Reform to the mental element for rape is proposed in a consultation paper, ‘Review of Sexual Offences’, published in September 2013. The paper responds to debate following controversial decisions in Worsnop (2010) 28 VR 187 and Getachew (2012) 286 ALR 196. It proposes several options for reform relating to such questions as whether an accused should be convicted of rape where he unreasonably believes a drunk or sleeping victim is consenting to sex (while, perhaps, perceiving the possibility that she is not). Such questions have become ‘highly complex and difficult to explain to juries’ following the various amendments of recent years.
The second consultation paper ‘Defensive Homicide: Proposals for Legislative Reform’, also September 2013, responds to continuing debate about cases like the 2003 Ramage decision, in which a man successfully argued provocation after he killed a wife he believed had been unfaithful. This case coincided in the public mind with parliament’s decision in 2005 to abolish the defence of provocation, and substitute it with a new partial defence, labelled defensive homicide.
Defensive homicide, it was hoped, would ensure men like Ramage would be convicted of murder. No longer would it be possible to argue that an ‘ordinary’ person could have been provoked to kill by the victim’s conduct. Instead murder would only be mitigated if the defendant was actually in fear of death or serious injury. It was hoped this would ensure ‘angry’ men would be convicted of murder, while ‘fearful’ women (especially family violence victims who killed their partners) would continue to have at least a partial defence.
In 2010, however, a Department of Justice Discussion Paper suggested that defensive homicide may not be working in the way it was intended. The Victorian Coalition government was elected in November 2010, its Attorney-General Robert Clark having claimed that ‘this law is just not working as it’s supposed to have worked and justice is not being served’.
Following in this vein, the 2013 Consultation Paper proposes the abolition of the defence. It cites data showing that men are both the overwhelming majority of offenders convicted of defensive homicide (25 out of 28), as well as the overwhelming majority of victims (26 out of 27). Only a minority of offenders had a family relationship with the victim (7 out of 28). Thus, the defence is primarily being used by men who kill other men, most often (the paper suggests) in situations where the old defence of provocation would have been used.
Instead of defensive homicide, the paper proposes, the common law of self defence should be reintroduced. This would be by way of a new s 322 G Crimes Act (p 43) which would essentially apply a two-fold test for self-defence. First, the accused must believe that it was necessary to do what he or she did in self defence; and secondly, there must be reasonable grounds for this belief (or at least, the response must be reasonable in the circumstances as perceived by the accused, a slightly different and more subjective test).
What are the virtues of this change? Simplicity is one. Another is consistency with what occurs in other jurisdictions. Another is, hopefully, to reduce the focus on proving a threat of death or serious harm, hence leaving the way open for women who kill violent partners in ‘slow burn’ situations to argue the defence. It will also make it more difficult, though not impossible, for ‘undeserving’ men like Ramage or Luke Middendorp (who was convicted of defensive homicide in a well publicised 2010 case) to rely on self-defence.
However, juries are likely to continue to make controversial and sometimes politically unpopular decisions. This may include (perhaps) convicting the occasional battered woman of murder because a jury did not consider her belief in the necessity of her actions to be reasonable — a possibility outweighed, in the Department’s view, by the likelihood that undeserving defendants would successfully rely on reintroduced versions of defensive homicide or excessive self-defence.
Comments on both Consultation Papers are due before the end of this year.
STEPHEN GRAY teaches law at Monash University.