Changing provocation law could legitimise lethal acts of domestic violence

The O'Farrell government must reconsider their recommendation to retain a restricted version of the controversial partial defence of provocation. The government has released a draft exposure bill recommending reform of a partial defence that has long attracted criticism and community concern. Under the proposed reform, the defence will be significantly restricted and will be renamed the "partial defence of extreme provocation".

The abolition of defensive homicide : a step towards populist punitivism at the expense of mentally impaired offenders

The offence of defensive homicide was abolished in Victoria in November 2014, following a widely held perception that it was being abused by violent men. While primarily associated with battered women who killed in response to prolonged family violence — but who were unable to establish their offending as self-defence — a less publicised rationale underpinning the introduction of defensive homicide was to provide an alternative offence for offenders with cognitive impairments not covered by the mental impairment (formerly the insanity) defence. Cognitive impairments are complex and varied in their nature and symptomatology. Offenders presenting with cognitive impairments therefore require an appropriate range of legal responses to capture the nuances and appropriate moral culpability of their conduct. Drawing from an analysis of the cases of defensive homicide heard over its 10–year lifespan, this article contends that the abolition of defensive homicide did not adequately take into consideration the potential impacts on individuals whose mental conditions are not typically covered by the restrictive mental impairment defence. We further argue that the decision to abolish defensive homicide was driven by dominant, populist voices, without sufficient attention given to the offence’s potential to achieve the aims underpinning its enactment, including providing an alternative offence for women who kill in response to prolonged family violence.

‘Till death do us part : judging the men who kill their intimate partners

This paper examines the construction of masculinity in judge’s sentencing remarks across seventeen cases of male perpetrated intimate femicide sentenced between March 2005 and May 2007 in the Victorian Supreme Court. Using a narrative analysis of sentencing transcripts it investigates how ideal understandings of hegemonic masculinity are used in judicial decision making to condemn or sympathise with male offenders of intimate femicide. The findings illustrate the profound influence that traditional understandings of masculinity and fatherhood still have on current sentencing practises despite the current climate of homicide law reform both within Australia and overseas. Whilst this paper did not directly assess the impact of recent homicide law reforms, specifically provocation, it is explicitly concerned with the continued influence of gender norms and bias at the sentencing stage of the legal process. As such, it provides a preliminary illustration of the key role that judges play in advocating or rejecting change within the criminal justice system, and more broadly legitimising attitudes about male violence against women throughout society. In condoning the use of extreme violence, in any context, judges send a message to society that such behaviour is either generally or specifically acceptable and accommodated within a legal framework.

Provocation in New South Wales : the need for abolition

Over the past two decades significant debate has emerged surrounding the operation of the partial defence of provocation. Such debates have led to its abolition in several Australian and international jurisdictions where Government and Law Commission bodies have argued that provocation has operated in a gender biased way that is no longer reflective of community values and expectations of justice. In contrast to the Australian states of Tasmania, Victoria and Western Australia, who have transferred consideration of provocation to sentencing, New South Wales (NSW) has retained provocation as a partial defence to murder. Drawing upon in-depth interviews conducted with legal stakeholders and an analysis of recent case law, this article considers whether the operation of provocation in NSW is still in the best interests of justice, and, specifically, whether in practice it privileges one gender above the other. This research concludes that the continued operation of provocation in NSW raises key issues surrounding the legitimisation of male violence against women, the denial and minimisation of the harm caused by lethal domestic violence, and the continued inability of the law to appropriately respond to women who kill in the context of prolonged family violence.

Divergent directions in reforming legal responses to lethal violence

Over the past three decades, debates about legal reforms to lethal violence have been evident across Australia and in other jurisdictions. While these debates have often arisen from shared concerns, the resulting reforms have taken different approaches to reformulating the defences to murder. This article considers the divergent approaches taken to reform and the process of law reform itself, documenting the significance of localised histories and high profile cases. It also questions whether reforms to the defences to murder have responded adequately to the varying contexts within which men and women kill. The analysis reveals the limitations of law reform inquiries that fail to take a comprehensive approach to considering the operation of the laws in this area. The article calls for ongoing critical analysis of homicide within and beyond the law.

Murder or manslaughter? NSW ponders the provocation problem

In Parliament last week, NSW took steps towards better understanding, and potentially solving, the problems posed by the partial defence of provocation. This comment analyses key arguments presented to the Parliamentary Select Committee for the retention and abolition of the partial defence of provocation.

Legal loophole protecting violent men : why the defence of provocation needs to change

This comment analyses the successful use of the provocation defence in New South Wales in cases of male perpetrated intimate homicide. In doing so, it makes an argument for why the defence should be abolished.

Time to act - provocation must be rejected as an excuse for murder

This opinion piece provides an argument for why the Select Committee of the New South Wales Parliamentary Inquiry into the partial defence of provocation should reccomend abolition of this controversial partial defene to murder. 

The mandatory life sentence for murder : an argument for judicial discretion in England

In 1965, alongside the abolition of capital punishment, a mandatory life sentence for murder was implemented in England and Wales. The mandatory life sentence served as a signal to the public that the criminal justice system would still implement the most severe sanction of life imprisonment in cases of murder. Nearly 50 years later, this article examines whether the imposition of a mandatory life sentence for murder is still in the best interests of justice or whether English homicide law would be better served by a discretionary sentencing system. In doing so, the article considers debates surrounding the political and public need for a mandatory life sentence for murder by drawing upon interviews conducted with 29 members of the English criminal justice system. This research concludes that a discretionary sentencing framework is required to adequately respond to the many contexts within which the crime of murder is committed.

Effects of the 2005 reforms on legal responses to women who kill intimate partners

2015 marks a decade since the release of the Victorian Law Reform Commission's Defences to Homicide: Final Report. The Commission's Final Report recommended major changes to the law of homicide in Victoria and in 2005, the Victorian government responded to the 56 recommendations by implementing the largest package of homicide law reforms since the abolition of the death penalty. This book brings together leading scholars, legal practitioners and the former Victorian Attorney-General to provide a comprehensive examination of the Victorian experience of reform, including its perceived successes and failures. This is a controversial area of the law that continues to present challenges in practice. Since the 2005 reforms further reform of the law has occurred in Victoria and a range of divergent approaches to homicide law reform have been introduced and animated debate across Australia and internationally. With such a high level of law reform activity nationally this book provides a timely analysis of the extent to which the Victorian reforms have improved legal responses to lethal violence and with what effect in practice. To enhance this analysis the book also looks internationally to consider the operation of homicide law in England and Wales, Canada and New Zealand and what lessons could be gained from an Australian perspective from differing approaches to reform.

This book explores a number of issues concerning the operation of the law of homicide, sentencing practices, the role of the media, evidence reforms, legal culture, political influences and future reform challenges for Victoria and other Australian jurisdictions. In examining all aspects of the 2005 homicide law reforms, the book draws on the views of those who were involved in reviewing the law of homicide in Victoria, those who recommended and implemented reform, and those who have played a key role in the monitoring and evaluation of the law post-reform in Victoria but also more widely in Australia and internationally. The resulting analysis will be of great interest to law, criminology and socio-legal scholars as well as legal practitioners and law reformers in Australia and comparative international jurisdictions.