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Legitimising lethal male violence: why defensive homicide needs to be abolished

Research published last week revealed that from November 2005 to September 2012, 18 of the 22 cases of defensive homicide in Victoria resulted from homicides perpetrated by a male offender upon a male…

The offense of defensive homicide in Victoria is said to allow for victim-blaming and misuse of the justice system - should it be abolished? AAP/Dave Hunt

Research published last week revealed that from November 2005 to September 2012, 18 of the 22 cases of defensive homicide in Victoria resulted from homicides perpetrated by a male offender upon a male victim.

Just one case during this period involved a male perpetrator and a female victim. In contrast to the dominant use of the offence by males, there have been just three female offenders convicted of defensive homicide in the first seven years of the offence’s operation.

In November 2005, the Victorian government abolished provocation as a defence to murder, but introduced the charge of defensive homicide. The offence operates whereby a person who kills another with the belief that their act was necessary to defend themselves or another person, but has no reasonable grounds for that belief can be convicted of defensive homicide.

Not intended as a replacement for the provocation defence, defensive homicide was designed to provide a safety net for women who kill in response to prolonged family violence, but are unable to raise the strict requirements of a complete defence of self-defence.

But despite the government’s best intentions, in the seven years since the law was implemented, battered women have not overly benefited from this new offence.

The offence has been used predominately in cases of male on male violence. This is not surprising given that the majority of homicides in Victoria are committed by one man upon another. However, it does raise one question: is the offence – like its predecessor of provocation - operating to diminish the seriousness of lethal male violence through convictions less than murder?

The disjuncture between the theoretical use for defensive homicide, and the cases in which it has been successfully argued, was recognised in August 2010 when the former state government began a review of the offence’s operation. But since the change of Victorian state leadership in November 2010, the review has stalled.

While the current government has indicated that the review will be completed, it is unclear when it will be finalised and what the recommendations for reform will be. What is clear is that the operation of defensive homicide should not continue without review, reform, and - in all likelihood – abolition.

The fact that narratives of victim-blaming still exist - despite the end of provocation as a defense - demonstrates the need to now abolish defensive homicide. The ramifications of victim-blaming were shown in the trial of Luke Middendorp.

Middendorp was convicted in May 2010 of the defensive homicide of his estranged girlfriend, Jade Bownds. While Middendorp is the only male intimate homicide offender to successfully raise defensive homicide to date, the case provides a clear warning that victim-blaming narratives continue to stain our courts.

On September 1, 2008, Middendorp killed Bownds by stabbing her four times in the back. At trial Middendorp did not contest that he had fatally stabbed Bownds. Rather, the trial was centred on whether he did so in self-defence and whether his perception that he was defending himself was reasonable. In seeking the answers to these questions it was arguably Bownds – not her undisputed killer – who was put on trial.

This is evident from the descriptors used to describe Bownds throughout the trial. The judge, defence and prosecution counsel repeatedly referred to her as a “difficult” woman, implying she was likely to have contributed to her own death. The further denigration of Bownd’s character is captured in the prosecutor’s description of her as “no angel” and the defence counsel’s words in his closing address. He said that while it was not in his nature to:

…speak ill of the dead…at times it is our duty to do so. This is one of those times.

These are only two examples of the many ways that Bownds' victim status was denied throughout the trial and in sentencing.

What the trial neglected to consider in the same level of detail that was paid to Bownds' personal history was the grim reality of the couple’s history of domestic violence. The problems associated with the former provocation defence were demonstrated once again, as attention shifted to victim-blaming.

The tendency to blame the victim can be found in other instances of alleged defensive homicide. In many of the cases since 2005 there was no warranted threat posed by the victim to their attacker and, in several of these instances, a verbal exchange between the offender and the victim was cited as enough to incite the offender’s fear.

The case of wife killer James Ramage led to the Victorian government’s abolition of the provocation defence. AAP/Glenn Hunt

When the provocation defence was abolished, it was highlighted that any legal avenue that allows for the words of a deceased victim to be “put on trial” is highly concerning. It is much the same with defensive homicide and for this reason alone, it has no place in the Victorian criminal justice system.

Beyond victim-blaming, the operation of defensive homicide has also served to minimise the seriousness of male lethal violence perpetrated with knifes. Convictions for defensive homicide in this context undoubtedly conflict with the government’s expressed intention to show a “tough on crime” approach to knife crime, which aimed to curb the knife culture amongst young Victorian males.

A conviction for defensive homicide in cases where a knife was not only used but was brought to the scene of the crime certainly trivialises the seriousness of this form of lethal violence.

