A ‘Reasonable’ Response? Homicide Law Reform Impacts

22 / 11 / 2013

Approximately a quarter of homicides in Australia involve intimate partners, and the majority of these involve men killing female partners (Chan & Payne 2013, Mouzos & Rushforth 2003). In the smaller number of cases in which women kill, it is typically in response to prior controlling or abusive behaviour by the male partner (Polk 1994, VLRC 2003).

In 2005, the Victorian government introduced major reforms to the laws of homicide. One of the main intentions was to improve the recognition of family violence in homicide cases. New research released this week – jointly undertaken by DVRCV and Monash University, and funded by the Victorian Women’s Trust – examines the impact of the reforms in cases of women who kill intimate partners.

This new research is incredibly timely as the Victorian Government currently reviews the law of defensive homicide. A version of this article, which is based on the new report’s findings, recently appeared in DVRCV’s Advocate and is reproduced with permission from the authors.

By Mandy McKenzie & Debbie Kirkwood, DVRCV, and Danielle Tyson, Monash University

Why the reforms were introduced

In Victoria over recent decades, a growing body of research has identified a gender bias in legal responses to intimate partner homicides. Specifically, there has been a focus on the law’s inability to recognise the nature and impact of family violence and its role in intimate partner homicide. One of the major concerns has been that women who kill to protect themselves from serious harm or death in the context of ongoing family violence have rarely been able to successfully raise self-defence in homicide trials.

The laws around self-defence have traditionally been based on confrontations between men. These laws ‘evolved from a bygone era when the law was concerned with violent confrontations between two males of roughly equal strength where a threat of death or serious injury was immediate’ (Hulls 2005). Critical to the success of a claim of self-defence was the notion that the killing was in response to an immediate threat, and the use of force was ‘proportionate’ to that threat.(1)

However, research by the Victorian Law Reform Commission (VLRC 2003) found that women were rarely successful in claiming they acted in self-defence. Women who kill abusive partners often do so in non-confrontational circumstances, such as when the partner is asleep or has their guard down. Differences in size and strength between men and women also mean that women typically use weapons to kill, rather than their bare hands (VLRC 2003). This means that the killing may appear to be ‘unreasonable’ if it was not in response to an immediate threat of violence, and the use of a weapon may may be seen to be ‘disproportionate’ to the threat.

A comprehensive package of reforms was introduced through the Crimes (Homicide) Act 2005 (Vic). The rationale for key aspects of the reforms was to better accommodate the experiences of women who kill violent family members in self-defence. Another reason for the reforms was to stop abusive men who kill their partners from being able to defend themselves by arguing that the killing was provoked by the infidelity or other behaviour by their female partner (VLRC 2003, ALRC and NSWLRC 2010, p. 622).

The 2005 amendments included:

– abolishing the controversial partial defence of provocation

– clarifying the requirements of self-defence

– recognising ‘excessive self-defence’ through the creation of a new offence of defensive homicide

– clarifying the laws of evidence so that relevant evidence about family violence can be admitted.

Self-defence and defensive homicide

The amended legislation in relation to self-defence (Crimes Act 1958 section 9AC) means that a person is not guilty of murder if they believed that their conduct was necessary to defend themselves (or another person) from being killed or from suffering a ‘really serious injury’.

However, if the jury accepts that a person believed that their conduct was necessary to defend themselves from serious harm, it does not automatically result in an acquittal. The jury still needs to consider whether the person’s subjective belief was reasonable, under section 9AD—which describes the new offence of defensive homicide.

Defensive homicide was intended to act as a ‘back-stop’, which would ‘give women and others who kill in response to family violence a possible partial defence, should they be unable to successfully argue self-defence’ (VLRC 2004, p. 102). Where a person can demonstrate that they had a genuine belief in the need to kill in self-defence, but is found to have had no reasonable grounds for that belief, the person may be acquitted of murder and found guilty of defensive homicide. This offence carries a maximum penalty of 20 years’ imprisonment.

Family violence evidence

A provision on family violence (section 9AH) has been included in Victoria’s homicide legislation. This outlines why a person’s belief in the need to act in self-defence may in fact be reasonable in cases where there is family violence. It allows for evidence highlighting the relationship and social context of family violence to be admitted in cases of homicide. It provides that a person who has been subjected to family violence may have reasonable grounds for believing that it was necessary to kill in self-defence, ‘even if … he or she is responding to a harm that is not immediate; or … his or her response involves the use of force in excess of the force involved in the harm or threatened harm’.

The definition of family violence in the Act is broad and can include physical, sexual, psychological abuse, threats, intimidation, property damage and harassment. The evidence that may be admitted can relate to the history of the relationship, the nature and dynamics of violent relationships generally, the effects of family violence, the possible consequences of separation from the abuser, and the social or economic factors that impact on people who have been affected by family violence.(2)

Cases of women who kill 2005-2013

To review how the law reforms are working in practice, we examined homicide cases in Victoria between 23 November 2005 and 1 June 2013.

During this time, eight women and 32 men were charged with killing a partner or ex-partner in Victoria.(3) This is consistent with other research that shows that men are the main perpetrators of intimate partner homicides (Chan & Payne 2013).

By examining the eight cases of women who killed partners or ex-partners, we identified several common themes:

– Allegations of prior family violence (physical, sexual or psychological violence) by the deceased were made by the women in each case.

– A weapon (knife or stick) was used in the killing in all but one case.

– Every case except one occurred in the context of an immediate confrontation with the deceased (according to the account of the accused). The accused’s stated motivation for the killing was to protect herself from immediate harm.(4)

Of the eight cases of women who killed partners or ex-partners:

– one case was dismissed based on the argument that the killing was in self-defence (DPP v Dimitrovski 2009)

– two women pleaded guilty to defensive homicide (R v Edwards [2012] VSC 138 and R v Black [2011] VSC 152)

– one woman was convicted of defensive homicide at trial (R v Creamer [2011] VSC 196)

– three women pleaded guilty to manslaughter (R v Downie [2012] VSC 27, R v Hudson [2013] VSC 184 and R v Kulla Kulla [2010] VSC 60)

– one woman was convicted of manslaughter at trial (R v Kells [2012] VSC 53).

We examined the seven cases that proceeded to a plea hearing or trial, by obtaining sentencing judgements and transcripts of plea hearing and criminal trials. The case of Karen Black highlights some of the themes we identified. This is one of two cases in which the accused woman pleaded guilty to defensive homicide.

KAREN BLACK’S CASE

On 30 October 2009, Karen Black (then aged 53 years) stabbed and killed her de facto partner Wayne Clarke in their home near Geelong in Victoria.

On the morning of that day, Karen Black had returned home from working night-shift. She and Wayne Clarke went shopping and to a hotel. He repeatedly criticised her and was ‘niggling …with respect to the prospect of sexual intimacy on the weekend’. (5) After they returned home, they argued and he followed her into the kitchen, sticking his chest out and pinning her into a corner. She said:He was then coming closer and closer to me and was pointing his finger at me, and I was thinking because he was so drunk he would probably want to force himself on me sexually and I was just thinking well what else could he do to me. Would he just stick his finger into my forehead. (6)

According to her account, she grabbed a kitchen knife, while he continued to corner her and ‘egg her on’. She stabbed Mr Clarke twice in the chest. She called her adult son, who put Wayne Clarke in his car and drove him to Geelong Hospital, calling ‘000’. Mr Clarke died before he reached hospital. Meanwhile Karen Black went to the police station and confessed to the killing. She initially told police she didn’t mean to kill her partner, but admitted later in that interview that during the incident, ‘I wanted to kill him’.(7)

Karen Black was charged with murder, but the prosecution later accepted her plea of guilty of defensive homicide. In April 2011, she was sentenced to nine years with a non-custodial period of six years. She unsuccessfully appealed her sentence on the grounds that it was manifestly excessive and that inadequate weight was given to the impact of family violence (R v Black [2012] VSCA 75).

History of family violence

Karen Black told a clinical and forensic psychologist that:[Wayne Clarke] was never physically violent towards me, but he’d poke me with his finger and he’d point at me and jab me in the chest and on the forehead. He would sometimes force himself upon me sexually. The thing is I got to the stage where I wasn’t sure what he’d do to me. When he got past that point with his drinking, I’d just go and lock myself in my room.(8)

She also said his conduct reminded her of being sexually abused by her father as a child.

She said that, approximately a year before the killing, she had returned home after she had been out with a girlfriend and found a gold coin and knife placed on her pillow.(9) Mr Clarke did not explain what he meant by this, but after that time he became more possessive and she felt unable to go out without him.(10)

Karen Black’s son supported his mother’s account: ‘Most of the times from what I saw Wayne treated mum like shit especially if he’d been drinking. If he had been drinking he was like a tormentor’. He also described occasions when he had to ‘pull him [Wayne Clarke] up because it was getting a bit out of hand. I don’t know what he would’ve done. I’ve never seen him hit her but I have seen bruises on her’. (11)

Not ‘serious’ enough

In this case, although it was accepted by the prosecution that the ongoing harassment and intimidation that Karen Black had been subjected to would come within the definition of ‘family violence’ in the Crimes Act 1958, the violence was not perceived as serious. The prosecutor submitted that the violence was ‘limited to threats, intimidation, harassment and jabbing and prodding’, and therefore Karen Black was not really at risk of really serious harm or death during the incident. This view was also expressed by the sentencing judge, who told Karen Black that her belief that ‘the knife could have been turned on you or that you had to get him first, or that you yourself were at risk of really serious harm if you did not act was not based on reasonable grounds’.(12) He said that, although Wayne Clarke had her cornered in the kitchen, ‘he was not armed, and … to have stabbed him twice may be said to be disproportionate to the threat he then posed to you’.(13) The majority judgment supported this assessment in Karen Black’s appeal.(14)

The defence agreed that Karen Black’s belief that it was necessary to stab Wayne Clarke to protect herself from harm was not based on reasonable grounds. However, the defence argued that the prior family violence she had been subjected to by Mr Clarke, in addition to the physical and sexual abuse she experienced from her father during her childhood, was serious. This history triggered her belief that Mr Clarke could seriously harm her. The defence argued this reduced her moral culpability and therefore she should receive a shorter sentence.(15)

Have the reforms had an impact?

Karen Black’s case raises several questions about the impact of the reforms and how family violence is being understood in homicide trials. As was evident in the other cases we examined, the nature, dynamics and impact of family violence was poorly understood.

Based on Wayne Clarke’s prior history of intimidation, sexual violence and threats, an argument could have been made that Karen Black’s fears for her safety were reasonable. According to the evidence, he had previously threatened to kill her and she was afraid to go out without him or have friends to the house. Her son was also concerned about his mother’s safety and had seen bruises on her. Further, Karen Black stated that, while she was cornered in the kitchen, she feared that Wayne Clarke would force her into sex.

He had done so repeatedly in the past. However, the likelihood of being raped by her partner was not seen as serious enough to justify her actions. In fact, there was no mention of the word ‘rape’ in this case—instead, it was stated that Karen Black would ‘give in’ when Wayne Clarke forced himself on her.(16)

In this case, as in the other cases we examined, no use was made of the new family violence evidence provision. Had the case gone to trial, an expert witness could have explained the serious impacts of sexual violence, intimidation and threats. Drawing on established models of risk assessment in family violence cases, such as the Family Violence Risk Assessment and Risk Management Framework (Department of Human Services Victoria 2012), an expert witness could have identified the evidence-based risk factors present in this case. Research evidence could have been provided to demonstrate that the level of violence typically escalates, and that women tend to be accurate in their predictions of future violence.(17)

However, as one commentator has noted, the reasoning of the defence was ‘reminiscent of the pathologising arguments involving battered women syndrome’ (Toole 2012 p.278). According to a forensic psychologist’s report, Karen Black was ‘an unassertive and timid woman’.(18) Ultimately it was argued by the defence that her assessment of the level of risk she faced on the night of the killing was not rational or reasonable—it was an overreaction, based on the ‘cumulative impact’ of prior abuse.(19)

Further change needed

As this case and the other cases we examined demonstrate, further change is needed to accommodate the experiences of women who kill abusive partners. There are encouraging signs—for example, legal professionals now appear to have an awareness of the relevance of family violence in homicide cases. The provisions make it more likely that family violence will be considered and linked to the accused person’s actions and the available defences.

However, we still have a long way to go. Misperceptions about family violence continue to impact on the way women’s actions are perceived, the kind of defences that will be raised on their behalf and their likelihood of success. They are also likely to impact on sentencing outcomes.

Our analysis shows that the potential for the Victorian reforms to shift the focus from the psychology of the female defendant, and to challenge gender-based stereotypes around self-defence, immediacy and proportionality has not been realised. The perception of what is ‘reasonable’ self-defence continues to be shaped by stereotypes about family violence or about women who are victims of violence. The reforms to the law of self-defence have not yet been tested at trial, and women continue to plead guilty to partial defences (defensive homicide or manslaughter) rather than pursue a full acquittal on the grounds of self-defence.

