“Till Death Us Do Part”: Homicide Defenses for Women in Abusive Relationships—Similar Problems—Different Responses in Germany and Australia

Abstract

Cases in which women have killed their sleeping or otherwise inattentive abusive partners to "escape" domestic violence have arisen in both Germany and Australia. In this context, the availability of defenses including provocation and self-defense for abused defendants is controversially debated due to their traditional application and interpretation. It appears that these cases have driven law reform and changed judicial interpretation of defenses to some degree in Australia, whereas the situation in Germany remains stagnant. This article argues that while the situation in Australia is not without criticism, the recent legislative developments aimed at affording abused defendants greater access to defenses could serve as food for legal thought in the German debate.

Australia's Divergent Legal Responses to Women Who Kill Their Abusive Partners

“…This finding is consistent with previous research that examined the impact of the 2005 Victorian reforms (Kirkwood et al, 2013;Tyson et al, 2017). As such, despite the "law on the books" providing greater access to self-defense (Braun, 2017(Braun, , p. 1191, the expanded law of self-defense in legislation has still not been interpreted or applied in practice.…”

“…For instance, while the traditional association of self-defense as a one-off spontaneous encounter has comfortably accommodated men killing other men of relatively equal strength, it has made it difficult for women who kill in response to prolonged domestic abuse to successfully argue the defense (Victorian Law Reform Commission [VLRC], 2004). Due to discrepancies in size and experience of abuse, women who kill an abusive partner may do so in non-confrontational situations when the threat of harm is not immediate, such as when their partner is asleep or has their back turned (Braun, 2017;Hopkins et al, 2018;VLRC, 2004). Abused women also frequently use a weapon to protect themselves and, in some cases, enlist the assistance of others to kill their violent partners (VLRC, 2004).…”

“…Rather than focusing on the individual's psychology, such evidence is intended to convey the wider social context in which the homicide took place and the objectively dangerous nature of serious domestic violence. However, scholars have highlighted the challenges and difficulties abused women have faced in having such evidence admitted in Australia and overseas ( Butler, 2016 ; Chin, 2020 ; Sheehy, 2018 ; Tarrant et al, 2019 ).…”