What is needed is clear. The government must prioritise their review of defensive homicide and end the lengthening list of injustices.

For a state that so adamantly recognised the injustice of the verdict in the Ramage case and, in particular, the posthumous treatment of James Ramage’s estranged wife and victim, Julie Ramage – it is important that we continue to take steps to ensuring that alternative offences, such as defensive homicide, cannot be abused by violent men in their avoidance of a murder charge.

When finalising their review, the government should abolish defensive homicide. It is an alternative offence to murder that has allowed for manipulation, victim-blaming and misuse of the justice system. It has no place in our legal system.

Join the conversation

18 Comments sorted by

  1. John Crest

    logged in via email @live.com.au

    I didn't know Ms Bownds of course, but isn't it possible (indeed, probable), that if the defence, prosecution and judge all voluntarily deem it fit to refer to her as a "difficult woman", she was?

    And if so, perhaps simply stating facts is just that and not part of a "victim blaming narrative"?

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    1. Kate Fitz-Gibbon

      Lecturer in Criminology at Deakin University

      In reply to John Crest

      Hi John - certainly but the question is what relevance her 'difficult' character had to an assessment of the lethal violence perpetrated against her, if not to imply blame? The judge did note in sentencing that the verdict of defensive homicide - rather than murder- may in part reflect the jury's negative view of the victim. I think this is problematic.

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    2. Peter West

      CEO at Property

      In reply to Kate Fitz-Gibbon

      It seems that as you state it was a "safety net for women who kill", and males have used this as a ruse to be charged with a lesser crime than murder, then the whole concept was flawed from the start.
      To my mind lessening of culpability based on sex in any circumstance is a totally wrong way to approach the law.
      Surely, the facts, the extent of provocation (by male or female), in determining what charge would be brought would have been covered by the degrees of murder/manslaughter? (eg 1st degree murder, etc), or if not available there should be degrees of culpability depending on the facts of the case. Laws that are biased towards either sex (except in obvious situations), create anomalies and inequities.

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    3. Sam Han

      Lawyer; LLM student

      In reply to Peter West

      Peter,

      In Australia, we do not have varying "degrees" of murder, as they do in the USA. Rather, we have murder, and pretty much every other homicide is manslaughter. This differs between jurisdictions, with simpler distinctions for those that have a Criminal Code, and more numerous and nebulous distinctions for the others.

      I don't know much about Victorian law, but I'll try my best...

      Defensive homicide is something unique to Victoria. It's basically murder, but downgraded to "homicide…

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    4. Sam Han

      Lawyer; LLM student

      In reply to Kate Fitz-Gibbon

      Dr Fitz-Gibbon,

      "...question is what relevance her 'difficult' character had to an assessment of the lethal violence perpetrated against her, if not to imply blame?"

      The same question could be asked if the defensive homicide offence was availed by female defendant for killing a male victim. One could easily replace the word "her" with "his", and the victim will still be blamed.

      Maybe the real question is, "what is the alternative"? You can either have this defensive homicide offence as an…

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    5. Kate Fitz-Gibbon

      Lecturer in Criminology at Deakin University

      In reply to Sam Han

      Hi Sam - thank you for your comment. You are certainly right - victim blaming can occur in cases involving a male or a female offender.

      I think the best way forward is for the government to abolish the offence and to allow for differences in culpability to be taken into account at sentencing. In a state with wide ranging discretion in sentencing for murder and manslaughter, I think judges are able to reflect the individual offender culpabilities and case facts adequately at sentencing. Importantly, because we enjoy such discretion in sentencing we should not have to risk having alternative avenues to murder which are frequently manipulated leading to unintended consequences in practice.

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    6. John Crest

      logged in via email @live.com.au

      In reply to Kate Fitz-Gibbon

      I'm sure it was to apportion (at least some measure) of blame.

      And in the context of this case, perhaps that was warranted?

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    7. David Bentley

      logged in via LinkedIn

      In reply to Kate Fitz-Gibbon

      I tend to agree on the point that an offense such as this is not warranted in an environment where the sentencing framework is flexible and thus the facts of a case can be appropriately considered in the determination of the level of punishment. Unfortunately, however, it would seem to me that Victoria is increasingly (and unfortunately) moving in a direction of reducing the judiciary's discretion in this area. Elimination of suspended sentences and implementation of mandatory sentences for particular…

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  2. Adam Blanch

    Provisional Psychologist

    The author does not appear to be upset by what she sees as the legitimisation of violence per se, but by the fact that the law equally applies to men as to women. Apparently we should apply our laws in a sexist way, profiling men automatically as the perpetrators and women automatically as the victims. That is after all what Kate means when she titles her piece with 'male violence' - not violence that happens to be committed by men for one reason or another, but violence that is committed by men…

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    1. Kate Fitz-Gibbon

      Lecturer in Criminology at Deakin University

      In reply to Adam Blanch

      Hi Adam - just to clarify, this article has focused predominately on lethal 'male' violence because of the dominant use of this offence by male offenders as opposed to female offenders.

