The report, 'Out of character? Legal responses to intimate partner homicides by men in Victoria 2005-2014' (by researchers Debbie Kirkwood and Mandy McKenzie from DVRCV and Danielle Tyson and Bronwyn Naylor from Monash University) was launched on 5 May and can be found at http://www.dvrcv.org.au/.
Homicide laws were significantly reformed in Victoria in 2005, following the VLRC's 2004 report Defences to Homicide. The reforms were intended to make family violence more visible when it formed the context of a killing, particularly where women killed a violent partner, and to remove the option used by men of arguing that they were provoked to kill by a partner's desire to leave the relationship. The provocation defence was abolished, and the defence of self-defence was reframed, providing for information about family violence to be presented in court, and for juries to be given directions explaining the dynamics of family violence to help them understand — for example — why women don't immediately leave a violent relationship, and therefore why a woman might either stay until she was killed, or stay until desperate enough to kill.
The DVRCV and Monash project analysed trial and sentencing transcripts from cases of intimate partner homicide from 2005 to 2014, to see what impact the legislative reforms in 2005 had had. Unsurprisingly the majority (80 per cent) of perpetrators of intimate partner homicides were male in this period: 51 cases involving prosecutions of men were examined, and 13 cases involving women. The majority of these intimate partner homicides were also preceded by a history of family violence, abuse and/or separation.
The study found continuing use of narratives which blame women for men's violence and minimise prior family violence. Significant numbers of men pleaded guilty to murder, a higher proportion than in earlier studies, which may reflect the abolition of the provocation defence. However in the legal process, explanations for male homicide continue to focus on how the woman leaving the relationship affected the man's mental state. While the word provocation is rarely explicitly used, men still claim they killed their partner due to their distress at the separation.
This explanation, if accepted, tended to represent the man as having 'snapped' or acting 'out of character', a narrative which could be used to show lack of intent to kill at trial, and as mitigation of culpability at sentence.
In a number of cases, despite a history of controlling or abusive behaviour, the offender was described as being of 'good character' and this was accepted as relevant to his sentence. This was particularly the case if he had not been physically violent towards his partner.
It is now widely recognised by family violence experts that non-physical forms of violence such as controlling behaviour, obsessive jealousy and threats to kill or suicide are key warning signs for a high risk of serious injury or death, and that separation is a particularly risky period. However these features are not always seen to be relevant to the explanations for homicide in the prosecution and sentencing process. The study found that a history of family violence was most likely to be recognised when there was prior physical violence resulting in criminal convictions, while other forms of family violence were often not recognised. The incident causing death is then presented as an isolated event due to the stress of separation and/or the mental illness of the offender.
The researchers' recommendations include further education for legal professionals and expert witnesses, and they highlight the educative role of judges in framing and challenging family violence. The study identified several cases where judges spoke out strongly on these issues. It was concluded, however, that further work is needed to shift a legal culture which does not yet recognise the significance of the context of gendered violence in domestic homicides.
BRONWYN NAYLOR teaches law at Monash University.