Speech

Legislative Council

GREENS BILL: Domestic and Family Violence - Modernising Legal Defences

October 18th, 2017

On the 18th of October, Mark introduced the Greens Private Members Bill, Criminal Law Consolidation (Defences - Domestic Abuse Context) Amendment Bill 2017.

The Hon. M.C. PARNELL: The statistics on domestic or family violence are truly disturbing. Intimate partner violence is the most common type of violence against women worldwide and the leading cause of death amongst Australian women aged between 15 and 44-the leading cause of death. On average, at least one woman a week is killed by a partner or a former partner in Australia. Almost half of all spousal homicides committed by men involved killing women who had left them or were attempting to do so.

There is considerable research confirming the link between domestic homicide and domestic violence. We know that family violence results in a police callout on average once every two minutes across the country. They are horrifying statistics, but this is an entirely preventable societal problem that ultimately is caused by choices made by perpetrators of violence and perpetuated by a legal system that fails to protect victims of domestic violence.

As a community, we are increasingly recognising the importance and urgency of legislating protections for those experiencing domestic or family violence. Feminist critiques from the 1970s and 1980s gave insights into how the criminal justice system has historically failed to protect families from domestic violence, and by the 1990s most states and territories had enacted family violence legislation. These were important first steps, but emerging data and survivor experiences suggest that further reform is needed.

Research done by Bradfield in 2002 found a significant link between domestic violence and domestic homicide, citing Donnelly’s 1995 research that found a high likelihood that where a male offender kills his sexual partner the act that caused her death was not a first act of violence by the offender against the victim but a subsequent act often separated by months or years. Other research done by Mouzos in 1999 found that around 40 per cent of men who killed their female intimate partner were motivated by desertion, termination of a relationship or jealousy. Bradfield, again in the 2002 work, reiterates that separation is a dangerous time for women.

It is clear that in this area the law needs to strike a balance. On the one hand, we must ensure sufficient protections are in place for defendants, mostly women, who kill their abuser out of fear for safety. On the other hand, we must prevent any of these protections from being used by the abusers to reduce their punishment or blame their victim if their domestic violence becomes a domestic homicide.

Reforming the law in South Australia is long overdue. Reforms have been made in other Australian jurisdictions, but little has changed in South Australia, and this is what this Greens bill seeks to address. I propose to outline what has happened in other jurisdictions. In the process, I will refer to some quite horrendous cases that have triggered reform. Then I will explore the research work that has been done interstate and in South Australia, particularly the research work that has inspired this bill.

At this point, I would like to particularly thank my Chief of Staff, Cate Mussared, who has been working on this bill for the best part of a year and has pulled together a vast amount of relevant research, so I acknowledge her.

I want to outline some of the recent cases in Other Jurisdictions that have fuelled the call for law reform.

In Victoria in 2003 in Melbourne, James Ramage violently murdered Julie, his wife of 23 years, because she had left him and ‘taunted him about loving someone else’ and said that she didn’t enjoy sex with him. After having punched Julie to the ground and then strangling her to death, Ramage drove with his dead wife in the boot of his Jaguar and dumped her battered body in a shallow grave on a remote bush property.

The trial revolved around the question of whether in the moments immediately prior to Ramage’s use of lethal violence, Julie’s actions had caused him to lose his self-control and whether he possessed an intention to kill. The result of this was that the trial focused just as much on dissecting responsibility in the breakdown of their marriage as it did on the actual event of lethal violence.

Witnesses in the trial provided evidence of Ramage’s continuing intimidation and dominance of Julie throughout the marriage and also evidence of episodes of violence and abuse against Julie. However due to the hearsay rules of evidence and concerns of prejudice against Ramage, this evidence wasn’t heard by the jury. Julie Ramage couldn’t speak for herself and the law did not allow for her background relationship experiences to be heard. The criminal justice system was unable to provide her with a voice.

Ramage’s successful use of the partial defence of provocation meant that he found not guilty of murder but instead was convicted of the lesser charge of manslaughter and only spent 7 years in jail.

In the wake of this case and verdict, there was considerable outrage about how this partial defence to murder had cause such a grave injustice.

The provocation defence, which had been retained partly with the view to protect victims of domestic violence, ended up being used by Julie’s killer to justify and excuse his violence against her.

