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According to merit?: Self-defence – a 21st century perspective

Every Issue

Cite as: (2003) 77(10) LIJ, p.97

Women who suffer at the hands of brutal partners deserve protection too.

I was recently asked to define self-defence. It was in the context of a regular training session with my Kung Fu instructor. My classmates gathered around to hear what words of wisdom would emanate from my scholarly mouth. I have to admit that I was not very eloquent; phrases such as “imminent threat”, “reasonable apprehension” and “reasonable force” were the best I could come up with. Despite using such correct jargon my classmates were none the wiser. I realised too that the definition was not very practical.

My instructor later told me that one definition he had been given by another lawyer was “fight for your life and then we’ll work it out”.

The difficulty is not in finding a definition of self-defence,[1] the problem is that the definition is inflexible. It deals with those instances that are black and white and makes no allowances for grey.

The most obvious example of inflexibility is in relation to a homicide that takes place in the context of domestic violence – generally where a woman kills her partner after many years of abuse.

In a study by Kenneth Polk,[2] homicides in the context of sexual intimacy make up 26.6 per cent (the single largest category) of total homicides.

Self-defence is usually argued for women in the context of “battered woman syndrome”. This is where there is a “cycle of violence” that involves the building of tension in the relationship, an acute battering incident and then a loving contrition.[3]

Self-defence has a subjective and an objective test. The subjective test deals with whether the accused reasonably believed that she was at risk of imminent harm or serious bodily injury. The objective test is whether in all the circumstances that belief was reasonable.[4]

So what constitutes imminent harm? Generally, it is an immediate threat that requires an immediate response. In domestic violence situations delay is the problem. A woman may wait until her partner is asleep before she believes it is safe to “defend herself”.

The difficulty also lies in getting jurors to understand why women subjected to violence or threats of violence do not just leave. Here the objective test often fails women. After all, how can it be reasonable for a woman to kill her husband while he lay sleeping if you start with the premise that women should just leave when subjected to domestic violence?

A woman who has endured violence by her partner is generally not in a position to retaliate when the threat is made. Retaliating may result in angering her partner, prompting him to see his threat to its conclusion. Further, she may believe that if she runs away he will find her and kill her. Therefore, she may truly believe that her only option is to kill him when he is not in a position to hurt her, for example, when he is asleep.

Some headway has been made over the years to help juries understand the psyche of the battered woman. In the case of R v Secretary,[5] the accused’s husband came home after a night of drinking with the boys, assaulted the accused and then told her he was going to kill her. He then went to sleep. The accused killed her husband while he lay sleeping. The court held that the threat to kill was a continuing threat that was operating at the time the accused killed her husband. She had been subjected to years of physical and emotional abuse. She was acquitted.

There is currently no special defence of battered woman syndrome.[6] Expert evidence on what constitutes such a syndrome is permissible insofar as it informs the jury of the psychological aspects of battered woman syndrome.[7] The expert evidence puts a juror in a better position to assess the reasonableness of the accused’s actions.

What is needed is a total overhaul of the law of self-defence.

New South Wales has the Crimes Amendment (Self-Defence) Act 2001, which goes some way to clarifying the circumstances in which self-defence may be used. However, it does not recognise or refer to the special circumstances in which a battered woman finds herself.

There must be a defence open to a woman who has been subjected to great violence and degradation. What is needed is a courageous legislature to introduce comprehensive reforms dealing with this issue.

It is time that we as a society stopped ignoring the cries of those women who suffer at the hands of brutal partners and offer them the protection afforded by the law.

SUSAN BORG is a barrister, a Sessional Member of the Victorian Civil and Administrative Tribunal, a part-time Member of the Migration Review Tribunal and legal member of the Psychologists Registration Board of Victoria.

[1] The test for self-defence is defined in Zecevic v DPP (Vic) (1987) 162 CLR 645 at 661 as, “ ... whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did”.

[2] Kenneth Polk, “When men kill: scenarios of masculine violence” (1994), and cited in the Victorian Law Reform Commission issues paper, Defences to Homicide, 2002 at pp14 and 15.

[3] As cited in Defences to Homicide, note 2 above, at p56, footnote 154.

[4] Note 1 above.

[5] (1996) 86 A Crim R 119; see note 3 above, p53.

[6] Osland v The Queen (1998) 197 CLR 316 at 377-378.

[7] Note 6 above.


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