Battered women charged with homicide in Australia, Canada and New Zealand: How do they fare?
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
| DOI | 10.1177/0004865812456855 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
45(3) 383–399
!The Author(s) 2012
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DOI: 10.1177/0004865812456855
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Article
Battered women charged with
homicide in Australia, Canada
and New Zealand: How do they
fare?
Elizabeth Sheehy
University of Ottawa, Canada
Julie Stubbs
University of New South Wales, Australia
Julia Tolmie
University of Auckland, New Zealand
Abstract
This article examines trends in the resolution of homicide cases involving battered women
defendants from 2000 to 2010 in Australia, Canada and New Zealand. Australia and Canada
appear to have some commonalities in their treatment of such cases with higher acquittal
rates and a greater reliance on plea bargaining to produce manslaughter verdicts, as com-
pared with New Zealand. Although New Zealand’s small number of cases makes it difficult to
generalise, its overall trends appear to be different from those observed in Australia and
Canada, in both the high proportion of cases proceeding to trial and those resulting in
conviction for murder. The authors conclude that there is a need to re-examine prosecutorial
practices of proceeding to trial on murder rather than manslaughter charges even when
manslaughter would be ultimately satisfactory to the prosecution, and of accepting guilty
pleas to manslaughter verdicts in circumstances where the battered woman appears to
have a strong self-defence case.
Keywords
battered women, defences, domestic violence, homicide, plea bargaining
A great deal of advocacy and law reform in recent decades has focused on homicide
cases arising in circumstances of domestic violence. It has been widely acknowledged
that battered women who kill an abusive partner have faced significant obstacles in
Corresponding author:
Julia Tolmie, Faculty of Law, University of Auckland, Private Bag 92019; Auckland Mail Centre, Auckland 1142,
New Zealand.
Email: j.tolmie@auckland.ac.nz
having their resort to violence understood and appraised fairly within the legal system.
Obstacles to fair treatment have included limitations in substantive law and its applica-
tion, rules of evidence, and extra-legal factors that shape how law and legal argument is
interpreted and given effect (Bradfield, 1998; Seuffert, 1997, Stubbs and Tolmie, 2005).
Developments in common law and statutory reforms have sought to make the law more
able to accommodate the claims of battered women who have killed in response to the
violence they have experienced, but have done so in different ways such that the legal
position across Australia is complex, with a disparate array of defences and partial
defences, with different technical requirements. (Sheehy et al., forthcoming; Guz and
McMahon, 2011)
The recent review of family violence-related legislation jointly undertaken by the
Australian Law Reform Commission and the New South Wales Law Reform
Commission (ALRC/NSWLRC, 2010) documented the diversity of legal rules related
to homicide across the states and territories. They called for empirical research to exam-
ine ‘how the relevant defences are being used,... by whom and with what results,’ along
with ‘the impact of rules of evidence and sentencing laws and policies on the operation of
defences’ for victims of family violence who commit homicide (ALRC/NWSLRC, 2010,
rec.14–2: 27). This article makes a contribution to that task. It takes a comparative
approach, analysing the outcomes of battered women’s homicide cases in Australia,
Canada and New Zealand, over the decade 2000–2010. By drawing on experience
across three countries with somewhat similar legal traditions, the study offers an insight
into current practice, and into how formal legal requirements are given effect.
1
It chal-
lenges the notion that there is any simple correspondence between legal rules and the
case outcomes and it demonstrates the importance of prosecutorial discretion. When
outcomes are compared with the historical resolution of such cases (where comparison is
possible) there is evidence of some improvement in the legal system’s response. However,
New Zealand appears to remain out of line with apparent trends in Australia and
Canada. Furthermore, prosecutorial charging practices across the three jurisdictions
appear to have been impervious to change and may be contrary to the public interest
in just outcomes in cases of battered women defendants.
Battered women defendants: Outcomes of homicide cases
in Australia, Canada and New Zealand
Web and database searches of media articles and reported and unreported cases were
undertaken in Australia, Canada and New Zealand in order to compile information
about the resolution of all such cases within the period 2000–2010. There are obvious
limitations to this study, which we acknowledge. Since there is no comprehensive listing
of homicide cases (as distinct from aggregate statistics) in any of the three countries, we
were necessarily reliant on cases being reported publicly. Thus, our data are based on
cases in which sufficient information exists in the public domain – either in the media or
in legal databases. Cases that are not publicly recorded, for example, because the Crown
decided not to proceed with charges, or because the media was not alerted to the case or
chose not to report it, are not included. Media databases are selective and do not pick up
all newspapers or news sources. It is also possible that we have omitted relevant cases
because the history of abuse was not adequately presented in court or was not recorded
384 Australian & New Zealand Journal of Criminology 45(3)
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