In New South Wales in Sydney in 2009 another similar tragedy took place. Chamanjot Singh killed his 29 year old wife Manpreet Kaur in their western Sydney home, by slitting her throat eight times with a box cutter. Manpreet had more than 22 cuts on her body and bled to death. Singh claimed that he had been provoked because, as he alleged, she threatened to leave him and suggested he would be deported.

Singh was charged with manslaughter instead of murder, because the court found his wife’s actions had ‘provoked’ him into losing control. Kaur had not done anything illegal, nor had she attacked Singh or behaved in a way that would threaten Singh’s immediate safety. She just made him angry. Singh served only 6 years for killing Manpreet Kaur.

Again, another example of the provocation defence being used by male killers to justify and excuse their violence against their female intimate partners who threatened to leave them.

To address these issues and provide appropriate legal defences to victims who kill to escape abuse, while preventing these defences from be misused, other Australian jurisdictions have tried a range of responses.

In 2003, Tasmania was the first state to abolish the provocation defence.

In 2004 the ACT modified the partial defence of provocation, so that a non-violent sexual advance cannot, without other factors, constitute provocation.

In Victoria, following the injustice of the Ramage case and community outrage over how the law of provocation legitimises male-perpetrated intimate partner homicides, the Victorian Parliament abolished the provocation defence in 2005. This followed the publication of the Victorian Law Reform Commission’s Report ‘Defences to Homicide’ Final Report in October 2004.

As an alternative to the provocation defence the Victorian Parliament created the offence of ‘defensive homicide’. This aimed to act as a safeguard for long-term victims of domestic violence who kill their abusers and may otherwise be stuck with a full murder charge.

They also introduced provisions to allow for a range of evidence about violence in the relationship in arguing self-defence, manslaughter or defensive homicide. These reforms put beyond doubt that the reasonableness of a survivor of domestic violence’s actions must be evaluated by reference to ‘what it must really be like to live in a situation of ongoing violence’.

Defensive homicide, however, was then abandoned in Victoria in 2014 after it was ‘hijacked’ by violent men who were, again, granted reduced sentences for killing their partners.

In 2006, the Northern Territory introduced a new provision dealing with the partial defence of provocation. The revised provision, currently in force, imposes an objective test as to whether the provocation was sufficient to have induced an ordinary person to have so far lost self control as to have formed an intent to kill or cause serious harm to the deceased. The law was also modified so that a non-violent sexual advance cannot, without other factors, constitute provocation.

Western Australia abolished provocation in 2008. In both Tasmania and Western Australia, the abolition of provocation was helped along by replacing the mandatory penalty of life imprisonment for murder with a presumptive sentence of life imprisonment.

In 2010, Queensland reformed their laws to create a new offence of ‘killing for preservation in an abusive domestic relationship’, which reduces murder to manslaughter. As a murder sentence in Queensland carries a mandatory life sentence, this is particularly significant.

Additionally, Queensland’s partial defence of provocation was amended in 2011, in order to reduce the scope of the defence being available to those who kill out of sexual possessiveness or jealousy. Furthermore, ‘except in exceptional and extreme’ circumstances, ‘words alone’ and ‘the deceased’s choice about a relationship’ could not constitute provocation.

Queensland then abolished the ‘gay panic’ aspect of the defence in 2016, leaving SA as the only state in Australia to still retain it. At this point I would like to acknowledge the work of my colleague Tammy Franks MLC who has been working for a numbers of years to remedy this shameful situation.

In NSW, after the tragedy of the Singh case in 2009, the Australian and the NSW Law Reform Commissions held a review into family violence laws in 2010. This was followed by a 2013 Parliamentary Committee inquiry into the provocation defence. The Parliamentary inquiry found that ‘the risk of a murder conviction for women who kill an abuser was too high without a ‘safety net’ option of a provocation defence’. NSW consequently amended their laws, retaining a cut-down version of the partial defence of provocation, but specifying that the provocative conduct of the deceased must also have constituted a serious indictable offence.

This brings us to the situation in South Australia.

