Changes to murder laws in Victoria, Australia

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End nears for defence of provocation

Finally, Victoria is bringing in legislative amendments to codify what qualifies as self-defence, and removing the partial defence to murder of provocation. Previously, this defence reduced the culpability of a defendant, altering the charge to the lesser crime of manslaughter. It has also meant that a huge volume of case law has built up around homicide defences, with no clear path through it fully established.

Provocation will now become a sentencing consideration, not a partial defence. Since Australia does not employ the death penalty, the substantive difference between the convictions is typically 5-10 years of imprisonment.

The laws will also give recognition to "battered women's syndrome" in determining self-defence arguments, and introduces the offence of "defensive homicide":

After a number of high-profile cases (including the Heather Osland trial and conviction), I believe this reform is long overdue. There appear to be safeguards against abuse of the provisions (defensive homicide, for one), and it's putting to rest a double-standard of law; the vast majority of provocation defences are put forward by male defendants.

Time to throw this one open. Do these reforms go far enough? Too far? Do other jurisdictions have similar provisions? What do you folks (either in Australia or elsewhere) think of the changes?

 

The way I see it, it's one thing to set out to kill someone in cold blood, another to confront an unfaithful spouse and kill them in a fit of anger, and another again to kill an abusive spouse. That makes three different offenses, three different charges...

This doesn't take into account where a fight breaks out and one combatant ends up dead, but that sounds like a fourth case, where loss of life was not expected or even desired, but it happened...

 

Hello, Victoria, and welcome to the 21st century.

Article doesn't clarify, so does this mean if it's unreasonable in hindsight, or if it's unreasonable based on the information the person has the time the killing occurs?

 

@ Gnarff,

Under the proposed laws, they would all probably be tried as murder. In the second case, provocation would be a sentencing consideration - but it would still be a murder charge and conviction before that became relevant. In the third case, the argument of self-defence will become relevant under the new laws.

The fourth case can be a sub-category of manslaughter known as "unlawful and dangerous act" (UDA) manslaughter, or simply an escalation of violence into an unintentional death ("normal" manslaughter). UDA manslaughter typically occurs during the commission of another criminal act, but where the death was not intentional.

If someone knows the relevant laws better than I do, please correct me - I don't claim to understand them 100% accurately.

@ AMaster,

It would be similar to the rape defence of "genuine but mistaken belief", IMO. The consideration of reasonability would apply to the individual in the situation at the time, knowing what they knew. My understanding of the charge (and I'm not a lawyer) is that it would be quite similar to manslaughter in terms of severity; that a serious threat was perceived, but that perception was flawed and the force used in response was excessive. It appears to be less morally culpable than murder and certain acts of manslaughter.

 

I guess that means you can get sent away for 20 years just for being judged 'wrong' about someone else's motives.

@husbands everywhere:
Run for the hills, men!

 

In the U.S., they do make such distinctions, but we have a different terminology. For example, there is 1st degree murder, 2nd degree murder, 3rd degree murder, manslaughter and involuntary manslaughter. The differences involve planning, and intention of the act. For example, 1st degree murder is considered the worst, and in many states it is considered a capital offense. To prove 1st degree murder you must show that the act was both intentional and premeditated. On the other hand, involuntary manslaughter is usually done when there was never an intent to kill someone, and the instrument used in the killing was one that is typically not considered a weapon. For example, if you run someone over with your car. If you weren't under the influence of drugs or alcohol, and assuming you weren't aiming for the person, you'd likely have involuntary manslaughter.

 

Defensive homicide sounds bull****. In Poland, you face the same charge but your crime is differentiated as an excess of necessary defence. We don't bicker over self-defence or whatever such: either it's necessary defence or excess thereof. Excess mitigates, proper necessary defence exculpates. Still, criminal judges tend to suffer from a strange affliction that renders them humane towards the classical criminals but not those defending from them.

We don't have degrees of murder, but it's homicide unless you act with exceptional cruelty or use firearms. Affection changes the qualification of the crime (homicide in affection).

If you ask me, it's good to have a strong measure of protection for people who commit crimes in self-defence. I just wouldn't like to see it overdone and including what is revenge more than defence.

