Academic journal article Australian and New Zealand Journal of Criminology

Divergent Directions in Reforming Legal Responses to Lethal Violence

Academic journal article Australian and New Zealand Journal of Criminology

Divergent Directions in Reforming Legal Responses to Lethal Violence

Article excerpt

Abstract

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.

Keywords

defences to murder, excessive self defence, homicide law reform, provocation, self defence

Introduction

Homicides are relatively infrequent events but attract disproportionate attention in public discourse and from the media. Criminal justice system responses to homicide are subject to a high level of critical scrutiny, which in turn may inflect public (mis)understandings of criminal law and process, and affect levels of public confidence in the justice system. In recent decades the complexity and incoherence of homicide laws, including the defences to murder, have been noted in several jurisdictions, but what has more often prompted calls for law reform and sparked ongoing debates about the direction for reform have been high-profile cases with outcomes that are seen as unjust, inequitable or contrary to public expectation. A common concern has been that some defences to murder are gender biased in substance or in practice in that they fail to adequately accommodate the circumstances of victims of domestic (1) and or sexual abuse (typically women) who kill, while too readily accommodating undeserving men such as those who rely on the partial defence of provocation having killed an intimate partner, or another man in so called homosexual advance killings.

Law reform inquiries and other forms of review have occurred internationally and in some Australian jurisdictions, and have often been followed by the implementation of statutory reforms to the defences to murder and/or the rules of evidence. Yet across similar legal systems, these reforms have taken divergent directions, failed to reduce complexities in the operation and structure of the law of homicide, and as such, continue to attract criticism (on England and Wales, see Quick and Wells, 2012 this issue). In this article we document recent developments in the law of homicide in various Australian jurisdictions by examining the divergent directions that those law reforms have taken while also recognising the limitations of law reform with this area.

Criminological and legal discourse commonly assumes a high level of moral consensus about murder, suggesting a greater clarity about the boundaries of murder and more coherence in the laws of homicide than are apparent on critical examination (Brown et al., 2011: 14). However, Naffine (2009: 219) argues that far from offering a clear case based on consensus, offences such as rape and murder demonstrate considerable 'moral uncertainty'. Moreover, as Norrie (2005: 59) notes there 'is an important gap between legal concepts used to judge deaths, and the moral quality of the killings ... legal categories have to be teased and twisted to reflect the moral quality of killings in particular cases'. This 'lack of fit between criminal law doctrine' and the 'reality of criminal law practices' (Brown et al., 2011: 5), is an important focus for research. Recognition of this conceptual gap also highlights the need for a broader contextual understanding of homicide, criminal laws and procedure and processes of law reform, since ongoing debates and controversies around legal responses to homicides are unlikely to be settled satisfactorily by reference to (mythical) moral certainties or legal principles that are at odds with empirical reality. …

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