In a 2014 article in The Conversation titled ‘Laws on lethal domestic violence should be reviewed – nationally’, Criminology expert Dr Kate Fitz-Gibbon, (Lecturer in Criminology at Deakin University – but now at Monash University), commented on the situation in South Australia, stating-’Marking a third approach to reconsidering the law of provocation, South Australian MPs recently expressed concern about the law’s operation in ‘gay panic’ cases. They are yet to consider how it applies in cases of men who kill a female intimate partner who attempted to leave the relationship or has allegedly been unfaithful. To date, such men continue to have a partial defence of provocation open to them.’

Dr Kate Fitz-Gibbon also suggests that we need stronger protections in place for survivors of domestic and family violence. We need stronger legal defences for long-term survivors of family violence who kill out of fear for the safety of themselves and others.

I would now like to outline some of the Reviews that have been conducted into this complex area of law. Considerable research has gone into finding a balanced solution for this problem. I want to refer to three studies in particular:

The first report is the 2004 ‘Defences to Homicide – Final Report’ by the Victorian Law Reform Commission.

This report was commissioned in 2001 with the reference:

‘To examine the law of homicide and consider whether:

  • it would be appropriate to reform, narrow or extend defences or partial excuses to homicide, including self-defence, provocation and diminished responsibility;
  • any related procedural reform is necessary or appropriate to ensure a that fair trial is accorded to persons accused of murder or manslaughter, where such a defence or partial excuse may be applicable; and
  • plea and sentencing practices are sufficiently flexible and fair to accommodate differences in culpability between offenders who are found guilty of, or plead guilty to, murder or manslaughter.

Recommendations in the Report included that:

  • the partial defence of provocation should be abolished;
  • the law of self-defence and other defences to homicide should be codified;
  • factors which may assist the jury in determining whether a person who was subjected to family violence by the deceased acted in self-defence or under duress should be in included in a separate provision on evidence;
  • the new provision on self-defence should specify that a person may believe that the conduct carried out in self-defence is necessary and that a person’s response may be reasonable when the person believes the harm to which the person responds in inevitable, whether or not it is immediate.
  • a provision should be introduced to clarify that where self-defence or duress is raised in criminal proceedings for murder or manslaughter and a history of family violence has been alleged, evidence on the following may be relevant:
    • the history of the relationship between the person and the family member, including violence by the family member towards the person or any other person;
    • the cumulative effect, including psychological effect, on that person of that violence; and
    • the social, cultural and economic factors that impact on that person.

Other than the first recommendation to abolish provocation, these other recommendations and the Victorian legislation that resulted from this very thorough body of work form the basis for the Bill before you today.

The second report is the 2010 ‘Family Violence- A national legal response’ (ALRC Report 114) conducted by the Australian Law Reform Commission and the NSW Law Reform Commission.

As mentioned earlier, the 2010 Law Reform Commission review into family violence sought to review family violence laws to improve the safety of women and children. Overall, its recommendations focused on changing definitions to fit more modern conceptions of domestic violence, family relations and abuse. Similarly, the recommendations suggest a more comprehensive legal framework for acknowledging domestic abuse in its various forms, including abuse that does not fit conventional understandings of direct physical attacks.

The Report also draws attention to the importance of recognising the gendered nature of this issue, as well as the complex ways that family violence and domestic abuse intersect with marginalisation – notably its disproportionate impact on: ‘Indigenous persons; those from a culturally and linguistically diverse background; the aged; those with a disability; and those from the gay, lesbian, bisexual, transgender and intersex communities’.

The report further recommended legislation should broaden the terms of reference for what constitutes domestic violence, pointing out that ‘family violence is violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful.’

‘Such behaviour may include but is not limited to:

 (a) physical violence;

 (b) sexual assault and other sexually abusive behaviour;

 (c) economic abuse;

 (d) emotional or psychological abuse;

 (e) stalking;

 (f) kidnapping or deprivation of liberty;

 (g) damage to property, irrespective of whether the victim owns the property;

 (h) causing injury or death to an animal irrespective of whether the victim owns the animal; and

 (i) behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above.’

‘The Commissions are not advocating that all types of conduct that constitute family violence should be criminalised, nor that family violence should be given the same treatment in the various legal frameworks considered in this Report. In each case, the severity and context of particular family violence may carry varying weight in different legal proceedings, depending on the reasons for advancing evidence of family violence and the purposes of the respective legal frameworks.’

