In the vast majority of cases where women kill their partners, there is a history of domestic violence.
Isolation as well as often cyclical psychological and physical abuse means leaving home is not only difficult, but can be deadly. Almost half of all spousal homicides committed by men involved killing women who had left them, or were attempting to do so.
This can drive desperate women to attack or kill their partner. But when battered women fight back, the law does not always truly take into account the difficulty of their circumstances.
Murder or self-defence?
In court after a women kills her partner following domestic violence, a murder conviction or complete acquittal are the two least likely outcomes.
Analysis by the University of Tasmania’s Rebecca Bradfield looked at 65 cases between 1980 and 2000 in which a woman killed her male spouse after domestic violence. Only 6 cases or 9% resulted in a murder conviction.
At the other extreme, acquittals are nearly as rare: in Bradfield’s analysis, only 10 cases (15%) resulted in an acquittal. Most were on the basis of self-defence and usually the act conforms with the traditional common law model of an active struggle.
The case of Susan Falls, who was acquitted of killing her sleeping husband in 2010 after he threatened to kill her daughter, is a rare exception.
Many paths to a manslaughter conviction
The most common result in these cases is a manslaughter conviction, generally on the basis of either provocation or an absence of intent (34% and 35% respectively in Bradfield’s analysis).
But the way women might defend themselves against a manslaughter charge varies significantly between cases and across jurisdictions.
The partial defence of provocation is currently available in the ACT, NSW, Northern Territory, Queensland and South Australia. In contrast to self-defence which sees the killing as a justified response, provocation regards the reaction as understandable in light of the circumstances.
The criticism of this defence is that it tends to cater for cases where the “trigger” is a one-off angry encounter. It doesn’t adequately acknowledge a battered woman’s drawn-out experience of fear, despair and anger in an ongoing abusive relationship.
The partial defence of diminished responsibility (or substantial impairment of the mind) is available in the ACT, NSW, Queensland and the Northern Territory. However, this appears to be argued or accepted only rarely – there were no convictions on this basis in Bradfield’s analysis, and such cases only accounted for four out of 44 sentences imposed for manslaughter by substantial impairment in NSW between 1999 and 2010.
In NSW, South Australia, Victoria and Western Australia, excessive self-defence may also result in a manslaughter conviction. A genuine belief is sufficient to warrant a verdict of manslaughter, even where the person uses more force than a reasonable person would consider necessary in the circumstances.
What is seen as an overreaction (and unreasonable) by some may be appropriate in the context of the violence the woman has previously experienced. However, it appears to be rarely used, accounting for only two out of 36 sentences or 5% in NSW between 2002 and 2010.
After 13 convictions of men, in March 2011, Eileen Creamer became the first woman convicted under this charge and was sentenced to 11 years’ imprisonment, with a non-parole period of seven years. Shortly after, in April 2011, Karen Black pleaded guilty to defensive homicide and received a sentence of nine years. The third case involving a woman who killed her violent partner resulted in a sentence of seven years, with a non-parole period of four years and nine months.
Given that Bradfield’s analysis indicated that the median sentence for manslaughter in 55 cases around Australia where a woman killed her partner was three years and 10 months, the Victorian law has so far hardly achieved a more just response for battered women. Recent research has also confirmed that the model does not operate in the way originally envisaged and also offers limited transparency and accountability. The Victorian Government reportedly plans to change the law to minimise the risks of secret deals by prosecutors, although it is not yet clear the extent to which this will impact on female offenders.
In 2005, Victoria also introduced a new provision which now allows 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 battered woman’s actions must be evaluated by reference to “what it must really be like to live in a situation of ongoing violence”.
In February 2010, Queensland introduced an offence of killing for preservation in an abusive domestic relationship, which, like the Victorian offence, reduces murder to manslaughter. This is particular significant in the Queensland context, where murder carries a mandatory life penalty.
Importantly, the legislative definition of “abusive domestic relationship” recognises the victims’ reality of violence, since it acknowledges that “a history of acts of serious domestic violence may include acts that appear minor or trivial when considered in isolation.’ However, this section is yet to be tested in case law. Like defensive homicide in Victoria, it will still result in a manslaughter conviction, which may deny women in such circumstances true justice.
This needs to change and jurisdictions other than Victoria should adopt legislation which ensures engagement with the experience of battered women in assessing their claims to self-defence instead of manslaughter.
The need for expert evidence
There was no mention in the sentencing remarks for Creamer or Black of “battered women syndrome” (BWS), which has been recognised as a sub-category of Post Traumatic Stress Disorder.
It was considered by the High Court in the case of Heather Osland, and has been used in a number of Australian cases, including Falls.
The concept of BWS has been the subject of critique – including that it is something women “suffer” from – but has served to broaden the interpretation of what is “reasonable” and “self-defence”.
But expert evidence here is key, with or without reference to BWS, both in arguing defensive homicide and in trying for an acquittal.
In its report on defences to homicide, the Victorian Law Reform Commission advocated that judges and jurors need to learn what it is really like to live in a situation of ongoing violence.
Judges and jurors should be introduced to evidence from psychologists and psychiatrists, as well as those with extensive experience at the “coalface” of domestic abuse. This kind of evidence can contextualise what might otherwise appear to be a history of discrete incidents of violence.
Courts need to examine the history of evidence of what it is really like to live under the constant shadow of abuse, rather than just an atomised account.
Since a battered woman’s experiences are generally outside the common understanding of the average judge and juror, it is only with an appreciation of the battered woman’s reality that the reasonableness of her response can be assessed.