Academic journal article Australian and New Zealand Journal of Criminology

A Consideration of the Merits of Specialised Homicide Offences and Defences for Battered Women

Academic journal article Australian and New Zealand Journal of Criminology

A Consideration of the Merits of Specialised Homicide Offences and Defences for Battered Women

Article excerpt

Abstract

In response to calls for reform, some jurisdictions have introduced specialised offences and defences for battered women who kill their abuser. In 2005, Victoria introduced the offence of 'defensive homicide'. More recently, in 2010, Queensland introduced a defence titled 'killing for preservation in an abusive domestic relationship'. If successful these approaches result in a conviction of defensive homicide and manslaughter respectively. While defensive homicide has been explored in a number of cases in Victoria; the Queensland defence has only been considered on a few occasions to date. This article reviews the underlying debates relating to these developments and then examines recent case law to consider the application of these two approaches and their effectiveness in light of what they were designed to achieve. The article concludes that the reforms may have resulted in some unintended consequences.

Keywords

abusive relationships, defensive homicide, preservation defence, self-defence, law reform, provocation

Introduction

Women kill far less frequently than men, but when women do kill, the deceased is often a male intimate partner who has abused them for years (Morgan, 2002). In many such cases the requirements of self-defence and the partial defence of provocation have been difficult for women to meet (Tyson, 2007: 305; Coss, 2002: 134). Since the 1980s attempts to modify these criminal defences so they better reflect the context of women's lives have continued to drive law reform initiatives in jurisdictions around the world. (1) In 2005 Victoria introduced a package of reforms to the Crimes Act 1958 (Vic). Key reforms included the abolition of provocation as a partial defence to murder, the inclusion of a definition of self-defence in legislation, reforms to evidence law and a new offence of defensive homicide (Department of Justice, 2010: 21). Faced with similar concerns, Queensland also undertook reform of the Criminal Code Act 1899 (Qld) (QCC). In 2010 Queensland introduced a new partial defence to murder titled 'killing for preservation in an abusive domestic relationship' (referred to as the 'preservation defence') which, if successful results in a conviction for manslaughter (section 304B, QCC) and in 2011, changes to the partial defence of provocation (section 304, QCC). This article examines the application of the offence of defensive homicide and the preservation defence. After briefly discussing the concerns that these two relatively new provisions seek to address, the article explores their operation in recent cases and considers their effect.

Underlying concerns

The problem the Victorian and Queensland reforms sought to address is well rehearsed (Howe, 1999, 2002; Coss, 2002). It is argued that both provocation and self-defence are not equally available to men and women (Morgan, 2002). While both men and women have relied on provocation in intimate partner homicides (Bradfield, 1998), men have often successfully argued that they were provoked to kill by their partner's alleged infidelity and/or their partner leaving or threatening to leave the relationship (Coss, 2006: 59-60). In contrast, women have often claimed provocation in the context of a long history of abuse (VLRC, 2004: 29). Often when men kill their intimates they are primarily motivated by jealously and a need for control (Dobash and Dobash, 2010: 130), while women's actions are more commonly motivated by fear, suggesting self-defence rather than provocation (Howe, 1999; Taskforce, 2000:172-174). In most Common Law jurisdictions, self-defence is available where the accused believes on reasonable grounds that the responsive force used was necessary in self-defence. While self-defence has regularly succeeded for men who kill in response to attacks in public places, the application of self-defence to women who kill in the context of extended intimate violence has encountered strong resistance (VLRC, 2004: 61, 63). …

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