Divergent directions in reforming legal responses to lethal violence

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.

“Till Death Us Do Part”: Homicide Defenses for Women in Abusive Relationships—Similar Problems—Different Responses in Germany and Australia

“…Reform is not just about changing the words on a page. (cited in Fitz-Gibbon & Stubbs, 2012, p. 331)…”

“…Historically under common law, self-defense required evidence of an imminent unlawful attack or threatened attack by another person (Bronitt & McSherry, 2010; Fitz-Gibbon & Stubbs, 2012; Guz & McMahon, 2011). One of the problems associated with self-defense in cases of domestic homicide in nonconfrontational circumstances revolved around the criterion of “imminence” of a threat or attack.…”

“…Evidence of domestic violence is seen to have a broader focus than some more narrowly focused interpretations of BWS–for example, those focusing exclusively on the individual psychology of the accused rather than the reasonableness of their actions in the context of domestic violence. Evidence of domestic violence may thus be more useful for a jury’s understanding of the reasonableness of the accused’s actions (Fitz-Gibbon & Stubbs, 2012; Victorian Law Reform Commission, 2004).…”

Family Violence in Domestic Homicides

“…For an overview of these debates, see Tyson, 2013). Although the outcomes of reviews of the defenses to homicide have varied considerably across Australian jurisdictions (e.g., Crofts & Tyson, 2014; Fitz-Gibbon & Stubbs, 2012), the Victorian government proceeded with a comprehensive package of reforms to the Crimes Act 1958 through its Crimes (Homicide) Act 2005 . The new act abolished the controversial partial defense of provocation, reformed the full defense of self-defense, created a new offense of defensive homicide, and clarified the laws of evidence to allow for the admission of relevant evidence about family violence.…”

“…In contrast, the defense of self-defense has largely failed women who kill to protect themselves from their male partner's violence (Browne, 1987;Howe, 1994;Kruttschnitt & Carbone-Lopez, 2006;Maguigan, 1998;Mahoney, 1991;Schneider, 2000;Sheehy, 2014;Sheehy, Stubbs, & Tolmie 1992;Stubbs & Tolmie, 1995. For an overview of these debates, see Tyson, 2013). Although the outcomes of reviews of the defenses to homicide have varied considerably across Australian jurisdictions (e.g., Crofts & Tyson, 2014;Fitz-Gibbon & Stubbs, 2012), the Victorian government proceeded with a comprehensive package of reforms to the Crimes Act 1958 through its Crimes (Homicide) Act 2005. The new act abolished the controversial partial defense of provocation, reformed the full defense of selfdefense, created a new offense of defensive homicide, and clarified the laws of evidence to allow for the admission of relevant evidence about family violence.…”