Key recommendations were:

‘Recommendation 7–2:

State and territory family violence legislation should contain a provision that explains the nature, features and dynamics of family violence including: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children. In addition, family violence legislation should refer to the particular impact of family violence on: Indigenous persons; those from a culturally and linguistically diverse background; those from the gay, lesbian, bisexual, transgender and intersex communities; older persons; and people with disabilities.’

‘Recommendation 7–4:

State and territory family violence legislation should articulate the following common set of core purposes: 

(a) to ensure or maximise the safety and protection of persons who fear or experience family violence;

(b) to prevent or reduce family violence and the exposure of children to family violence; and

(c) to ensure that persons who use family violence are made accountable for their conduct.’

In relation to Homicide Defences and Family Relationships in Criminal Laws, the report made the following recommendations:

‘Recommendation 14–1:

State and territory criminal legislation should ensure that defences to homicide accommodate the experiences of family violence victims who kill, recognising the dynamics and features of family violence.’

‘Recommendation 14–2:

State and territory governments should review their defences to homicide relevant to family violence victims who kill. Such reviews should:

(a) cover defences specific to victims of family violence as well as those of general application that may apply to victims of family violence;

(b) cover both complete and partial defences;

(c) be conducted as soon as practicable after the relevant provisions have been in force for five years;

(d) include investigations of the following matters:

(i) how the relevant defences are being used-including in charge negotiations-by whom, and with what results; and

(ii) the impact of rules of evidence and sentencing laws and policies on the operation of defences; and

(e) report publicly on their findings.’

The third report and the one most relevant to us is the South Australian Law Reform Institute (SALRI) ‘The Provoking Operation of Provocation: Stage 1’ Report 2017.

The SALRI Report focuses on SA’s partial defence of provocation, and overall recommends that the defence be abolished due to its inherent discrimination towards women and LGBT groups:

‘Given that the criticisms of the present law of provocation go beyond the homosexual advance defence, SALRI concludes that any reform should extend beyond removing this aspect of provocation. SALRI considers that wider reform of the present law is necessary. In particular, a strong criticism of the present law is that the defence of provocation is gender biased and unjust, namely that it is perceived to unfairly favour male accused (especially those who have killed a female partner) while applying unfairly to women accused of murder (especially those who have been subjected to family violence).’

While the strong recommendation to abolish the ‘gay panic’ aspect of this defence is an important theme in this report, SALRI notes:

‘…removing a homosexual advance from the ambit of provocation, whilst serving as an important legislative declaration of non-discrimination, in practice would have very limited effect’

The report goes on to recommend four approaches to amend the provocation defence’s inequities:

‘SALRI has considered four options to date in its consultation and research.

First, retaining the partial defence of provocation but removing the homosexual advance aspect (or any non-violent sexual advance).

Secondly, making major changes to provocation based on the New South Wales (NSW) model of ‘extreme provocation’

Thirdly, abolition of the partial defence of provocation.

Fourthly, clarifying the law of self-defence in a family violence context.

Overall, the SALRI report strongly recommended abolition of the partial defence of provocation.

However:

‘SALRI suggests that it would be premature to make or consider any changes to the present law of provocation until its further review in the second stage has been concluded. SALRI intends to release its Stage 2 Report as soon as possible.

Therefore:

‘SALRI recommends that South Australia should amend Division 2 of the Criminal Law Consolidation Act 1935 (SA) and adopt an approach based on the Victorian model of self-defence (and for consistency the Victorian approaches of duress and necessity), which explicitly takes into account both evidence of family violence and the context of family violence in clarifying the scope and operation of self-defence (and for consistency duress and necessity).

It is worth noting that almost universal support was expressed to SALRI during its consultation for South Australia to adopt the Victorian model of self-defence in respect to family violence.

The underlying theme is simple-more protection is needed for victims of domestic violence, and less protection is warranted for perpetrators of violence.

Here in SA, we are lucky that we have not seen a recent case like those of Singh or Ramage – which is why it’s important to act now, before action is necessitated by tragedy.

We know that in the vast majority of cases where women kill their partners, there is a history of family or domestic violence.

If we then consider that family violence has psychological and physiological impacts on the victim so severe that the Diagnostic and Statistical Manual of Mental Disorders (5th Edition) categorises ‘battered woman syndrome’ as a sub-category of posttraumatic stress disorder, then we must accept that violent conduct towards a long-term abuser is potentially within the scope of how a ‘reasonable person’ would respond to such grievous trauma.

