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Intimate partner homicides

Intimate partner homicides

By Danielle Tyson, Debbie Kirkwood, Mandy McKenzie and Bronwyn Naylor

Marriage 

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Following a lengthy process of consultation into homicide prosecutions by the Victorian Law Reform Commission (VLRC) in 2004, a raft of legislative changes were implemented to the Crimes Act 1958 (Vic) through the Crimes (Homicide) Act 2005 (Vic) including:

  • repealing the controversial partial defence of provocation
  • clarifying the requirements of self-defence to better accommodate the experiences of abused women who kill in apparently “non-confrontational” circumstances1
  • recognising excessive self-defence through the creation of a new offence of defensive homicide,2 which was subsequently abolished in 2014 through the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic)
  • clarifying the laws of evidence so that relevant evidence about family violence can be admitted in a homicide trial.3

The Domestic Violence Resource Centre Victoria (DVRCV) and Monash University have recently examined prosecutions of men who have killed in the context of an intimate relationship since the implementation of the reforms in 2005.4 The findings were published in a co-authored discussion paper called “Out of Character? Legal Responses to Intimate Partner Homicides by Men in Victoria 2005–2014”.5 The key findings are examined below.

Homicide: a gendered phenomenon

Little has changed in the last decade in Victoria in terms of the gendered nature of intimate partner homicides. As reported in the earlier study by the VLRC, “Defences to homicide: options paper” (2003), intimate partner homicide is predominantly perpetrated by men. In our study, 80 per cent (51 of the 64 offenders) were male, and most killed a female partner or ex-partner.

Consistent with international research, in the majority of homicides committed by men, anger, jealousy and a desire to control the female partner or ex-partner appear to be motivating factors.

Family violence

In more than half of the homicides committed by men (27 out of 51), there was evidence that the accused had previously been violent or abusive towards his partner or ex-partner. In many cases there was evidence of physical violence, while in some cases the offender had no apparent history of using physical violence but had been controlling, obsessively jealous, aggressive or had made threats to kill his partner.

Separation

Separation is now widely recognised as a dangerous time for women with controlling partners. Our findings bear out the relevance of separation in intimate partner homicides by men. In 57 per cent of cases that involved male offenders (29 cases) the homicide was preceded by the offender’s partner attempting to end the relationship.

Prosecution outcomes

Seventy-one per cent of men (36 men in total) were convicted of murder, with almost two-thirds pleading guilty. The median total effective sentence for these men was 18.75 years, with a non-parole period of 15 years. The average principal sentence was 18 years and six months, slightly shorter than the average sentence for all men in Victoria convicted of murder between 2007 and 2012.6

Thirteen men were convicted of manslaughter, with seven pleading guilty. The median sentence was approximately 9.5 years with a non-parole period of seven years.

Based on the limited comparisons we can make with the VLRC’s earlier study of homicides (between 1997-2001), it appears that since the abolition of the partial defence of provocation in 2005, there has been a small increase in murder convictions and a reduction in manslaughter convictions for intimate partner homicides.7

Provocation

It has been a decade since the abolition of the partial defence of provocation in Victoria, but it can still be raised as a mitigating factor in the sentencing process. In our study, 18 men told police that the killing was a response to their partner’s behaviour (for example, actual or imagined infidelity, attempting to end the relationship, rejecting his attempt to be affectionate or arguing with him). However, provocation was rarely raised or explicitly accepted as a mitigating factor in sentencing. In cases where provocation was raised, encouragingly, some judges commented that separation and infidelity was not conduct that could justify homicide.

However, provocation-type arguments continued to be a theme in defence narratives in some plea hearings and trials we analysed. In at least half the cases in our study, defence counsel relied on the expert opinion of a forensic psychologist or psychiatrist to support the contention that the offender’s mental condition at the time of the homicide should be accepted as mitigating the sentence imposed. Often it was argued that the offender’s mental condition was affected by a cumulative build-up of stress due to the behaviour of the man’s partner or ex-partner. Thus, the narratives that may lead to victim blaming continue to be present.

Although most judges rejected any implication that the deceased women’s actions had been “provocative” or otherwise unreasonable, they tended to accept that this behaviour had caused the offender great emotional distress and exacerbated his fragile mental state, which resulted in him losing control (this was accepted by the judge in the case of R v Felicite below).

Consistent with national and international research, the study demonstrates that intimate partner homicides are predominantly perpetrated by men, often after a history of family violence. Australia’s national framework for the prevention of violence against women identifies that the criminal justice system can play a key role in addressing gender-based attitudes that are the “key drivers” of family violence and homicides.8 However, in prosecuting individual offenders, the focus tends to be on the offender’s mental health problems and difficulties coping with separation, while their previous abusive behaviour tends to fade from view. While it is encouraging that some judges commented on the importance of general deterrence of domestic killings (as highlighted by the judge in the case of R v Felicite), few commented on the gendered attitudes that contribute to these homicides.

Family violence evidence provisions

The 2005 family violence evidence provisions9 provided for expert social framework evidence regarding the nature and dynamics of family violence to be admitted in cases of homicide. In its review of defences to homicide, the VLRC was of the view that where there is evidence of prior family violence by the accused, expert evidence could address common misconceptions about family violence and could be introduced by the prosecution “to challenge claims by the defendant that the harm caused was unintentional or due to a loss of control”.10 The VLRC also proposed that this evidence could be useful in sentencing “to make sense of what has occurred when deciding what sentence to impose”.11 In the study, although evidence of family violence was often admitted in trials as “relationship evidence”, in none of the trials or plea hearings did the prosecution seek to admit expert social framework evidence.

Recognition of family violence

Experts now know that non-physical forms of family violence such as controlling behaviour, obsessive jealousy and threats to kill or suicide can be key warning signs for a high risk of serious injury or death. These “red flag” risk factors are identified in Victoria’s widely-used risk assessment and risk management framework. The need for a wider range of professionals who come into contact with victims and perpetrators of family violence to understand these key risk factors was one of the recommendations of the Royal Commission into Family Violence 2016. However, in our research on the prosecution and sentencing process, these factors were not always seen by legal professionals to be relevant to the explanations for the homicide, and the killing was often described as spontaneous and “out of character”.

The complex nature and dynamics of family violence were not always well understood in legal discussions. Rather than being a “loss of control”, family violence is now understood to be a pattern of deliberate tactics used to control, coerce and harm a partner. However, in the homicide prosecutions examined in the study, the focus was on acts of physical violence, while controlling behaviour, threats and other forms of family violence were rarely perceived to be serious. Relationships were often described as “volatile” or mutually abusive, despite the fact that the offender was the primary aggressor. Family violence was often discussed as a difficulty in managing anger, or as being primarily caused by substance abuse or mental illness. R v Felicite illustrates this point.

On the afternoon of 30 August 2009, Ron Felicite killed his wife Juliette by stabbing her multiple times in the neck. The killing occurred in the kitchen of their home and at least part of the attack was witnessed by their four year old son. Felicite pleaded guilty to murder and was sentenced to 19 years’ imprisonment with a minimum non-parole period of 16 years.12

In 2007, two years prior to the killing, the police had been called following an incident where Felicite had threatened to kill Juliette.13 An interim intervention order was granted, but a full order was not pursued.

In early August 2009, Felicite had threatened Juliette and their son, which resulted in Juliette going to the police station and staying elsewhere for a few nights.14 In a letter to Juliette, Felicite acknowledged that he had been “very aggressive” towards her during their relationship.

On the day before the killing, Juliette had again called the police after an argument about her communicating online with another man. She initially told police that Felicite had threatened her with a knife. However, when the police arrived, both she and Felicite denied this. She told the police that she was unhappy in the marriage and wanted to leave but was worried about her husband’s welfare.15

At his plea hearing, Ron Felicite’s previous aggressive behaviour and threats to kill his wife were described by both counsel as an “anger management issue” rather than “family violence”. This was reiterated by the sentencing judge, who stated that despite there being “verbal conflicts”, Felicite had no history of physical violence.16

Sentencing

In our study, a prior history of family violence was clearly recognised as an aggravating factor when there was an intervention order in place at the time of the killing or where the offender had previously been charged with a family violence-related offence. However, in cases where the offender had not been subject to criminal charges for family violence, their history of abusive behaviour received less recognition. As a result, often the explanatory narrative was that the homicide was an isolated or “out of character” event that occurred in the context of the stress of separation or mental health problems.

In R v Felicite, counsel for the defence described the murder as a “spontaneous outburst” in response to Juliette’s desire to separate and in the context of Felicite’s “background of depression and anger”.17 Citing the evidence of a psychiatrist, the defence said Felicite had been “vulnerable to stressors” and the depression he was suffering at the time impaired his judgment and “made him more prone to losing his temper”.18 The defence argued that character references demonstrated that the behaviour was “out of keeping” with his character.19 The prosecuting counsel countered this by arguing that Felicite was a man who “had anger management issues for some time”, but had only made “frugal” attempts to address them.20

The sentencing judge concluded: “There is no suggestion that you were ever physically violent to your wife before this event. Given the many verbal conflicts that are documented, this suggests you have at least some measure of self-control. Your employer speaks highly of your work ethic. I regard your prospects for rehabilitation as reasonably good”. Additionally, the sentencing judge accepted Felicite’s lack of prior convictions as a mitigating factor, and noted the character references which pointed to his “passive, caring nature and . . . concern for [his] immediate and extended family”.21

On a more positive note, a small number of judges expressly stated that separation was not conduct that could justify violence. In Felicite’s case, the Court of Appeal made clear that, even if a killing occurs in circumstances of provocation or emotional stress, for homicides in a domestic context, the primary focus of sentencing is punishment, denunciation and deterrence.22

A few judges made explicit comments rejecting the defendant’s claim that he had acted spontaneously or that the crime was linked to his depression, and were critical of attitudes of masculine entitlement that underlie such killings.

It is heartening that some judges and other legal professionals demonstrate an understanding of the complex dynamics of family violence and make statements that challenge the gender-based attitudes that underlie many intimate partner homicides. For example in R v Neascu the judge said:

“Our community, parliament and the courts have repeatedly said that women are not chattels, they are not something that is owned by a man, any man. Your wife was entitled to leave you. You may not have liked that, but she had the right to do so”.23

Judicial sentencing remarks are an opportunity to communicate these messages, as part of a shared or whole-of-system approach to prevention.

Where to from here

The Royal Commission highlighted the need for ongoing family violence training for legal professionals, noting that “understanding family violence should be regarded as core business of courts and legal practitioners, including those involved in homicide trials”.24 Our research supports the need for comprehensive professional education. We also argue that there is greater potential for the Supreme Court of Victoria to play a role in a whole-of-government response to the prevention of violence against women. In addition, judicial sentencing remarks should affirm women’s equality rights – to leave a relationship, commence a new relationship or otherwise act autonomously – and challenge the gender-based attitudes that underlie many intimate partner homicides.

Danielle Tyson is a senior lecturer in criminology at Deakin University and an adjunct senior research fellow in criminology at Monash University.

Mandy McKenzie is a PhD candidate in the Department of General Practice at the University of Melbourne, and formerly a research and publications officer at the Domestic Violence Resource Centre Victoria (DVRCV).

Deborah Kirkwood is a consultant and former senior research officer at the Domestic Violence Resource Centre (DVRCV).

Bronwyn Naylor is a professor in the Graduate School of Business and Law at RMIT University.

1. Crimes Act 1958 (Vic), s9AC, as inserted by the Crimes (Homicide) Act 2005 (Vic), s6.

2. Note 1 above, s9AD.

3. Note 1 above, s9AH. See current ss322J, 322K, 322M of the Crimes Act 1958 and ss58-60 of the Jury Directions Act 2015.

4. See www.dvrcv.org.au/knowledge-centre/our-publications/discussion-papers/out-character.

5. The research was funded by the Victorian Legal Services Board Grant Program in 2013.

6. Sentencing Advisory Council, “Sentencing Trends for Murder in the Higher Courts of Victoria 2007-08 to 2011-12”, 2013, www.sentencingcouncil.vic.gov.au/publications/sentencing-snapshots/140-murder-higher-courts.

7. VLRC, Defences to Homicide: Options Paper (2003) www.lawreform.vic.gov.au/projects/defences-homicide/defences-homicide-options-paper.

8. Our Watch, ANROWS and VicHealth 2015, Change the story – a shared framework for the primary prevention of violence against women and children in Australia, Our Watch, Melbourne www.ourwatch.org.au/getmedia/0aa0109b-6b03-43f2-85fe-a9f5ec92ae4e/Change-the-story-framework-prevent-violence-women-children-AA-new.pdf.aspx.

9. Note 1 above, s9AH, now s322J, Crimes Act 1958 (Vic).

10. VLRC, Defences to Homicide: Final Report (2004) [184], www.lawreform.vic.gov.au/sites/default/files/FinalReport.pdf.

11. Note 7 above, at [186]-[187], [283].

12. R v Felicite [2010] VSC 245.

13. Note 12 above, at [3].

14. Note 12 above, at [7].

15. Note 12 above, at [12].

16. Note 12 above, at [25].

17. Supreme Court of Victoria, Director of Public Prosecutions v Ron Felicite (24 May 2010) Plea at [59].

18. Note 17 above, at [60].

19. Note 17 above, at [55].

20. Note 17 above, at [66]-[68].

21. Note 12 above, at [25].

22. Felicite v The Queen [2011] VSCA 274 at [20].

23. R v Neacsu [2012] VSC 388 at [43].

24. Royal Commission into Family Violence, Royal Commission into Family Violence: Report and recommendations (2016) Volume III [225], www.rcfv.com.au/Report-Recommendations.

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