A consideration of the merits of specialised homicide offences and defences for battered women
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
| DOI | http://doi.org/10.1177/0004865812456851 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Journal of Criminology
45(3) 367–382
A consideration of the merits
! The Author(s) 2012
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of specialised homicide offences
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DOI: 10.1177/0004865812456851
and defences for battered
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women
Heather Douglas
University of Queensland, Australia
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
Corresponding author:
Heather Douglas, University of Queensland, Sir Fred Schonell Drive, St Lucia, 4072, Australia.
Email: h.douglas@law.uq.edu.au
368
Australian & New Zealand Journal of Criminology 45(3)
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 pres-
ervation 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 infi-
delity 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 pri-
marily 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 appli-
cation of self-defence to women who kill in the context of extended intimate violence has
encountered strong resistance (VLRC, 2004: 61, 63). The requirement of ‘reasonable
grounds’ has been interpreted in a way that sometimes excludes womens’ experiences.
For example some women have waited until their abuser is asleep or their back is turned,
suggesting a pre-emptive strike and that they are responding to non-imminent danger
(Ramsay, 2010: 61–62; Osland v R (1998)). Due to discrepancies in size and the experi-
ence of abuse, women are often armed when they kill, while their victim is unarmed,
suggesting an excessive response (VLRC, 2004: 62, 67). In Queensland the requirement
of an unlawful assault, as a threshold for the application of self-defence, has proved a
barrier to some women who killed in response to a particular look or action from their
abuser that they know will precipitate dangerous levels of violence (Rathus, 2002).
Victoria and defensive homicide
In 2004, the Victorian Law Reform Commission (VLRC) recommended abolition of the
provocation defence.2 The VLRC found that this defence, despite the fact that it had
been incrementally changed over time in an attempt to ensure that it was applied fairly,
had continued to reinforce gender inequality (VLRC, 2004: xxviii). Provocation was
abolished as a defence to murder in Victoria in 2005 (Crimes (Homicide) Act 2005
Douglas
369
(Vic) section 1), although it remains relevant in sentencing (Stewart and Freiburg, 2008).
The Victorian legal reforms also reformulated self-defence and established a new offence
of ‘defensive homicide’ with a maximum penalty of 20 years imprisonment (Crimes Act
1958 (Vic), sections 9AC & 9AD). In an attempt to ensure that womens’ experiences of
violence inform the analysis of the person’s belief in the necessity of the defensive
response, and drawing on the critique of Stubbs and Tolmie (1999), the Victorian
reforms to evidence law specifically recognise the potentially cumulative effect of
family violence on an individual and the particular context and dynamics of abusive
relationships (Crimes Act 1958 (Vic), section 9AH).
In introducing the offence of ‘defensive homicide’ the then Attorney General stated
that it provided a kind of ‘halfway house’ between complete acquittal and conviction for
murder and that it may encourage more women to plead not guilty to murder on the
basis of self-defence because it was no longer ‘all or nothing’ (Hulls, 2005; VLRC, 2004:
xxix). Defensive homicide applies when a person kills believing it is necessary to kill to
protect themselves but where the belief is ultimately not found to be reasonable.
The offence has been described by some as a reintroduction of excessive self-defence
(R v Gould (2007); Priest, 2007; Hopkins and Easteal, 2010: 134). However according to
Weinberg, defensive homicide is not in truth about using excessive force, rather the focus
is on the actions of the accused and whether they unreasonably believed those actions
were necessary, not on whether the force used was necessary (2011: 11).
Defensive homicide in practice
So far, in almost all of the reported matters, where a person has been convicted of the
crime of defensive homicide, both the defendant and the victim have been men. However
three cases, discussed in more detail below, have involved intimate partner homicides.
Thirteen cases of defensive homicide were dealt with in Victoria between 2005 and 2010
(Department of Justice, 2010: 34). One case, R v Middendorp (2010a), is of particular
interest. This case caused substantial community concern (Fitz-Gibbon and Pickering,
2012: 169) and prompted a review of the offence.
In its report on Defences to Homicide the VLRC (2004) had recommended that any
subsequent reforms should be reviewed every five years. This recommendation along
with the R v Middendorp (2010) case spurred the Victorian Government to review the
application of defensive homicide (Department of Justice, 2010: 3) and a discussion
paper (the Discussion Paper) was released in August 2010. The Discussion Paper exam-
ined defensive homicide cases from 2005 to 2010. In this period there were 13 cases that
resulted in a conviction for defensive homicide, 10 resulted from a guilty plea and three
resulted from a trial for murder with a jury verdict of guilty to defensive homicide. All of
the offenders in these cases were male and in only one case, R v Middendorp (2010), was
there a female victim. Most of the offenders had prior convictions and a history of drug
abuse and the average age of offenders was 28 years. In relation to the guilty plea cases
the discussion paper observed that generally they involved ‘young men in one-off violent
confrontations’ (Department of Justice, 2010: 36). Existing or past family violence was
relevant only in R v Middendorp (2010). The Discussion Paper suggested that most of the
defensive homicide cases more closely resembled the ‘traditional formulation of self-
defence’ (Department of Justice, 2010: 36, 44). However, in considering the cases,
370
Australian & New Zealand Journal of Criminology 45(3)
many others claimed that defensive homicide was...
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