Legislators tend to support the idea of self-defence being a safety net, and agree that if someone kills while defending themselves or another from the deceased’s serious violent behaviour, their actions are generally considered to be reasonable.

An 1998 article titled 'Is near enough good enough? Why isn't self-defence appropriate for the battered woman?' in the publication "Psychiatry, Psychology and Law' looked at the application by the Australian courts of the defences of provocation and self-defence to women who kill thier abusive partners. Author Rebecca Bradfield pointed out: 'courts tend to categorise the killing as raising the defence of provocation rather than self-defence. It is argued, through reference to certain cases, that the practical reality is that the woman is often acting to protect her life or that of her children'.

I now want to specifically address the issue of Provocation in South Australia, which remains a common law partial defence in this State.

Although the Greens have considered the merits of abolishing provocation, we are also conscious that we have mandatory minimum sentencing laws in SA, which is problematic. Also as we know, despite worthy attempts by my Greens colleague Tammy Franks to abolish the gay panic defence in this place, SA remains the only jurisdiction in Australia to still have this defence available. This is an embarrassment to SA.

However, as I’ve already outlined, the SALRI report recommended that ‘it would be premature to make or consider any changes to the present law of provocation until its further review in the second stage has been concluded’. The Greens are looking forward to the release of this 2nd report and so aren’t addressing provocation laws in South Australia in this Bill.

It is worth noting though that reform of the provocation defence has been central to family violence reform in other jurisdictions as I’ve already outlined.

Instead, this Greens Bill acts upon other recommendations in the SALRI report to ‘adopt an approach based on the Victorian model of self-defence (and for consistency the Victorian approaches of duress and necessity), which explicitly takes into account both evidence of family violence and the context of family violence in clarifying the scope and operation of self-defence (and for consistency duress and necessity)’.

Specifically, my Bill addresses the following specific recommendations from the SALRI report.

Recommendation 4:

‘SALRI recommends that the current law of self-defence set out in Division 2 of the Criminal Law Consolidation Act 1935 (SA) should be amended for all offences of violence (not confined to homicide) to incorporate the Victorian model of self-defence in circumstances of family violence as set out in Part IC of the Crimes Act 1958 (Vic).’

Recommendation 5:

‘SALRI recommends that, in particular, the current law of self-defence in Division 2 of the Criminal Law Consolidation Act 1935 (SA) should be amended to clarify that in cases involving family violence, the actual or perceived threat need not be immediate or imminent.’

Recommendation 6:

‘SALRI recommends that, in particular, the current law of self-defence in Division 2 of the Criminal Law Consolidation Act 1935 (SA) should be amended to provide that evidence of family violence is relevant and may be taken into account to prove both the accused’s belief that using force was necessary (the subjective limb) and to prove whether the conduct said to occur in self-defence was a reasonable or proportionate response in the circumstances as the accused believed them to be (the objective limb).’

Recommendation 7:

‘SALRI recommends that, in light of modern understanding, the definition of ‘family violence’ should be given a wide definition and not be confined to direct physical violence and ‘family violence’ should also be given a wide definition in relation to the relationships caught within it (especially to include Indigenous kinship) and not be confined to spouses or ‘domestic partners’. The model provided in Part IC of the Crimes Act 1958 (Vic) is helpful but it is additionally suggested that, for consistency, the existing model of ‘family violence’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) should be adopted.’

Recommendation 8:

‘SALRI recommends that either Division 2 of the Criminal Law Consolidation Act 1935 (SA) or the Evidence Act 1929 (SA) should be amended in terms similar to Part IC of the Crimes Act 1958 (Vic) to explicitly provide that evidence of family violence and related evidence (including ‘social framework’ evidence as to the nature and effect of family violence) is admissible and may be adduced in any case involving family violence (not confined to homicide) with potential defences of self-defence, duress or necessity.’

Recommendation 10:

‘SALRI recommends that, for consistency with Recommendations 4, 5, 6 and 7, the common law defences of duress and necessity in South Australia should be amended in respect of all offences, to clarify that in cases involving family violence, the actual or perceived threat need not be immediate and to provide that the fact of family violence should be taken into account in considering the reasonableness or proportionality of the response employed. The model in Part IC of the Crimes Act 1958 (Vic) provides a suitable model.’

Recommendation 11:

‘SALRI recommends that Recommendations 3 to 10 above can, and should, be undertaken, regardless of whether provocation is ultimately retained, revised or abolished in South Australia. 

We cannot ignore the recommendations that have arisen from the vast amount of work of so many experts-the Victorian Law Reform Commission, the Australian Law Reform Commission, the NSW Law Reform Commission, and the South Australian Law Reform Institute as well as many individual experts in this field, including those who I have just thanked.  

We must act now to improve the way our legal systems deals with homicides in a domestic violence context. The South Australian Parliament should not wait for an injustice to happen here before reforming the law. The case law from other Australian and comparable common law jurisdictions clearly reveals problems with the law of self-defence as it is presently drafted in SA.

This Bill provides an opportunity for our Parliament to ensure that those persons who kill an abuser following a prolonged period of family violence are able to access the complete defence in cases of genuine self-defence.

In conclusion, I will repeat again the obvious point that reforming our laws relating to a domestic violence context is not simple. The Bill that the Greens are introducing today has been developed over a period of over a year and has changed dramatically since the first draft. This has been a result of research and extensive consultation with stakeholders and experts in this area of law.

I would like to put on the record my thanks for the feedback and input into this Bill from a number of individuals and organisations. While there were various views expressed on whether this was the perfect solution to a difficult area of law reform, I was encouraged that we are heading down the right path and that as legislators we need to start having the debate about this now.

I’d like to express my sincere thanks and gratitude to:

Sarah Moulds, University of Adelaide

Ian Leader-Elliott, University of Adelaide

Kellie Toole, University of Adelaide

Rick Sarre, University of South Australia

Dr Kate Fitz-Gibbon, Monash University

Michael O’Connell, Commissioner for Victims’ Rights

Sarah Adams, Trish Spargo and Ritchie Hollands from the Equal Opportunity Commission

Bill Boucaut, South Australian Bar Association

Andrew English, Legal Services Commission

Zita Ngor, Women’s Legal Service SA

Mary Heath, Flinders University

Debra Spizzo and Nicole Stockdale, Women’s Domestic Violence Court Assistance Service, Victims SA

I commend the Bill to the Council.


EXPLANATION OF CLAUSES

CLAUSE 1 and 2

Formal


CLAUSE 3

Amendment of section 5-Interpretation

Definition of ‘domestic abuse’

My Bill adds the definition of ‘domestic abuse’ into the Criminal Law Consolidation Act 1935 by referencing the existing model and definition in the Intervention Orders (Prevention of Abuse) Act 2009.

The Greens have a preference, as do others, for the use of the term ‘family violence’ rather than ‘domestic abuse’, however as s8 of the Intervention Orders (Prevention of Abuse) Act 2009 uses the terminology ‘domestic abuse’ so we’re working with what already exists.

The reason this is amendment is important is that the definition of domestic abuse under this Act is comprehensive, and covers important emotional and social aspects of domestic abuse and not just physical abuse.

This is in accordance with Recommendation 7 of the SALRI report.

 

CLAUSE 4

This inserts of a Note after section 15(5) of CLCA which relates to ‘Self defence’, to ‘See section 15D as to belief in circumstances where domestic abuse is alleged’. Section 15D is the new section which I’ll explain next.

This relates to Recommendation 6 of the SALRI report.

 

CLAUSE 5

Insertion of section 15D – Domestic abuse and self-defence

This section deals with self-defence in a domestic abuse context, addressing matters such as immediacy, proportionality and necessity. It also addresses the type of evidence of domestic abuse that may be adduced, the meaning of ‘family member’ and the common law defence of duress.

Self-defence

Self defence, (as it currently exists in SA CLCA 1935), is a full defence – a murder charge can be defeated completely if it’s found the defendant killed in self-defence when in serious danger, with reasonable retaliation proportionate to the threat. This defence results in full acquittal if successful.

Self-defence can be used as a full defence in cases where the ‘defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose’, and the defendant’s retaliation was ‘reasonably proportionate to the threat that the defendant genuinely believed to exist’.

It can also be used as a partial defence under slightly different circumstances, for example if the retaliation was not proportionate to the threat.

However, there is nothing concrete to ensure this defence is available to victims of domestic or family violence.

