Divergent directions in reforming legal responses to lethal violence
| Author | Julie Stubbs,Kate Fitz-Gibbon |
| DOI | 10.1177/0004865812456853 |
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
45(3) 318–336
!The Author(s) 2012
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DOI: 10.1177/0004865812456853
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Article
Divergent directions in
reforming legal responses
to lethal violence
Kate Fitz-Gibbon
Deakin University, Australia
Julie Stubbs
University of New South Wales, Australia
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,
Corresponding author:
Kate Fitz-Gibbon, Lecturer in Criminology, School of Humanities and Social Sciences, Faculty of Arts and Education,
Deakin University, Victoria.
Email: k.fitzgibbon@deakin.edu.au
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 imple-
mentation of statutory reforms to the defences to murder and/or the rules of
evidence. Yet across similar legal systems, these reforms have taken divergent dir-
ections, 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 diver-
gent directions that those law reforms have taken while also recognising the limi-
tations of law reform with this area.
Criminological and legal discourse commonly assumes a high level of moral con-
sensus 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 consid-
erable ‘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 kill-
ings ...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 homi-
cides are unlikely to be settled satisfactorily by reference to (mythical) moral certainties
or legal principles that are at odds with empirical reality. Of course, laws are the
product of historical, social and political contexts, and legal practices give effect to
law in particular contexts. Bringing criminological frameworks to bear in reflecting on
legal responses to homicide is a central focus of the current special issue.
This article begins that reflection by providing a critical evaluation of not only the
ways in which Australian jurisdictions have sought to reform the law’s responses to
lethal violence but also the impetus for these reforms, and importantly the limitations
of these reforms in practice. In doing so, this article looks first at the influence of
localised histories, high-profile cases and the mandate of law reform inquiries, and
second, at the specific directions of recent reforms targeted at the law of self defence,
excessive self defence and provocation while also recognising the importance of evi-
dentiary provisions and the structure of sentencing in any law reform exercise. The
resulting analysis highlights that while debates surrounding the laws of homicide have
often been stimulated by shared concerns about the gendered operation of homicide
laws, the reforms implemented have taken divergent approaches to solving the prob-
lems posed by the operation of the defences to murder.
Fitz-Gibbon and Stubbs 319
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