Heck, revenge could and should be a mitigating circumstance, as the totality of the psychological condition of the perpetrator matters and being provoked or previously wronged affects a person no less than drugs or personality issues do. But let's just call things by names and avoid dragging politics into justice.

 

I think there's an ideological dimension to the changes, but I don't believe that they are defined by it. There is an identified need to deal with the issue of domestic violence-precipitated homicides in Victorian law, IMO. I don't see it as a slavish attachment to current trends, because domestic violence and spousal abuse have existed in societies since the dawn of human history; it's only really been in the last half-century that it has become recognised as a crime.

As I see it, the offence of "defensive homicide" seems to mesh perfectly with battered women's syndrome (BWS) cases. Essentially, it's a less serious charge than murder, and would typically rest on the issue of reasonability of belief. It's not about denying that you killed someone; it's about whether your response to the threat was reasonable or not. Also, I imagine that very few cases of defensive homicide will get a 20-year sentence; if it's clear-cut and culpable enough to get that kind of sentence, the prosecutor will probably go for a murder charge instead.

@ Felinoid,

That's a fairly long bow to be drawing. Self-defence as an exculpation for homicide necessitates proportionality to the threat. There has to be a genuine threat to life for self-defence to succeed. Also, in my experience, the vast majority of husbands killed by their wives have physically, mentally and sexually abused them (and sometimes, the children as well) for a number of years before the event. In the course of my university education, I read a number of case studies where the treatment of these victims made me physically ill.

In some cases, I'd almost be inclined to say those women were doing society a favour by killing them.

@ Chev,

Over here, "homicide" simply refers to killing another person; there are at least four different categories I can think of (murder, manslaughter, culpable driving and defensive homicide). They were looking at introducing industrial manslaughter and homicide laws, but predictably met with stiff opposition from industry.

The most difficult issue with BWS is that inevitably, the women are incapable of responding with equal force, or on the same terms as their abuser. The psychological state of the victim is chaotic, to say the least, because so often they are or have been made completely dependent on their abuser for validation. It sounds ludicrous, but having witnessed first-hand how that kind of mental manipulation destroys self-esteem, I know how insidious and devastating it can be. A woman doesn't have to be needy or weak-willed to end up like that.

A person in that position is incapable of meeting the standard of "reasonability", particularly if they're aware that any resistance will only bring on a more severe assault. Proportionality of response, therefore, becomes very complicated; it can only be an apprehended threat based on experience; reacting to being struck by stabbing someone in the chest is not a proportionate response, but if striking back will result in hospitalisation or possibly even death, and you're only going to get one shot it, how unreasonable is it? After all, everyone has the right to self-defence.

Of course, if one starts quoting rights, the debate degenerates into a false contest rather than addressing the issue, so I'll drop that there.

I'm with you on provocation being relevant to sentencing (as is the legislation); I just don't think it should have status as an automatic partial defence. Historically, BWS is fundamentally different to provocation and deserves different consideration, especially since we don't fully understand it yet (and I'll admit, it has the potential to be hijacked politically).

 

@NS:
I didn't say anything about wives killing husbands, and I agree with everything you said. I was just trying to make a joke about how when husbands and wives fight (verbally), the husband is always 'wrong'. There, you've made me ruin the joke; are you happy now?!?

 

That should also work for youngsters, subordinates and other people in a dependant condition.

IMHO, if your alternative is accepting a beating or killing your assailant, it should be acquittal. There should be no situation in which the law requires anyone to submit to any form of violence against his person. I'm not talking about shooting a guy in the head rather than parting with your wallet, but shooting him in the head rather than getting beaten is still defence. You shouldn't even be ordered to pay any medical bills, should he survive. The defending person's only responsibility is not to use excessive means -- this means sticking to measures that are reasonably sufficient, which still shouldn't place the person before dilemmas he simply has no time to solve.

Still, if you choose to live with an abuser instead of leaving him, you don't really have much right to say, oh this is one beating too much and I'm killing him now.

As for manipulation, falling victim to manipulation that involves sex and self-esteem is not an exclusively female thing and there's no reason to limit it to females. If a woman managed to get a man in a similar kind of chaotic state, he should benefit from similar mitigating circumstances.

