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VLRC : Getting away with murder

Every Issue

Cite as: (2003) 77(7) LIJ, p.89

The key defences to homicide, including self-defence, provocation and infanticide, are under examination.

The Victorian Law Reform Commission (VLRC) is continuing work on a reference on defences and partial excuses to homicide.

In June 2002, the VLRC completed the first stage of this project and published an issues paper, Defences to Homicide, outlining the current law, identifying the areas the VLRC will focus on in its research, and raising some of the issues to be investigated. In addition, an occasional paper, Who Kills Whom and Why: Looking Beyond Legal Categories, by Associate Professor Jenny Morgan, summarising the Australian data on homicide in greater detail, was published.

This month a discussion paper will be published, providing a detailed overview of each of the key defences: provocation, self-defence, infanticide, and those defences available to people with “impaired mental functioning”, namely mental impairment, diminished responsibility and automatism. In addition, the preliminary results of an empirical study of homicide prosecutions between 1 July 1997 and 30 June 2001 are also presented.

The empirical study looks at prosecutions involving murder, manslaughter or infanticide which proceeded beyond the committal stage. The study has drawn primarily on case files from the Victorian Office of Public Prosecutions which provided details of any psychological assessments of the accused; the prosecution process, including charges and pleas; any defences raised and whether they were successful. This information was combined with data from the Australian Institute of Criminology’s National Homicide Monitoring Program files, which included demographic information about the accused and the deceased. The results of the study allowed the VLRC to make observations about the current operation of defences in Victoria and to discuss possible options for reform.

Before 1975, if a person was found guilty of murder, the death penalty was mandatory in Victoria. Given the severity of this penalty, a series of defences to the charge of murder developed, thus reducing the charge from murder to manslaughter. The defence of provocation is often seen as the most controversial of these and it is also one of the most frequently used defences (after lack of intention). The VLRC’s study indicates that the defence of provocation is most commonly raised by men accused of homicide in the context of sexual intimacy.

Provocation is one of the most strongly critiqued defences in the criminal law and a number of arguments have been raised in support of its abolition. Such criticisms include that it is gender biased and/or homophobic, that the “ordinary person” test is flawed, that the defence is conceptually uncertain and lacking in clarity, and that it is anachronistic and open to easy fabrication. Each of these arguments is examined in detail in the discussion paper, together with a series of case studies drawn from the empirical study. There are also a number of arguments supporting the retention of the defence. The discussion paper examines each argument for retention and reform of the defence, including amending the definition, limiting the circumstances in which it is available, requiring an explicit jury assessment of culpability, providing an equality analysis and reforms to evidentiary requirements.

According to the VLRC’s study, the defence of self-defence is most commonly and successfully used by men. This reflects its historical development in the context of fights between men, such as bar-room brawls or one-off duels. Unlike provocation, there is little criticism of the rationale behind self-defence. It is argued, however, that the defence is structured in such a way as to exclude women from its scope. The view of self-defence as involving a single, isolated attack between two men of equal strength, who are either strangers or acquaintances, is seen to be gender biased. In particular, it is argued that women who kill in response to domestic violence should not be excluded from the scope of self-defence if they reasonably believed their actions were necessary in the circumstances. The discussion paper outlines the issues involved in the arguments concerning the gender bias of the defence and the development of the battered woman syndrome. It outlines a series of options for reform to take account of these criticisms, including evidentiary reforms, clarification of the current law, amendment of the legal test, introduction of a completely new, or partial, defence and procedural reforms.

Another defence examined in the discussion paper is infanticide. This defence is rarely used. In Victoria, the defence of infanticide is only available to the natural mother of the child and then only to mothers who were suffering some mental disturbance as a result of giving birth or lactation. The defence has attracted criticism from medical professionals, academics and feminists alike and the medical foundations for the defence are now debatable. The notion of female violence being explained and justified on the basis of their biology is extremely problematic given that research indicates that there are a range of factors which can coincide to increase the risk of a child being killed by its mother, in particular, social and economic factors, rather than mental health. The discussion paper examines these factors and the defence in relation to the social contexts in which child killing occurs in order to examine the disjunction between the defence and the social reality and to examine some of the issues which need to be considered when reforming the defence.

Given the problems with the partial defences to homicide, the discussion paper also considers a possible new combined defence covering all the defences of infanticide, diminished responsibility and provocation.

Contributed by the VICTORIAN LAW REFORM COMMISSION, tel 8619 8619. For copies of the discussion paper, or further information about the reference, see the VLRC’s website


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