Walking in Her Shoes

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

“…The inability of the law to accommodate women who kill in the context of domestic abuse has been extensively criticized in adversarial criminal justice systems. A common criticism is the gender-biased operation of homicide laws; as defenses to homicide have been developed around male experiences of violence, their interpretation and application have largely excluded abused women from accessing relevant defenses (e.g., see Fitz-Gibbon & Vannier, 2017;Hopkins & Easteal, 2010;Mechanic, 2023). 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).…”

“…In Australia, the common law test of self-defense is set out in Zecevic v. DPP (1987) and requires that the accused honestly believes that their actions were necessary in self-defense and that there were reasonable grounds for this belief. While the common law test no longer requires a threat to be imminent, or that the response be proportionate to the threat, imminence and proportionality continue to bear on the assessment of the existence of the reasonableness of the belief (Hopkins & Easteal, 2010) and are likely "to continue to inform the way in which self-defence is applied in practice" (Law Reform Commission of Western Australia [LRCWA], 2007, p. 168). Therefore, to address barriers abused women often face in establishing their actions in self-defense, Victoria and Western Australia have both expanded the law of self-defense by introducing provisions expressly stating that imminence is not a legal requirement for self-defense to apply, Crimes Act 1958 (Vic) s322 M(1)(a); Criminal Code Compilation Act 1913 (WA) s248(4)(a).…”

“…The new partial defense was designed to create a defense for "victims of domestic violence who, fearing for their lives, kill their abusers in circumstances that would otherwise constitute murder" (Edgely & Marchetti, 2011, p. 125), and unlike self-defense in Queensland, 1 it may be available for those who kill in non-confrontational circumstances. However, while the defense eliminates the need for establishing an imminent threat, it has been criticized for operating as partial defense (Edgely & Marchetti, 2011;Hopkins & Easteal, 2010). This reduces a murder conviction to manslaughter, rather than a complete acquittal.…”

“…To provide a better understanding on the social realities of living within an abusive relationship, feminist scholars have called for a shift away from BWS evidence toward the use of social context evidence ( Bradfield, 2002 ; Butler, 2016 ; Douglas, 2015 ; Terrance et al, 2012 ) or evidence on coercive control ( Midson, 2016 ; Tyson, 2020 ). 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.…”

Intimate partner homicide and DV victims: A case for compassionate sentencing

“…21 Secondly, the failure of homicide defences to appropriately reflect a woman's reduced culpability for killing in the context of DV is a well-documented issue in the criminal justice system. 22 Such women often enter guilty pleas for manslaughter in order to avoid a murder charge and the difficulties associated with successfully arguing self-defence in this context. 23 This may subsequently limit the factual basis upon which a sentence is determined, thus distorting the perceived culpability of offenders.…”