The problem is, the threat that family violence poses to a victim is often more complex than an immediate physical attack, and outside the context of the abusive relationship/s, the necessity for physical defence is not always obvious.

Whether or not self-defence was proportionate can be interpreted differently depending on context. As Easteal and Bartels point out, ‘what is seen as an overreaction (and unreasonable) by some may be appropriate in the context of the violence the woman has previously experienced’.

Further, factors that might trigger an abuse victim to kill in response to the abuse, are not necessarily immediate physical threats, but can be seemingly innocuous behaviours that nonetheless evoke an extreme conditioned fear response due to prior experiences of abuse. For example, a non-violent sexual advance may be the last straw for a victim of abuse who knows what usually comes next. Taken in isolation, a non-violent advance may seem innocuous, but in the context of long-term violence or sexual abuse, such an advance by the perpetrator of the abuse can indicate to the victim that failure to comply will lead to assault.

It’s clear that unless the scope and impact of domestic violence is acknowledged by the criminal justice system, ‘self-defence’ may not be adequate for protecting victims of long-term violence who kill to escape abuse.

For this reason, broadening the legal definitions of domestic abuse is central to this bill. The aim is to recognise more comprehensively the lived experience of domestic or family violence victims, and acknowledge the ways in which severe psychological injury impact their life and behaviour.

The Bill provides a clear framework to assess applicability of self-defence specifically in a domestic violence context, which is often more nuanced and complex than the immediate physical attacks already covered in Section 15.

Immediacy and proportionality

Under the Bill, self-defence can be claimed if the defendant is killing for their own preservation in an abusive relationship, even if in response to a threat that is not immediate. This acknowledges the cumulative nature of domestic violence, and recognises that the psychological trauma of long-term emotional abuse significantly contributes to victims’ fear for safety.

The Bill includes a provision that makes it clear that self-defence may be used, in the context of domestic violence, if the person genuinely believes that the conduct is ‘necessary and reasonably for a defensive purpose’ and may be ‘reasonably proportionate to the threat that the person genuinely believed to exist’ even if the threat is not immediate or imminent, or if the force is in excess of the force involved in the harm or threatened harm.

This is important, as research shows that women who experience repeated domestic violence may not respond violently at the time of the attack, and instead may kill in non-confrontational situations.

This relates to Recommendations 5, 6 and 10 of the SALRI report.

Evidence

This Bill also expands what constitutes evidence of domestic violence in the context of self-defence. The aim here is to acknowledge family violence that doesn’t fit within current definitions, but is a serious threat to safety nonetheless.

This allows contextualisation of isolated instances of violence, and facilitates a more complete picture of the experiences and needs of a family and domestic violence victim. It broadens the ways in which victims of family violence can present evidence of their abuse, again recognising the nuanced ways domestic violence can differ from conventional instances of violence that warrant self-defence.

These parameters for evidence are much more in keeping with up-to-date frameworks for analysing family violence.

The Bill changes to evidentiary requirements to provide a clear accessible pathway for getting the evidence of family violence into the Court rather than leaving it to the discretion for the judge.

The evidence that can be included under this Bill includes ‘social, cultural or economic factors’, ‘the history of the relationship’, and ‘the psychological effect of abuse’. Importantly, this Bill also recognises that ending the relationship is not always a safe option for a victim of family violence and the Bill includes ‘The general nature and dynamics of relationships affected by domestic abuse, including the possible consequences of separation from the abuser’.

This relates to Recommendation 8 of the SALRI report.

Definition of Family Violence

New clause 15D(4) expands the scope of relationships under the definition of ‘family member’, to include children and grandchildren, siblings, carers and those that are related by blood, marriage, a domestic partnership or adoption, and those ‘related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group’. Again, this definition references the Intervention Orders (Prevention of Abuse) Act 2009, specifically section 8(8).

This relates to Recommendation 7 of the SALRI report.

Insertion of section 15E – Domestic abuse and the common law defence of duress

The Bill provides that where the common law defence of duress is in issue, evidence of domestic abuse may be relevant in determining whether the person was acting under duress. In such cases, evidence of domestic abuse will be considered when looking at whether the person believed that their actions were necessary and also whether their actions were a reasonable response in the circumstances as the person perceives them.

This relates to Recommendation 10 of the SALRI report.

For more information see a copy of the Bill

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