When the Bough Breaks – Defences and Sentencing Options Available in Battered Women and Similar Scenarios under German Criminal Law

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

“…An abused defendant also cannot rely on the excuse of necessity of their conduct, § 34 StGB. Necessity requires that the interest protected by the offender’s action must outweigh the interests infringed upon by their conduct (Reimann & Zekoll, 2005) and therefore calls for a balancing of competing interests (Bohlander, 2011; Lauterwein, 2013). Yet, the defense does not apply in homicide cases because the protected interest, here life of the defendant and her children, and the infringed interest, here life of the abusive husband, cannot be weighed against each other as no life is deemed worth more than another and no life therefore can be justifiably sacrificed to save another (Lauterwein, 2013; Reimann & Zekoll, 2005).…”

“…Law reform in this area in Germany may therefore also constitute an important first step in the right direction. On the possibility of future law reform Bohlander (2011) points out that “the need for doctrinal coherence much prized in the German context does, however, present challenges for further reform efforts” (p. 270). Gropengiesser (2008, p. 192) concludes on the issues thatthe traditionally high doctrinal systemic sophistication of the German criminal law and the consequences of unprincipled tinkering on such a system should make the legislator wary of shots from the hip in order to appease understandable requests from pressure groups as part of the day-to-day politics.…”

“…Gropengiesser (2008, p. 192) concludes on the issues thatthe traditionally high doctrinal systemic sophistication of the German criminal law and the consequences of unprincipled tinkering on such a system should make the legislator wary of shots from the hip in order to appease understandable requests from pressure groups as part of the day-to-day politics. (translated in Bohlander, 2011, p. 270)…”

“… 16. Some authors argue that abused defendants may rely on diminished responsibility, StGB § 21, in cases where they kill their abusers with the consequence of a sentencing reduction of the mandatory life sentence for murder (Bohlander, 2011). This, however, requires a mental defect which cannot automatically be established simply because a woman is in a long-term abusive relationship.…”