …