Defensive homicide – too soon to say

By Jane on September 20, 2010 in Blog

The offence of defensive homicide was introduced as a law reform by the Victorian Department of Justice in 2005. However, criticisms of the new offence has led to its review.

The Department’s first step was to publish a discussion paper in August 2010 and call for a response from community, legal professionals and family violence experts. We worked with six other individuals and organisations on a joint submission.

What is the offence of defensive homicide?

According to Attorney-General Rob Hulls, the offence of defensive homicide:

takes into account other circumstances where a person may kill to protect themselves, for example, when a person kills in response to long-term family violence.

…applies when a person believed it was necessary to kill to protect themselves (or another) but that belief was ultimately not reasonable.

A person can be charged with the offence of ‘defensive homicide’. It also operates as an alternate verdict to murder for a jury.

The offence carries the same penalty as manslaughter of up to 20 years imprisonment.

Why introduce this new offence?

Under Victorian law before 2005, provocation was a defence to a charge of murder. ‘Provocation’ could reduce the charge of murder to manslaughter and halve jail time.

What is provocation? Blogger J Man explains:

For the benefit of those who aren’t legally minded, provocation meant that a person could say that they were provoked into an act of extreme violence and if the court accepted this argument then a murder charge could be reduced to manslaughter.

… One of the reasons for abolishing provocation as a defence was that men were getting off with manslaughter even when there had been a history of abuse or family violence.

In 2005, the Victorian government abolished the defence of provocation. Victoria’s Attorney-General Rob Hulls announced that accused murderers could no longer claim they had been provoked to kill.

At the same time, the offence of defensive homicide was introduced to make sure there was a ‘safety net’ for women who killed violent partners. Of the 13 people convicted of defensive homicide since 2005, 12 were all males killing other males, and mostly not in family violence situations.

What we think

To date, we think it’s too early to tell if this new ‘safety net’ of the offence of defensive homicide is necessary because no female defendants have been to trial under the new laws in relation to a domestic homicide.

Our joint submission for the Victorian Department of Justice’s review:

cautiously recommends the offence of defensive homicide be retained at this stage – on the provision that homicide trials be monitored closely over the next 24 months to give stakeholders another opportunity to review more cases in order to determine whether the rationales for the 2005 reforms are being realised.
recommends that the Department of Justice monitor women’s use of self-defence in trials as they occur to ascertain whether, and to what extent, the legislative changes bring about justice for women.
suggests that in order to fully review defensive homicide we believe it is necessary to also review the application of the 2005 self-defence reforms.

A call for political and public debate

Beyond our responses to the questions sought by the Discussion Paper, we believe it is timely to start a public and political debate about a more effective cut-through approach to the way family violence is addressed within the legal system.

Special List of legal expertise

We also think it is it time to declare family violence and domestic homicides a special area of expertise within the law.

Magistrates and Judges, trained in family violence and its relevance to homicide laws, would be placed on a List that would be used to hear all committal hearings, trials and sentencing hearings that involve a domestic homicide.