page created 21 August '98
updated 10 Oct. '98
THE WOMEN WHO KILL IN SELF-DEFENCE CAMPAIGN
SUBMISSION AND
CALL FOR ENDORSEMENTSCall for endorsments began 25 August 1998 and concluded on 11 September 1998
Take this link to the endorsement form
fax to: c/- Nancy Peck at (03) 9360 4851
e-mail: deerpark@vicnet.net.auTHE WOMEN WHO KILL IN SELF-DEFENCE CAMPAIGN Submission to the Model Criminal Code Officer's Committee
Fatal Offences Against the Person
Index
1. Aims of the `Women who Kill in Self-defence' campaign
2. Summary of key points in this submission
3. Introduction
4. The context of spousal homicide
5. Self-defence5.1 Current problems with the application of self-defence
5.2 Self-defence is gender biased
5.3 Proportionality and imminence
5.4 Reforming self-defence
5.5 The Battered Woman Syndrome
5.6 Evidence of domestic violence
5.7 Expert testimony
5.8 Expert witnesses
5.9 The need for judges to give specific directions to juries
5.10 Proposals for judges directions to juries6. MCCOC's recommendation to abolish provocation
7. Problems with provocation7.1 Based on a male model of violence
7.2 Currently operates to excuse men's violence against women
7.3 Self-defence is a more appropriate defence for women8. Arguments for retaining provocation
8.1 Women use the defence of provocation
8.2 Self-defence is as biased against women
8.3 Abolition of provocation will only shift gender inequity from jury decision making to judges'
8.4 Law and order climate
8.5 Recent reform has improved provocation for women defendants9. Proposals for retention and reform of provocation
10. Concluding comments
11. A note on time restrictions in preparing submission
Footnotes
BibliographyNote: the Model Criminal Code Officers Committee Discussion Paper on Fatal Offences Against the Person to which this submission responds is on the web at http://law.gov.au/publications/Model_Criminal_Code/index.htm
1. Aims of the `Women Who Kill in Self-defence' campaign
The Women Who Kill in Self-defence Campaign is concerned with the legal treatment of women who kill abusive partners. The campaign aims to address gender bias in the following areas:
* the legal definitions of self-defence and provocation and their application in cases of women who kill in circumstances of domestic violence;
* the inadequate level of support which women in domestic violence receive from some professions when they seek help;
* the limitations of the legal options available to women in domestic violence;
*inadequacies with the `battered woman syndrome' which pathologises women and defines survivors of domestic violence as helpless and sick.
The campaign seeks that the actions of women who kill to protect their lives or the lives of their children be recognised by the law as self-defence (rational and justified) and not further perpetuate women's experiences of abuse.
2. Summary of key points in this submission
* Spousal homicides perpetrated by both men and women are generally preceded by and are the result of a history of domestic violence by the man against the woman.
* Self-defence is the most appropriate defence for women who kill to save their lives or the lives of their children in domestic violence.
* Self-defence is not being utilised by women defendants.
* There are problems with the application (gender biased) of self-defence laws in cases of women who kill violent partners.
* Judges should be required to give specific instructions to juries on the application of self-defence laws in cases of women who kill violent men which address the myths and stereotypes about domestic violence and women's experiences of it.
* Evidence of domestic violence must be admitted in trials of women who kill a partner who has subjected them to domestic violence.
* Expert evidence in relation to domestic violence should be permitted by professionals other than psychiatrists, such as domestic violence workers.
* The partial defence of provocation is being used by women who kill in self-defence due to the problems with the application of self-defence laws.
* Provocation should be retained because, in practice, it is the only defence that is currently afforded women who kill, due to difficultes in raising self-defence.
* Removal of provocation would mean that many women who kill violent men would be convicted of murder.
* Provocation should be reformed to ensure that sexual jealousy and separation in relationships does not constitute provocation. Womens right to autonomy and personal freedom should be upheld by the courts.
The MCCOC discussion paper recommends abolition of provocation. The feminist arguments for the abolition of provocation are very convincing - that the defence is biased against women and operates in a number of instances as an excuse for men to kill women. In this submission we argue that provocation undoubtedly operates in a gender biased way that is advantageous to men. It is unacceptable that women's attempts to leave abusive relationships or to engage in relationships with others have been seen to constitute provocation.
However, self-defence, also operates in a gender biased way. While self-defence is generally the most appropriate defence for women who kill in a domestic violence context, in practice the courts have not been able to see women's actions as self-defence. This is because self-defence, like provocation, is based on male models of behaviour. The aim of law reform of fatal offences should be to increase the availability and adequate application of the laws relating to self-defence for women.
Currently women are often pleading guilty to manslaughter on the basis of provocation or being found guilty of manslaughter at trial, rather than using self-defence. Self-defence is not only the most appropriate defence for women who kill to save their lives it is also the most desirable defence as it allows a full acquittal. Self-defence is a justification for killing, while provocation is seen in law to be an excuse for killing, it is only a partial defence to murder, reducing the conviction to manslaughter (which implies lesser culpability).
Self-defence is not operating in practice for women who should be entitled to the defence. Because of the problems with self-defence, women defendants rely on the less appropriate defence of provocation. Without the partial defence of provocation many women would be convicted of murder. Therefore, despite the many valid criticisms levelled against provocation, the defence is relied upon by many women. At least until such time as self-defence is clearly seen to be available in practice for women defendants, provocation should not be abolished.
It is a serious consideration as it may be very dangerous to remove provocation, leaving only self-defence, particularly before self-defence is reformed. Given the increasing climate of law and order with calls for reinstatement of mandatory life sentences and the death penalty for crimes such as murder, women who kill to protect themselves from life threatening domestic violence could be convicted for murder and sentenced to life in prison or to death. Such a potential sacrifice of women who defend themselves against men's violence would not be acceptable.
4. The context of spousal homicide
Spousal homicides are the largest category of homicides in Australia 5. . Women are particularly vulnerable in spouse homicides (Wallace, 1986). As victims of homicide women are more likely to be killed by their male partner than by anyone else 6, this is not so for men who are more likely to be killed by other men. Many women are killed in an episode of violence similar to that which they have been subjected to over a period of time by their partner. Women are often killed when attempting to leave their partner. Wallace (1986) found that at least 48% of cases of men killing partners involved a history of violence against the woman. A Victorian study found that in a large number of cases where men killed partners their was evidence that the woman had sought help from the Criminal Justice System in relation to the violence prior to her death (Polk, 1994).
Women are far less likely to kill than men. However, a large proportion of homicides perpetrated by women involve a male partner and a history of abuse 7 . Both the situations of men killing women and women killing men are often the direct result of a history of domestic violence perpetrated by the man against the woman. Because men's violence against women is a primary factor in the vast majority of spousal homicides, it is crucial that MCCOC address the problem of domestic violence against women in formulating legal responses to fatal offences.
Self-defence is the most appropriate defence to a charge of murder for a woman who kills to protect her life or the lives of her children in a domestic violence context. Self-defence is about the rational act of a person who kills in order to save her (or his) own life.
The MCCOC discussion paper does not adequately address how self-defence might be reformed to accommodate cases in which women kill abusers, despite media coverage claiming to do so. Reporting on Senator Amanda Vanstone's launch of the MCCOC Fatal Offences discussion paper the `Australian’ stated that `the self-defence provision would be broadened, making it easier for victims of violence to retaliate and escape prosecution' (`Weekend Australian’, 27-28 June 1998). It is not at all clear how this will be achieved. Further consultation and reform must be undertaken to attain this objective.
5.1 Current problems with self-defence for women defendants
Theoretically the law of self-defence is broad enough to accommodate the actions of a woman who kills a violent partner to protect herself and/or her children from serious harm or death, however, in practice the defence is notoriously difficult for women in such situations to use. Studies carried out in Australia indicate that self-defence is not often used by women and that women have difficulties when attempting to use the defence. `Self-defence is rarely utilised by women and very rarely successful' (Tarrant, 1990; see also Leader-Elliot, 1993, Stubbs & Tolmie, 1994, Edwards, 1996). The lack of success in raising self-defence in Australia for battered women has meant that provocation has been the main focus of the courts (Sheehy, Stubbs & Tolmie, 1992:377).
Self-defence appears to be an international problem. Research in 1996 in England found no case in which a battered woman successfully pleaded self-defence (Noonan, 1996:198). The landmark case of Lavallee 8 in Canada in 1990 set a precedent for expert evidence to be permitted in trials of battered women who kill. Prior to the Lavallee decision there were virtually no cases of women successfully arguing self-defence. However, Canadian research of cases post Lavallee indicates that women are still not relying on self-defence, many pleading guilty to manslaughter with provocation (Sheehy, 1995). A US study found that the conviction rate for women was high because of the `failure of trial judges to apply the generally applicable standards of self-defence jurisprudence in cases where the defendants are battered women'(Maguigan, 1991).
Maguigan (1991) argues that self-defence is not working for women because of the way it is applied by trial judges. After analysing 239 appellate decisions on trials of women who killed in self-defence in the US, Maguigan concluded that it was not the structure nor the content of the law that was a problem for women attaining a fair trial but rather the application of the law by trial judges. Maguigan found anecdotal evidence from appellate cases that shows that many trial courts do not see battered women's cases as appropriate for the application of traditional self-defence jurisprudence and that appellate courts reverse decisions because of their failure to apply existing law (1991:434).
A recent NSW Law Reform Commission report acknowledged that women have difficulty in successfully pleading self-defence and that a review of the law of self-defence and it's ability to meet women's experiences is needed (1997:91). The `Women Who Kill in Self-defence’ campaign strongly supports this view.
5.2 Self-defence is gender biased
Violence is understood to be a male characteristic and the laws relating to self-defence are based on a male model of behaviour.
The doctrine of self-defence is based on the paradigm of a one-off encounter between two males of equal strength who are either strangers or acquantances (Brown, 1996). The recent case of Said Morgan shows how self-defence can be interpreted and used to justify male violence. Morgan, an ex-police officer, was acquitted of the premeditated shooting (6 times) of a suspected child molester (Herald Sun, August 2, 1997). However, very few women have been successful in using the defence. Heather Osland's case demonstrates that self-defence is biased in favour of men. Heather and David were both charged with murder for the killing of Frank Osland who physically, sexually and psychologically abused them for 13 years. David who struck the fatal blow was acquitted on the basis of self-defence while Heather was convicted for murder and sentenced to 14 and a half years in prison.
5.3 Proportionality and imminence
Self-defence laws were defined by reference to attacks threatening immediate physical injury (Leader-Elliot, 1993). Notions of self-defence are based on a single, isolated, imminent or ensuing attack (Tarrant, 1990). The courts place a great deal of importance on the existence of an immediate attack to which the defendant responds, and on the force used in response being in proportion to that of the attack.
Men's social conditioning and physical ability to fight enable violent and spontaneous responses which meet the legal notions of the immediacy (Scutt, 1983). Given men's greater strength and capacity to use violence, it is usually not feasible for a woman under threat of male violence to wait until danger is immediate and to retaliate with her hands. For this reason women often use weapons at times when the man is asleep or otherwise incapacitated. Under these conditions a resulting homicide will be described as pre-meditated at trial.
The problem areas with self-defence for women have been identified as the issues of proportionality and imminence. While the law no longer explicitly states that an immediate response is required or that the force used be in proportion to the threat, cases consistently focus on these issues in determining whether or not the defendants actions were `reasonable'. Because the notion of reasonableness has been judged in accordance with expected male behaviour, women are at a disadvantage. It is not reasonable to expect a woman to wait until a physical assault is underway to protect herself as it is likely that she will be killed doing so or experience grievous bodily harm.
As the laws are based on a male model of violence and generally deal with male behaviour the jury needs to be directed that proportionality and imminence may be a different matter for a woman in a battering situation than for a man in a bar room brawl. Judges should direct juries that women are not generally of equal size or strength nor as experienced in responding to violence as men. Judges also need to instruct juries that the law does not stipulate that the accused apprehend immediate danger when he or she acts. Juries must be directed to consider the cumulative effects of threats/violence (see proposals for directions to juries).
MCCOC (1992:66-68) sets out self defence as -
conduct is carried out by a person in self-defence if the person believed that the conduct was necessary to defend himself or herself or another person ..... and his or her conduct was a reasonable response in the circumstances as perceived by him or her.
The test as to necessity is subjective but the test as to proportion is objective. It requires the response to be objectively proportionate to the situation which the accused subjectively believed she or he faced (MCCOC, 1992:69).
In response to MCCOC's above recommendations Rathus states that `although this approach incorporates some subjectivity into any assessment of the actions of an accused person it leaves unclear the extent to which the full context in which an assault has occurred will be considered relevant. If women who have been abused over many years are to be afforded a proper opportunity to rely on the defence of self-defence, the law of self-defence must state explicitly that the whole history is relevant in assessing the belief of the accused.
Rathus recommends self-defence be formulated as:
A person is justified is using defence of himself or herself or of any other person, such for as he or she believes, on reasonable grounds, is necessary in the circumstances. In determining the reasonableness of the beliefs of the defendant the personal history of the defendant and the history of any relationship between the defendant and the person against whom force is used and the effects of that relationship upon the defendant are relevant (1995:136).
The campaign endorses the above recommendation.
5.5 The Battered Woman Syndrome
The Battered Woman Syndrome has been widely critiqued for pathologising/medicalising and reinforcing notions of women as passive victims. It has also been argued that the syndrome was constructed from the experiences of white, middle-class women and may misrepresent the experiences of other women (Stubbs and Tolmie, 1994). Presenting women as victims in this way can make it difficult for juries and judges to understand their use of lethal self-help. It has been a problem for women using the battered woman syndrome to assist with a defence of self-defence (or provocation) that they are judged according to how closely they fit the criteria of the syndrome. Women who do not fit the stereotype of passive, dependant and helpless may experience difficulties in court. Indigenous women and women from non-english speaking backgrounds may be further disadvantaged in this regard.
It is crucial that evidence regarding the history of abuse in the relationship be permitted in trials (raising self-defence and/or provocation). Scutt argues that the battered woman's reality is a more appropriate term than the battered woman syndrome. The Women Who Kill in Self-defence support this view.
5.6 Evidence of Domestic Violence
The campaign endorses the following recommendation of Rathus for rules relating to evidence of a history of domestic violence
In any criminal proceedings involving an assault offence where the defendant and the person assaulted are or have been in a domestic relationship in which abuse occurred, evidence of the nature, duration and extent of the abuse is relevant.
Expert evidence should be permitted to educate the jury about the reality of living with domestic violence. Where a batterer has killed his partner evidence of the history of his violence against her should also be admissible (see Rathus 1995:148).
Expert testimony concerning the nature and effect of domestic violence is relevant to assist the court in understanding the behaviour, beliefs or perceptions of the defendant. Domestic relationships about which such testimony should be admissible include persons who are or have been spouses or de facto partners, persons who are or have lived ordinarily in the same household as each other (other than as merely co-tenants or boarders), persons who are or have been relatives or persons who are or have had an intimate personal relationship with each other.
Expert evidence regarding domestic violence is required 9.:
- to dispel the myths and stereotypes inherent in understandings of a battered woman's experiences, and of the reasonableness of her actions
- because women's experiences and perspective in relation to self-defence may be different from the experience and perspective of men
- to direct courts attention to the contextual and individual factors which may have conditioned the battered women's perceptions.
- to explain socio-economic circumstances faced by many women - to explain inadequate police protection, nonexistent or overcrowded shelters, and the lack of other forms of social support - and explain how these circumstances may have shaped the defendant's belief that she had no alternative to self-help (Kazan, 1997).
A witness should be qualified to testify as an expert witness based upon his or her knowledge, skill, experience, training or education. Domestic violence workers and researchers should be identified as experts in addition to psychiatrists and psychologists.
5.9 The need for judges to give specific directions to juries in women's self-defence cases
The importance of judges instructions to juries in cases of battered women who kill in self-defence was made explicit by Dr Jocelynne Scutt on behalf of Heather Osland in her recent appeal to the High Court. It is also noted in the literature on the topic (see Maguigan, 1991 and Leader-Elliot, 1993 for example).
The rape law reforms in 1991, intended to erode some of the myths and stereotypes commonly held around rape, the concept of consent and assumptions about survivors of sexual assault provide a model for reform of fatal offences. This legislative reform provides a useful model for challenging some of the stereotypes and difficulties in understanding domestic violence, particularly in relation to women who kill in self-defence. 10
VLRC's Law Reform Package 1991 which was incorporated into legislation Crimes (Rape) Act 1991 (Vic), suggested retention of the offence of rape. Specifically, it was argued that the element of consent was to be retained but reforms, that would require judges and juries to understand to notion of consent, were proscribed. This provided a legislative statement that would attach meaning to consent. This made clear that there are vitiating circumstances under which a person cannot be seen to consent or freely agree such as if a woman is asleep, unconscious or intoxicated. Judicial directions requiring judges to give juries about the meanings they can attach to consent, for example, lack of physical injuries can not be used as an indicator of consent. Thus symbolically the law was challenging traditional understandings of consent and requiring that consent be thought of differently. The changes made to the Crimes (Rape) Act in Victoria were adopted by MCCOC in the sexual offences paper.
5.10 Proposals for judges directions to juries in women's self-defence cases
This submission proposes that specific directions be formulated which judges must give juries in trials of women who kill in self-defence. This is necessary to ensure that evidence of a history abuse be put to the jury in relation to the elements of the offence. The trial judge is under an obligation to ensure that the jury is properly instructed as to the uses to which such evidence may be put 11..
Judges should direct juries of the following 12 :
* Women are or can be `locked into' violent relationships through socialisation, economics, responsibility for children, lack of alternatives such as housing, independent income, broader family support, the opinions of neighbours or family friends.
* Women may live apparently `independent' lives, without any (or little) indication to the outside world of the violence occurring with the home, but this does not mean it does not happen, or is not happening.
* Women are frequently beaten `where it doesn't show', so that there may well be no outwardly visible signs, such as bruising, or wear sunglasses or makeup to conceal marks/bruises.
* Women are likely to be reticent about complaining to others, or telling others, and `select' those whom they tell'.
* If women do tell (any) others, they are likely to downplay or understate (rather than exaggerate) the violence to which they are being subjected.
* Where there is evidence of sexual assault it should also be put to the jury that if they believed rape had occurred they could fit that in to self-defence.
* Threats to kill if a woman leaves ought to be taken seriously given research which shows women are at increased risk of violence and death when attempting to leave.
* The jury needs to be directed that proportionality and imminence may be a different matter for a woman in a battering situation than for a man in a bar room brawl.
* In terms of proportionality it should be pointed out that women are generally not of equal size or strength, nor are they as experienced in physical fighting as men.
* Juries should be directed that the law does not stipulate that an accused apprehend immediate danger when she or he acts.
* The jury should consider the cumulative effects of a history of threats/violence.
* The judge should make it clear that the woman does not have to fit the criteria of the Battered Woman Syndrome in order to be acting in self-defence.
The above are examples only, further consultation and formulation is required. MCCOC should refer to the Canadian cases of Lavallee (1990) and Malott (1998) for further details regarding jury instructions. For example in Malott, the Court of Appeal of Ontario (1998) stated that the jury should be informed of the following:
1. Why an abused woman might remain in an abusive relationship 2. The nature and extent of the violence that may exist in a battering relationship
3. The accused's ability to perceive danger from her abuser
4. Whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm.
6. MCCOC’s Recommendation to abolish provocation
Provocation is a partial defence to murder, which reduces it to the lesser offence of manslaughter. The MCCOC discussion paper on fatal offences makes the following recommendation to abolish provocation -
`The partial defence of provocation should be abolished. Those considerations which currently provide a basis for the partial defence should be considered for their relevance to the determination of an appropriate sentence after conviction.'
In response to the recommendation of MCCOC the campaign considered the following arguments for and against abolishing provocation and determined that provocation should be retained with amendments.
7.1 Provocation is based on a male model of violence
Chief Justice Gleeson of the NSW court of criminal appeal aptly described the fundamental problem with provocation when he stated that a
`common criticism was that the law's concession to human frailty was very much, in its practical application, a concession to male frailty' (Chay, 1994, 72 A Crim R 1).
The defence of provocation was designed to accommodate male behaviour. An example of provocation often cited in legal texts is a situation in which a man kills his wife when he catches her in the act of `infidelity'. A man in this situation will be seen to have struck out in a `passionate, hot-blooded rage'. This example involves a number of assumptions about what is culturally understandable male behaviour. It is less likely that a situation in which a woman killed her unfaithful husband or his lover would be seen in the same light. In order for a defence of provocation to be successful in court, the threat of danger, the degree of force used and the element of provocation must all be considered and judged to be `reasonable'. However, there are different expectations about what is appropriate male and female behaviour.
The underlying premise of the defence of provocation is that anger denotes loss of control 13 . The provoked person is believed to have lost self-control in an uncontrollable rage. Such notions are consistent with patterns of male responses to emotional trauma, but not necessarily with female behaviour which may not be so immediate (LRCV, 1992:70).
There is a risk with provocation that `people who are excitable or have low levels of self-control will be given an unfair advantage over those who are placid or have a higher level of self-control' (LRCV, 1992:70). This is a problem because men are more likely to fit into this criteria. The focus in provocation cases on `hot-blooded killing', `loss of control', `sudden eruption of violence' `crime of passion', `uncontrollable rage' and so on is clearly biased in favour of men. It is often seen as understandable when men act in this way but it is seen to be aberrant when women do. This double standard needs to be addressed.
7.2 Currently provocation operates to excuse men's violence against women
Partial defences to murder operate as excuses for killing rather than justifications for killing (as in the situation of self-defence). The basis behind provocation is that the deceased person through some provocative act/behaviour/words provoked the accused person to kill them. There is a sense in which the deceased was therefore partially to blame for their death.
The defence of provocation reinforces the victimisation of women in the legal system by creating a legal excuse for aggressive behaviour against them (Ontario Women's Directorate, 1994). The operation of the provocation defence works to normalise and excuse men's violence against women in relationships, particularly separation assault and sexual jealousy. Provocation operates to provide a legitimation of men's anger and outrage at threats to their perceived honour.
As outlined earlier men's violence in domestic relationships is a serious social problem that results in the death of many women and children. The legal system and any law reform of crimes of violence must take this into account. The law of provocation should not be used to excuse men's violent control of women and should therefore be amended accordingly.
7.3 Self-defence is a more appropriate defence than provocation for women who kill violent partners
Another argument for abolishing provocation is that women are being found guilty of manslaughter on the basis of provocation when they should be entitled to a full acquittal for acting in self-defence.
