Why Victoria Needs to Rethink the Abolition of Defensive Homicide

Why Victoria Needs to Rethink the Abolition of Defensive Homicide

Monash Criminology’s Madeleine Ulbrick and Dr Asher Flynn, along with Deakin Criminology’s Dr Danielle Tyson, have published a piece in the Conversation outlining why Victoria should rethink the abolition of defensive homicide.

The piece notes that defensive homicide was introduced for two reasons:

  • To provide a “safety net” between complete acquittal (self-defence) and murder for women who killed an abusive male partner; and
  • To provide a “halfway house” for offenders with mental illness that did not amount to the strict mental impairment defence.

While considered a controversial offence, subject to two government reviews before its (equally controversial) abolition in November 2014, Flynn, Tyson and Ulbrick contend that the offence was working as intended and achieving these two aims.

The piece argues that without defensive homicide:

  • Offenders with significant cognitive impairment have no alternative between murder and manslaughter; and
  • A woman who kills a violent male partner faces an “all or nothing” choice of arguing self-defence at trial and risking a murder conviction, or pleading guilty to manslaughter. Bearing in mind that prosecutors may not accept an offer to plead guilty to manslaughter where there is evidence of an intention to kill (for example, where there are multiple blows with a weapon).

The piece was inspired by the Abolition of Defensive Homicide: Missing Voices in the Debate Panel, organised by Dr Asher Flynn, Madeleine Ulbrick, and Dr Danielle Tyson held on 28 November 2017. The panel, facilitated by Professor Bronwyn Naylor (RMIT University), reflected on some of the missing voices during the controversial debates surrounding defensive homicide’s operation.

The panelists included:

  • Professor Patricia Easteal (University of Canberra) who argued that by abolishing defensive homicide, the law is less able to respond justly to the years of abuse that victims of family violence have experienced. The law is less nuanced, less flexible, and less accessible for women who kill a violent partner.
  • The Honourable Justice Elizabeth Hollingworth (Supreme Court) who stated it is impossible to say that defensive homicide was not operating as an effective safety net for women who killed in response to prolonged violence, and the fact more men than women were convicted of the offence does not detract from its utility for women. Of the 6 cases where a woman was the perpetrator, 5 involved a history of family violence.
  • Ms Helen Fatouros (Managing Director, Victoria Legal Aid) who argued that the abolition of defensive homicide was a reactary policy decision that was not evidenced-based and has impacted negatively on women who are victims of family violence and coercive control.
  • Ms Melinda Walker (Law Institute of Victoria) who noted that the absence of defensive homicide has left an excrutiating gap in the law. She stressed that defensive homicide was not a replacement for provocation nor was it used as such.
  • Ms Madeleine Ulbrick (PhD Candidate, Monash University) who argued that the strict remit of the mental impairment defence means the abolition of defensive homicide has left a gap for recognising the moral and legal culpability of mentally impaired offenders. Having an alternative offence available does not mean people “get away with murder” despite what its critics claimed.

The panel, attended by approximately 100 guests, was followed by the launch of Dr Asher Flynn and Professor Jacqueline Hodgson’s (Warwick University) edited collection, Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (2017, Hart Publishing).

 Read the Conversation piece here.