The authors of the article claim that the new offense of defensive homicide is being misused on the basis that it has been used almost exclusively by men who kill other men, and not for those for whom it was intended. Defensive homicide was introduced as a ‘safety net’ for women who kill their violent abusers once provocation was abolished. When making their recommendation to reintroduce excessive self-defense, which later become defensive homicide, the Victorian Law Reform Commission (VLRC) were of the view that women who kill a violent partner in a context where there is a long history of domestic violence, but where there is no immediate threat, are deserving of mitigation but may risk being inappropriately convicted of murder and so it wanted a halfway house for these women.
The article refers to how 17 of the 19 convictions for defensive homicide have been in relation to men who have killed other men, and only two have involved women defendants.
What the article neglects to mention is that 13 of the convictions involving men who killed men were the result of a decision by the Office of Public Prosecutions to accept a guilty plea. There has considerable public criticism of the OPP’s decision to accept a guilty plea in many of these cases although the arguments have not been put as strongly as those that were made over the decision in Middendorp.
What the authors of the Herald Sun article also fail to mention is that this development is not all that surprising if you consider that it is men, rather than women, who are overwhelmingly the perpetrators of homicide. So you wouldn’t expect to the numbers of women convicted of defensive homicide to be much higher than this.
Also, the 2005 amendments to the law of homicide in Victoria included changes to the law of self-defense that were designed to make it easier for women who kill in the context of domestic violence to avail themselves of the full defense of self-defense and be acquitted. Since the Crimes (Homicide) Act 2005 (Vic) came into effect, the decisions not to proceed to trial in two cases involving women defendants who killed a male victim after a prolonged history of family violence can be cautiously interpreted as a sign that the new laws were working. Other than the cases of Eileen Creamer, who was found guilty of defensive homicide at trial, and Karen Black, who pleaded guilty to defensive homicide, the numbers of women who have killed in this context and proceeded to trial are very small. Until we have data on the outcomes reached in a greater number of cases, we can’t fully determine whether or not the new laws are working for these women defendants at this stage.
Provocation was abolished because the Victorian legislature believed it was outdated and no longer reflected the norms of modern society. Specifically, it was no longer appropriate for the criminal law to have a defense available that for all intents and purposes condoned male violence against women and blamed the female victim for her own fate.
Public criticism over the Middendorp case raises concerns about a continuation of ‘excuses’ for male violence against women and the problem of victim-blame. Commentators alleged that although provocation has gone, defensive homicide is becoming its replacement.
However, if you look at the Supreme Court cases involving men who have killed their current or ex-partners since the abolition of provocation and the Crimes (Homicide) Act 2005 came into effect, the majority of these male killers have been sentenced on the basis of murder: 27 male defendants have been charged with murder for killing an intimate partner or ex-partner. Of these, 21 have been sentenced on the basis of murder; 12 were the result of a plea of guilty to murder and another nine were convicted of murder after a trial. There have only been six cases involving men who killed their intimate partner or ex-partner who have had their culpability reduced to manslaughter after a trial. The case of Middendorp is the only case involving a man who killed his ex-partner and who has been convicted of the offense of defensive homicide after a trial.
The authors of the Herald Sun article cite an article co-authored by Monash criminologists, Fitz-Gibbon and Pickering, that referred to a study by Fitz-Gibbon that involved interviews with Prosecutors who described judicial directions to jurors on defensive homicide as being ‘mind boggling’ and ‘unbelievably convoluted’.
In a radio interview on 3AW with Defence Counsel Rob Starry the next day, Rob said that it may be that changes need to be made in relation to the way that jury directions are written in criminal trials where the jury is to be directed on murder, defensive homicide and manslaughter by an unlawful and dangerous act. If this is where the confusion stems from, then this is different to saying that the offense of defensive homicide is being ‘abused’.
My view is that I am not convinced that we are in a position yet to determine whether or not further changes to the law of homicide in Victoria are necessary. In September 2010, I was one of the authors of a submission to the Department of Justice’s Review of the Offence of Defensive Homicide made with the Dr Debbie Kirkwood from the Domestic Violence Resource Centre Victoria (DVRCV) and Sarah Capper from the Victorian Women’s Trust (VWT). In our submission we cautiously recommended that the offense of defensive homicide be retained “on the provision that homicide trials be monitored closely over the next 24 months to give stakeholders an opportunity to review more cases in order to determine whether the rationales for the 2005 reforms are being realized”. Our position is that we need to analyze a greater number of Supreme Court cases. We are still waiting for Attorney-General Robert Clark to carry out a full review of the new laws with appropriate community consultation.
These views are canvassed in the following publications:
Chapter 4 of my upcoming book, Sex, Culpability and the Defence of Provocation, due to be published by Routledge in July 2011.
Tyson, D. (2011) 'Victoria's New Homicide Laws: Provocative Reforms or More Women "Asking For It"?', Current Issues in Criminal Justice, Vol 23(2), pp. 203-235.
Tyson, D., Capper, S., and Kirkwood, D. (2010) Review of the Offence of Defensive Homicide, submitted to the Department of Justice, Victoria, on behalf of the Victorian Women's Trust (VWT), Domestic Violence Resource Centre Victoria (DVRCV), Domestic Violence Victoria (DV Vic) Inc., the Federation of Community Legal Centres (FCLC), Koorie Women Mean Business (KWMB), and Women's Health Victoria (WHV), 13 September 2010.