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VLRC: Excuses, excuses

Every Issue

Cite as: (2003) 77(10) LIJ, p.96

The VLRC seeks input on gender bias and on “impaired mental functioning” in defences to homicide.

On 21 September 2001, the Victorian Law Reform Commission (VLRC) received a reference from Attorney-General Rob Hulls to examine the law relating to defences and partial excuses to homicide. Under the terms of reference this examination is to include consideration of the appropriateness of reforming, narrowing or extending existing defences or partial excuses to homicide including self-defence, provocation and diminished responsibility. As part of its review, the VLRC has also been asked to consider options for procedural reform and also whether plea and sentencing practices need to be made more flexible.


In the first stage of the reference the VLRC released an issues paper. The issues paper outlined the current law, identified the areas that would be the focus of the reference and raised some of the issues that the VLRC would be investigating throughout the course of the project. The VLRC also published an occasional paper that summarised available Australian data on homicide authored by Jenny Morgan – Who Kills Whom and Why: Looking beyond legal categories. The occasional paper argued that social problems, rather than legal categories, best inform our thinking about law reform in this area.

A detailed options paper has now been prepared by the VLRC and has been released for comment. The paper further explores the historical development of particular defences, the legal and social context in which defences and partial excuses to homicide are raised in Victoria and their current operation, together with a number of options for reform. Defences and partial excuses considered include provocation, self-defence, and infanticide as well as defences open to accused with “impaired mental functioning” such as mental impairment, diminished responsibility and automatism.

Possible evidentiary and procedural changes to improve the operation of existing defences are also discussed.

Gender bias in favour of males

The findings of research conducted by the VLRC into homicide prosecutions in Victoria proceeding beyond the committal stage over the period 1 July 1997 and 30 June 2001 have been referred to extensively in the paper. This research has assisted the VLRC to develop a richer understanding of the extent to which men and women who kill rely on particular defences, the comparative success of men and women in relying on these defences, and the circumstances in which these defences are successfully raised in Victoria.

The research found that not only do male accused rely on self-defence and provocation far more frequently than women, but also that men are more successful in raising them as defences. These findings provide strong support for the conclusion that the circumstances in which women kill are often not conducive to women successfully raising these defences, and that the current operation of these defences is therefore gender biased.

For instance, of the 27 cases in which provocation was argued at trial, eight of the 24 male accused who raised the defence were found guilty of manslaughter, while all three female accused who raised provocation were convicted of murder.

On the basis of these findings it seems that women often find it difficult to meet the current elements of the test, and if they do raise provocation are unlikely to be successful. In the context of sexual intimacy – the most common context in which men and women killed, and in which provocation was raised in the cases considered — jealousy and a need for control were the primary motivating factors for the majority of men, while many women killed in response to alleged prior violence. However, while a third of men who killed in this context and raised provocation were convicted of manslaughter, neither of the women who killed in this context was successful in raising this defence. This suggests jealousy and anger, sparking a sudden loss of control, are more likely to support a finding of provocation, than a prior history of violence.

“Impaired mental functioning”

A number of possible reforms to self-defence and provocation to address the current gender bias in the operation of these defences are considered in the options paper and will form an important focus of the VLRC’s consultations on the paper.

The options paper also explores the possible introduction of a partial defence of diminished responsibility for accused with “impaired mental functioning”.

While this defence is not currently available in Victoria, it has been introduced in a number of other Australian jurisdictions. The VLRC’s homicide prosecutions study found that in a significant number of cases the person charged with homicide was suffering from a mental condition that did not amount to a mental illness sufficient to form the basis of a mental impairment defence. The introduction of diminished responsibility in Victoria would provide these accused with an alternative defence.


Submissions on the issues raised in the options papers are now invited. The deadline for submissions is 28 November 2003. Submissions can be made by mail, phone, and fax or in person. Written submissions can also be emailed to the VLRC at

The VLRC will be using the options paper as a basis for more detailed consultations. A final report with recommendations will be released by the VLRC in 2004.

Contributed by the Victorian Law Reform Commission, tel 8619 8619. For copies of the options paper, or further information about the reference, see the VLRC’s website


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