`The defence (of provocation) does not distinguish those cases in which an accused kills to protect herself and her children, from the cases in which an accused kills because he is emotionally unable to deal with his partner's infidelity, her aspirations on his abilities as a lover, her decision to leave him, her attempts to defend herself from his violence or his unmarried daughter sexual activities. Extending an effective right of self-defence to women does make this distinction' (Sheehy, Stubbs & Tolmie, 1992:378).
Provocation is not an appropriate defence for women who kill to save themselves from life-threatening violence. Provocation presumes an emotional over reaction. Killing to protect yourself from life threatening violence is not an over reaction.
The campaign agrees with the above arguments which illustrate the problems and inadequacies with the partial defence of provocation. However, the campaign does not believe that abolition of provocation is the solution to those problems.
Provocation should be retained and amended for the following reasons.
8. Arguments for retaining provocation
8.1 Women use the defence of provocation
Research shows that women use the defence of provocation 14. more often that they use self-defence. It appears that women often use provocation because of the inadequacies and difficulties with the application of self-defence.
`Because of the specific circumstances which, until very recently, have been considered essential in self-defence, many women who killed violent partners sought to establish the so called `defence' of provocation to reduce the conviction from murder to manslaughter' (Rathus, 1995:102).
Research demonstrates that women use the defence of provocation (eg Bacon & Lansdowne, 1982:89 and Tarrant, 1990:148). A study of cases involving women who killed a violent spouse in Australia between 1979 and 1997 found that 65% of the cases raised provocation as a defence or referred to it in sentencing, while 45% of cases raised self-defence or referred to in sentencing comments (Bradfield, 1998). Women are increasingly using the defence of provocation (Rathus, 1995; Tarrant, 1990).
LRCV study found that women who used provocation in relation to killing a male were not convicted of murder these findings were confirmed by the NSW Judicial Commission study (1995). Both reports, however, fail to acknowledge that many of those cases in which women are found guilty of manslaughter on the basis of provocation are in fact cases in which the women killed in self-defence. It should be noted that the fact that women who kill to protect themselves from violence are using provocation successfully while men who kill women for leaving them or otherwise `provoking' them are slightly less successful is not evidence against the claim that the defence is operating in a gender biased fashion.
So while provocation is gender biased it is proving to be more successful for women defendants than self-defence. Provocation is working to ensure women who, due to the problems with self-defence, are not convicted of murder15 .
8.2 Self-defence is also biased against women
Stereotypes of women as passive and non-violent makes it difficult for courts to identify a woman who kills as acting in a rational and appropriate way. The same problems exist with notions of reasonableness based on male models of behaviour in self-defence as in provocation. The argument that provocation should be abolished because it was designed for men who kill could also be applied to self-defence. The campaign believes that rather than abolish the defences that they should be modified to ensure that women's experiences can be accommodated.
8.3 Abolition of provocation will simply mean shifting gender inequity from jury decision making to judge's decision making
The MCCOC recommends that `considerations which currently provide a basis for the partial defence should be considered for their relevance to the determination of an appropriate sentence after conviction.'
The MCCOC paper suggests that the difference in provoked and non-provoked killing will be reflected in differential sentencing by Judges, however, given that Heather Osland was recently sentenced to 14.5 years in prison by a Judge who accepted that she and her children had been subjected to abuse for 13 years, it is not at all clear how this will provide justice to women defendants.
Abolishing provocation would mean that decisions presently made by juries would be made by judges. Distinctions of degree, objective or subjective standards, gender bias and credibility would still need to be considered by the judge (LRCV, 1992:76). The LRCV report argued that these are precisely the sorts of difficult issues more suited to juries than judges. Judges are as susceptible, if not more so, to bias of all types.
Removing provocation will not remove problematic perceptions by judges in sentencing. It will only serve to shift existing problems from jury decision making to judges. Sentencing is fraught - there is a lack of guidelines and little informed debate and public scrutiny.
It seems that behind the recommendations in the discussion paper is a law and order agenda. Abolishing partial defences to murder will mean more people will be likely to be convicted for murder and given longer sentences.
The fact that the maximum sentence for manslaughter is 15 years and for murder it is life imprisonment will mean an increase in sentences. Minimum sentences for murder currently average 14 years and there are no remissions for these (LRCV, 1992:77). Given calls for mandatory life sentences and reinstatement of the death penalty for murder in Australia, the recommendation to abolish provocation is particularly dangerous.
8.5 Recent reform of the partial defence of provocation has improved its application to women defendants
In 1982 legislation was changed in NSW to accommodate women who kill violent partners 16.
The NSW legislation is as follows:
an act or omission causing death is an act done or omitted under provocation where-
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or effecting the accused; and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,
whether that conduct of the deceased occurred immediately before the act or omission causing death or at any other time.