The recently released consultation paper by the Department of Justice (2013) proposes that defensive homicide be abolished, and no other partial defence be introduced to replace it. The paper points out that defensive homicide is being used more often by men who kill other men, and rarely by women. It argues that abolishing defensive homicide would encourage women to pursue self-defence at trial.

However, the limited recognition of family violence and its practical realities for women in the cases we examined gives us little confidence that women will successfully be able to claim self-defence at trial. If defensive homicide is abolished and no other partial defence is established to replace it, it is likely that some women who kill in the context of family violence will receive harsher outcomes than is currently the case.

What is needed now is not only further consideration of legislative reform, but additional steps to improve understandings of family violence. Specialised training for legal professionals and increased use of expert witnesses who can provide family violence evidence are important steps that would help to ensure that women’s claims that they acted in self-defence are more comprehensively assessed by legal counsel, judges and juries.

Our research highlights that a sustained effort is required to change legal culture and achieve access to justice for women who kill an abusive partner.

References

Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission 2010, Family Violence–A National Legal Response. ALRC Report 114, Australian Law Reform Commission

Chan, A & Payne, J 2013, Homicide in Australia: 2008–09 to 2009–10 National Homicide Monitoring Program Annual Report, Australian Institute of Criminology monitoring reports no. 21, Canberra

Department of Human Services (DHS) Victoria 2012, Family violence risk assessment and risk management framework and practice guides 1-3, edition 2, DHS Melbourne

Hulls, R (Attorney-General) 2005, Media Release, 4 October 2005, Office of the Attorney-General Victoria

Polk, K 1994, When men kill: scenarios of masculine violence, Cambridge University Press, Melbourne

Toole, K. 2012, ‘Self-Defence and The Reasonable Woman: Equality Before the New Victorian Law’ Melbourne University Law Review, no. 36, pp.251-286

Victorian Law Reform Commission (VLRC) 2003, Defences to homicide: options paper, VLRC, Melbourne

VLRC 2004, Defences to homicide: Final report, VLRC, Melbourne.

Endnotes

1 The case of Heather Osland, who was found guilty of murdering her violent husband in 1996 and sentenced to 14 years’ imprisonment, was cited as an example of the need for law reform (VLRC 2002, pp. 7-8).

2 The VLRC sought to encourage evidence from a ‘broad range’ of experts, including family violence workers and those with knowledge of current research in the field (VLRC 2004, para 4.131).

3 These are the cases that we have been able to locate using media accounts, sentencing judgments and transcripts of plea hearings and criminal trials.

4 In that case, the defendant stated that the killing was in response to the deceased allegedly having indecently assaulted her child (R v Downie [2012] VSC 27).

5 R v Black [2011] VSC 152 paragraph 17

6 R v Black [2011] VSC 152 paragraph 18

7 R v Black [2011] VSC 152 paragraph 6

8 R v Black [2011] VSC 152 paragraph 12

9 R v Black [2011] VSC 152 paragraph 14

10 Transcript of plea, 4 April 2011, p.27

11 R v Black [2011] VSC 152 paragraph 7

12 R v Black [2011] VSC 152, paragraph 8

13 R v Black [2011] VSC 152, paragraph 22

14 R v Black [2012] VSCA 75 paragraph 29

15 Transcript of plea, 4 April 2011, p.66

16 For example, R v Black [2011] VSC 152, paragraph 13

17 A similar point made is by Kellie Toole (2012)

18 Transcript of plea, 4 April 2011, p.56

19 Transcript of plea, 4 April 2011, p.52

New research on men who kill

DVRCV along with Dr Danielle Tyson and Associate Professor Bronwyn Naylor from Monash University has received funding to continue our research on the impact of domestic homicide law reform. A major grant from the Legal Services Board will enable us to focus on cases of men who kill a female partner, as well as to continue our analysis of cases of women who kill men. Through an in-depth analysis of selected trial, plea and sentencing transcripts, we will examine understandings of family violence, defences used, sentencing outcomes, the use of expert witness evidence, indications of gender stereotyping and the use of provocation-type narratives.

The final report of this research will be published in 2015.

Submissions to the current review into defensive homicide are due next Wednesday 27 November. For more information see the Department of Justice’s website, or contact us.

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