5. A new defence
for battered defendants

67 BECAUSE OF THE DIFFICULTY OF RELYING ON SELF-DEFENCE, some com-

mentators have recommended developing a new defence based on the circumstances of battered defendants. For instance, the South Australian Domestic Violence Council has recommended:[89]

[t]hat a new complete defence be created which can be acted upon by a defendant charged with murder where the elements of such a defence are a proven history of personal violence by the deceased against the accused or against any child or children of the accused’s household.

68 This chapter outlines three defences that have been proposed. They differ from other “new” defences, such as excessive self-defence and diminished responsibility, in that they are not currently defences in any jurisdiction and also in that they are aimed specifically at the use of force by those in abusive or tyrannical relationships. No common law jurisdiction has enacted a special defence for battered defendants. The main question is whether a special defence can offer anything that cannot be achieved by reforming or adopting existing defences, and introducing a sentencing discretion for murder.

69 The three proposals discussed in this chapter are representative and not the only alternatives that have been developed (for example, there are several versions of self-preservation). They represent three different approaches: a partial defence based on self-defence, a complete defence based on self-defence and operating parallel to it, and a broader defence that is not confined to battering relationships and which focuses not on physical abuse but on the relationship of domination.

SELF-PRESERVATION

70 A defence of self-preservation, has been proposed in New Zealand,[90] the United Kingdom,⁹¹ and Australia.[92] Proponents have put it forward in the United Kingdom and Australia as a complete defence, and in New Zealand as a partial defence reducing murder to manslaughter. One proposed New Zealand version of the partial defence would be available to:[93]

any woman causing the death of a person:

(a) with whom she has, or had, a familial or intimate relationship; and

(b) who has subjected her to racial, sexual and/or physical abuse and intimidation to the extent that she:

(i) honestly believes there is no protection nor safety from the abuse; and

(ii) is convinced the killing is necessary for her self preservation.

71 Self-preservation assesses the circumstances of the defendant objectively: did the defendant have a relationship of a certain type with the deceased and did the deceased subject the defendant to abuse and intimidation? However, the need for the use of force is assessed subjectively according to the belief of the defendant.

72 This proposal may be subject to a number of criticisms. The defence is gender specific,[94] although it is not invariably the case that domestic violence is perpetrated by men against women. Male children may be subject to domestic violence and there is also evidence of domestic violence in homosexual relationships. The type of abuse and intimidation that would attract the defence is very wide: racial, sexual and physical. It is not clear what would amount to racial abuse in the context of self-preservation. Beri suggests that it would cover making derogatory remarks to a woman about her race,[95] but it is hard to accept that this should excuse killing. No objective threshold of abuse is necessary before the defence becomes available. The defence is triggered by the subjective belief that killing is necessary for the defendant’s self-preservation, yet self-preservation is not defined.

73 On the other hand, it can be argued that a partial defence should be broadly drawn, as its purpose would be to open up a range of sentencing options for victims of domestic violence who killed their abuser in mitigating but not justifiable circumstances. The public is likely to accept the defendant’s genuine belief that it was necessary to kill to escape domestic violence at the hands of the deceased as a mitigating circumstance. The gendered nature of the defence, while problematic, does acknowledge the fact that the majority of women who kill their partners do so after experiencing years of domestic violence, while men who kill their partners generally do so in an attempt to control their partners and often after subjecting them to domestic violence.[96]

WESTERN AUSTRALIA PROPOSAL

74 The Taskforce on Gender Violence set up by the Chief Justice of Western Australia has proposed a new complete defence that would extend the concept of self-defence and exist alongside traditional self-defence. The new defence proposes that:[97]

Conduct is carried out by a person in self-defence if the person is responding to a history of personal violence against herself or himself or another person and the person believes that the conduct was necessary to defend himself or herself or that other person against the violence.

75 The Taskforce did not consider that traditional self-defence could easily be reformed to take account of the situation of battered women. The Taskforce feared that an objective assessment of the reasonableness of the defendant’s use of force would be problematic, even when applied to the circumstances as perceived by the defendant, and that the meaning of “circumstances” was likely to be confined narrowly to single incident situations.[98]

76 A new definition of self-defence for situations where there is a history of domestic violence may be justified on the ground that the danger posed by repeated violence is qualitatively different from that posed by a single incident of violence and should be assessed by a different standard. A history of personal violence is highly predictive of future violence.[99] The threat to the victim and the proportionality of the victim’s response cannot be judged solely against the immediate threat, as it can where the danger is limited to a single incident. Alternatives to the use of force that may be reasonable and realistic in a situation of one-off danger may not be so in a situation of repeated violence. However, while a broader view of the danger facing the defendant is to be welcomed, it does not follow that the necessity for the use of force should be assessed solely on the basis of the defendant’s perception. Where the defendant’s reaction is objectively unreasonable it may be seen as unacceptable to excuse the defendant’s act completely, even if he or she genuinely believed it was necessary. A partial defence may be more acceptable.

TYRANNICIDE

77 A very different defence, tyrannicide, has been proposed by Jane Cohen.[100] This defence is not intended to include all battered defendants but is specifically aimed at those who are attempting to free themselves from what she calls “private tyrants”. This defence is based on objective criteria and would operate as a complete defence.

78 The defence has two requirements. First, proof of a regime of private tyranny. Cohen considers that a private tyranny exists where one person maintains control of another through social isolation, violence and threats of violence to the subject and those important to the subject, and, further, uses these means to prevent the subject from freeing him or herself from the tyrant’s control. Second, the killing of the tyrant must be reasonably necessary for the subject to escape from the tyranny, employing the traditional standards of “necessity” and “reasonableness”.

79 Cohen argues that where an individual has created a regime of private tyranny, it is morally justifiable for a subject to kill the tyrant if there is no other reasonable way for him or her to escape from the tyranny. When determining what is reasonable, the risks to the subject of choosing an alternative to killing the tyrant, and the availability and efficacy of the community’s own efforts to end such tyrannies, should be taken into account.

80 The main advantage of this defence is that it addresses the degree of violent control the batterer had over the defendant and also the dangers that the defendant would have run, at the hands of the batterer, if he or she had attempted to escape the batterer’s control. Self-defence may be inadequate to address these issues. The creation of a separate defence designed to assess these factors objectively allows self-defence to be confined to circumstances of imminent danger.

81 The disadvantage of the defence is that it does not set out with precision what level of tyranny and danger is required to justify killing the tyrant.

CONCLUSION

82 A specific defence for victims of continuing domestic violence would take into account the circumstances of battered defendants without unacceptably broadening the existing defences. But, as Fiona Manning notes,[101] such a defence raises a number of issues:

• should it be a partial or complete defence?

• should it be available only to women or should it be gender neutral?

• should it apply only to heterosexual relationships?

• should it be available only for homicides or also for assaults?

• should it be based on physical or psychological aspects of self-preservation?

• would the mental state of the defendant be relevant or is the preceding history of domestic violence the crucial and determinative factor?

Question 4: Should a special defence for victims of domestic violence who kill or assault their abusers be enacted?

Question 5: If so, which of the defences discussed in this section do you favour, or should the defence take another form?

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