Perhaps I should explain my stance on provocation. First, things like calling names or throwing a punch hardly seem to justify killing a person. What's more, people are supposed to take such matters to courts rather than take justice in their own hands.

However, what's relevant to a crime is 1) the material substance, 2) the attitude of the actor towards the act (the psychological state in which he is). The subjective component determines the degree of knowledge and consent, which determines the extent of culpability. Provocation of any kind and degree affects the person's state. Therefore, provocation is relevant. A person shooting down someone who has been calling him names reacts excessively but doesn't do the same that a thug who kills for fun or someone who kills to get ahead in life. I think the society or the lawmaker has the right to draw a line and require a certain level of restraint from citizens, making lesser degrees of provocation irrelevant. But, ideally, everything should be taken into consideration because it affects the offender's psychological condition. This is where I get those strange ideas that provocation matters in murder or other violent crimes, the victim's conduct matters in sex crimes and so on.

[ October 07, 2005, 02:50: Message edited by: chevalier ]

 

Sorry, Fel - wasn't reading it like that.

Chev,

And here's the problem: it's almost never as calculated as this (although a quick Google search on "Heather Osland" will provide a very controversial case study - to summarise, she killed her violent and abusive husband in a premeditated fashion, and with her son's help, IIRC). Often, an abuser begins with mental, social and economic abuse to make the partner increasingly dependent (particularly for personal validation or approval). Once that is established, the abuse may become more and more onerous, with the victim always trying to please instead of telling the bastard where to stick it and leaving. The fully-formed intent to kill is seldom present. I agree, though, that it's a difficult issue to reconcile, particularly in cases like Osland's (one which I'm still not certain about).

I realise I've assumed that the abuser is male and the victim is female. That's not always true, but in the overwhelming majority of cases, it is accurate. The element of self-defence is much harder to envisage with a male victim and a female abuser; it's anger and rage, certainly, which constitutes provocation (and which is now a sentencing consideration). The lack of a physical threat is what would typically differentiate the two, IMO.

Women are capable of the same things, I am certain, but between physical attributes, social forces and historical evidence, it's a fair gendering of terminology to apply.

I remember being vilified at university for much the same thoughts, Chev.

There is a world of difference between victim precipitation and victim-blaming, and one can hardly call it "justice" if a set of possibly-contributing factors are ignored on ideological grounds. Still, given the history of the provocation defence, it was an inherently gender-biased concept and one which supported an older and now unacceptable view of what was "excusable violence". It is relevant, certainly; however, it shouldn't be a defence to homicide. As I said earlier, it's qualitatively different to BWS.

 

Further to the last post, another article (editorial) discussing the issues: the title should indicate the bias, but it's a reasonably balanced commentary, since it's aware of the problems such changes could cause.

Age editorial

 

If I were a judge, there would be some cases I'd rather leave to God to sort out and I wouldn't be happy putting people behind the bars for a prescribed number of years for all crimes that fit a given category.

IMHO anger and rage is never self-defence and provocation neither. You can have each mixed with self-defence, but they are separate things. I believe some kinds of provocation could actually be as much of a mitigating circumstance as self-defence (as in excess of self-defence or any kind of self-defence that doesn't automatically get you acquitted). I could classify punching someone in the face to stop insults to family members as self-defence, but beating your wife up on coming home and realising she's just shot your favourite pet? Affection, sure, but not self-defence.

Perhaps, although if we still call it BWS, it shouldn't automatically preclude guys from calling on it. I'm much in favour of investigating all defence claims, no matter how idiotic they may seem at first glance.

IMHO it sucks when they exclude evidence for political reasons.

I don't want to delve into partial difference, mitigating circumstance, sentencing factor or however we're going to classify it, so let's just say I think it should affect the number of years the person spends in prison. But I'm talking about unlawful provocation (something you could sue for), not just anything the offender didn't like. Also, IMHO, provocation which was specifically intended to inspire a violent reaction should be regarded in a very special way, different from simple provocation. Polish law has a very special consideration for that kind of provokers. For example, if you incite or provoke a crime and later prevent it from taking place, you can avoid accountability. But if you incite or provoke a crime in order that you could later denounce the intended offender to the police, you're cooked.