Removal of Suddenness:The NSW changes have meant a shift in emphasis from the time immediately prior to the killing to a broader period of time 17. The shift away from the suddenness requirement has meant that provocation can be considered in terms of the entire relationship between the offender and the deceased (Sheehy, Stubbs and Tolmie, 1992).
9. Proposals for retention and reform of provocation
The LRCV (1992) report recommended the retention of provocation. Submissions to the commission on the provocation defence overwhelmingly favoured its retention. These submissions came from diverse groups including women's groups, victim's groups, defence and prosecution lawyers, the police and academics.
Rathus agreed with the LRCV's view that the partial defence of provocation should be retained' (1995:124). Rathus proposed the following reform of provocation;
A person acts under provocation where:
(a) at the time of the commission of the offence the defendant has suffered a loss of self-control as the result of the conduct of another person; and
(b) the loss of self-control is reasonable taking into account the personal history of the defendant and the history of any relationship between the defendant and the person assaulted and the effects of that relationship upon the defendant.The campaign endorses the above recommendation.
It is the view of the campaign that the provocation defence should not be permitted in cases where the assault was in response to separation in a relationship or sexual jealousy. There should be no availability of provocation defence when the death is the result of men's attempts to control and punish women. Legislative reform should be undertaken for this purpose. Provocation similarly should not be available in situations which have been referred to as `homosexual advance'.
Legislative reform of the type adopted by the rape law reform outlined earlier should be considered in modelling clauses that state what can and can not constitute provocation. A history of abuse should be seen to constitute provocation. Provocation should be available to women who are subjected to psychological and other forms of abuse in relationships.
This submission argues that women who kill partners to protect themselves or their children from life threatening violence should be fully entitled to acquittal on the grounds of self-defence. Currently self-defence does not work for women. Self-defence operates, in practice, in a gender biased fashion which creates a situation where women are forced to rely on the inadequate partial defence of provocation. In other words, provocation is being used as a half-way defence for women who kill abusers at the expense of the more appropriate, full defence of self-defence. Women who kill in self-defence should not be found guilty of manslaughter because of inadequacies in the legal system which render it a safer option. The laws of self-defence should therefore be applied in such a way as to ensure that self-defence is available to women. Self-defence needs to be reformulated and/or processes set in place that ensure its availability to women. Until that time however, it is not a viable option to abolish provocation.
Whether or not MCCOC determines to abolish provocation, it is necessary to consider changes to self-defence laws which will accommodate the reality of women who kill. Specifically judges should be required to give directions to juries about the importance and relevance of evidence of domestic violence in cases of women who kill in this context.
11. A note on time restrictions in preparing submission
The Model Criminal Code Officer's Committee (MCCOC) has been preparing the discussion paper on fatal offences for over a year. The `Women Who Kill in Self-defence’ campaign was advised by MCCOC prior to the release of the discussion paper, that there would be 3-5 months to prepare a response. However, the report was released with little over four weeks time permitted for submission of responses. While a three week extension to the 20th of August has been granted by MCCOC, the very tight time line has meant that consultation and preparation have been restricted. Consequently there is very little time for individuals and organisations to consider and endorse the campaign’s submission. With limitations on time and resources this submission attempts to analyse the research and complex issues relevant to fatal offences as they effect women who kill in self-defence. In preparing this submission the campaign held several meetings and consulted with legal professionals and academics across Australia.
Take this link to the endorsement form
5. Spousal homicide refers to the killing of wife/husband, defacto, partner or ex-partner.
6. Research by the Women's Coalition Against Family Violence found that between 30 and 40 women and children are killed by their husbands, defactos, boyfriends, ex-partners, fathers and sons, each year in Victoria (Blood on Whose Hands? 1994:1).
7. For example a NSW study found that most of the women who killed their sexual partners had been the victims of repeatedly violent behaviour. `Female offenders were faced with physical abuse, threats or taunting immediately prior to committing the offence' (JCNSW 1995:46).
8. R v Lavallee (1990) 55 C.C.C
9. Most of the following is taken from the appellant's submission to the High Court prepared by Jocelynne Scutt, Anne Thaker and Fiona Phillips of behalf of Heather Osland (April, 1998).
10. This approach is also significant for considerations of reform of the partial defence of provocation.
11. Appellant's submission to the High Court prepared by Jocelynne Scutt, Anne Thaker and Fiona Phillips of behalf of Heather Osland (April, 1998).
12. directions presented in the High Court appeal of Heather Osland by Jocelynne Scutt, Anne Thacker and Fiona Phillips.
13. It is important to note that anger can be a way of gaining control of a woman by instilling fear in her (Ontario Women's Directorate, 1994).