      I do not argue that men commit violence because they are 'men' as you suggest but rather my research examines the legal responses to male perpetrated lethal violence and in doing so, I have argued that it is important that alternative offences to murder (such as defensive homicide) often have unintended consequences in practice. In the context of this article, this refers to the unpredicted dominant use of defensive homicide by male offenders.

      I have written about the use of the offence by female offenders in the longer article published last week in the Griffith Law Review, however, because of space constraints I focused on male perpetrated violence for this piece as I do see the use of the offence in that context as particularly concerning and warranting of further review.

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    2. Adam Blanch

      Provisional Psychologist

      In reply to Kate Fitz-Gibbon

      All articles about violence are about male violence Kate. It's part of how feminism demonizes men to maintain the male perpetrator/female victim polemic on which feminism has built its moral authority. Your piece is classic feminism. You use the term male violence, which implies that it is being done by the generic 'men' and has something to do with them being men. You speak about men entirely in the role of the perpetrator,and women entirely in the role of the victims. You imply that men's use of…

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  3. Tim Benham

    Student of Statistics

    The author seems to have a problem with the same laws applying to men and women.

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    1. Kate Fitz-Gibbon

      Lecturer in Criminology at Deakin University

      In reply to Tim Benham

      Hi Tim, not at all - in fact I would not be supportive of a law that was gendered and applied to one gender over another. What concerns me is the unintended ways in which the offence of defensive homicide has been used since its introduction in 2007. It just so happens that this is predominately related to male rather than female offenders - hence the focus of this article.

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  4. Chris Lloyd

    logged in via Facebook

    The original notion of defensive homicide seems just. If I fear for my safety and see no alternative, I am ethically justified in killing the one who threatens me - or so it seems to me. By its nature though it involves blaming the victim - no question. Surely the point where homocide is defensive homocide could be established by case law, without abandoning the whole idea.

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    1. Tim Benham

      Student of Statistics

      In reply to Chris Lloyd

      If you are "ethically justified in killing the one who threatens me" why should you be locked up at all? what happened to self-defence?

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  5. Pat Moore

    gardener

    Thanks Kate for your attention to this. Though perhaps not an outright abuse of legal process, the use of this law has definitely proved to be in application (as demonstrated by your examples) a legally expeditious contravention of the intent and spirit of the original law; a defence lawyer's means of achieving a lesser charge for their client. Especially sadly ironic and insidious considering it was presumably originally conceived as concession to the desperate, driven self-defence of the long abused woman whose husband/violator got to her first and was able to employ the law to lessen the punishment for his crime of her murder.

    Proving once again that the law is an ass? And the winner takes all?

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  6. Peter Rutherford

    logged in via email @yahoo.com.au

    Hello Kate, Have you ever been in a situation where you are in absolute fear of your life? In those circumstances would you accept death or do everything you could to stop, disable & in the attempt to save your life, perhaps kill your assailant? If this fate did befall you, would you then be opposed to this defence or just accept 20 years in jail for murder? Do you think it better for the 3 women to cop a plea and do 10 to 15 years, rather than use this defence. As for the Middendorp case, perhaps it was some creative Deakin law graduate who concocted a scenario, accepted by the court, to explain how Bownds backed into a knife 4 times while the defendant was ‘defending’ himself. You can have any laws you like, however, if juries and judges are prepared to accept fanciful scenarios dreamt up by defence lawyers, as fact, you can have any law you want, but guilt will not necessarily fall where it should.

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    1. Kate Fitz-Gibbon

      Lecturer in Criminology at Deakin University

      In reply to Peter Rutherford

      Hi Peter - I think the scenario that you have described at the start of your comment would likely fall under a complete defence of self-defence. I do think this is a very important defence and am certainly not challenging its place in the Victorian justice system. In cases of defensive homicide, however, I think the law would be better placed to consider these cases as murder and where appropriate, apply a more lenient sentence. We are fortunate in Victoria to have a discretionary sentencing system…

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