14. It should be noted that most provocation cases involve men killing men. The LRCV study showed that two-thirds of the prosecution cases involved a male killing another male (1992:75).
15. It Should be noted that provocation may also be used by women who kill in situations that do not fit into self-defence such as a woman who kills her ex-husband when she discovers that he has been sexually abusing their children.
16. In contrasting English law to the provocation defence as it stands in NSW, Kennedy states that the law `has developed in a way that is attuned to women's lives' (1992:202).
17. The LRCV also recommended that `suddenness of reaction to provocation should not be a prerequisite to the provocation partial defence. The provocation should be seen and assessed in the total context of the situation.' (87).
Bacon, W & Lansdowne, R (1982) Women Who Kill Husbands: The battered Wife on Trial in O'Donnell, C & Craney, J (eds) Family Violence in Australia, Longman Cheshire: Sydney.
Barnes, G (1998) Private Violence, Gendered Justice, Honours thesis, Southern Cross University.
Bradfield, R (1998) Is Near Enough Good Enough? Why Isn't Self-defence Appropriate for the Battered Woman, Psychiatry, Psychology and Law, 5, 1: 71-85.
Brown, H (1996) Beyond Battered Woman Syndrome: Reforming Self-Defence to Seek Justice for Women Who Kill, Masters Thesis, Monash University.
Easteal, P (1992) Battered Woman Syndrome: What is `Reasonable'? Alternative Law Journal 17, 5:220-223.
Edwards, S (1996) Sex and Gender in the Legal Process, Blackstone Press: London.
Greene, J (1989) A Provocation Defence for Battered Women Who Kill? Adelaide Law Review 12:143-163.
Howe, A (1997) More Folk Provoke Their Own Demise, Sydney Law Review 19: 336-365.
Judicial Commission of NSW (1995) Sentenced Homicides in NSW 1990-1993.
Kazan, P (1997) Reasonableness, Gender Difference and Self-Defence, Manitoba Law Journal 24, 3:549-575.
Kennedy, H (1992) Eve Was Framed, Chatto & Windus: London.
Law Reform Commission of Victoria (1991)
Leader-Elliot, I (1993) Battered But Not Beaten: Women Who Kill In Self-Defence, The Sydney Law Review 15, 4:403-460.
Maguigan, H (1991) Battered Women and Self-Defence: Myths and Misconceptions in Current Reform Proposals, University of Pennsylvania Law Review 140, 2: 379-486.
NSW Law Reform Commission (1997) Partial Defences to Murder: Provocation and Infanticide.
Noonan, S (1996) Battered Woman Syndrome: Shifting the Parameters of Criminal Defences (or (re)inscribing the Familiar?) in Bottomely, A (ed) Feminist Perspectives on the Foundational Subject of Law, Cavendish: London.
Polk, K (1994) When Men Kill, Cambridge University Press.
Rathus, Z (1995) Rougher Than Usual Handling: Women and the Criminal Justice System, 2nd Edition, The Women's Legal Service: Brisbane.
Scutt, J (1983) Even in the Best of Homes, McCulloch Publishing.
Sheehy, E (1994) Battered Woman Syndrome: Developments in Canadian Law After R v Lavallee in Stubbs, J (ed) Women, Male Violence and the Law.Sheehy, E (1994) Reforming the Defence of Provocation, Ontario Women's Directorate, unpublished report.
Sheehy, E (1995) What Would a Women's Law of Self-Defence Look Like?, Ontario Women's Directorate, unpublished report.
Sheehy, E (1995) Battered Women, Self-Defence and Law Reform.
Sheehy, E & Stubbs, J & Tolmie, J (1992) Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations, Criminal Law Journal 16:369-395.
Stubbs, J & Tolmie, J (1994) Battered Woman Syndrome in Australia: A Challenge to Gender Bias in the Law? in Stubbs, J (ed) Women, Male Violence and the Law.
Tarrant, S (1990) Provocation and Self-Defence: A Feminist Perspective, Legal Services Bulletin 15, 4: 147-150.
Tarrant, S (1990) Something is Pushing Them to the Side of Their Own Lives, Western Australian Law Review 20: 573-606.
Wallace, A (1986) Homicide: The Social Reality, NSW Bureau of Crime Statistics and Research: Sydney.
Women's Coalition Against Family Violence (1994) Blood on Whose Hands? Victorian Women's Trust.
HOME * MENU
National Women's Justice Coalition Inc.
ABN 34635338231
GPO Box 3148 Canberra ACT 2601 Australia
ph: 02 62472075 fax: 02 62573070
general email: nwjc@nwjc.org.au
web: www.nwjc.org.au