Why Victoria should rethink the abolition of defensive homicide

In 2005, a comprehensive package of “trendsetting feminist … reforms” was introduced in Victoria, including a new offence of defensive homicide. Sitting between murder and manslaughter in terms of legal and moral culpability, a person could be convicted of defensive homicide rather than murder if they killed with the genuine but unreasonable belief that they were acting in self-defence.

Defensive homicide was introduced for two reasons:

• To provide a “safety net” between complete acquittal (self-defence) and murder for women who killed an abusive male partner
• To provide a “halfway house” for offenders with mental illness that did not amount to the strict mental impairment defence.

It was considered a controversial offence, subject to two government reviews before its abolition in November 2014.

Removing the safety net for abused women

The decision to abolish defensive homicide fitted neatly into the then-Liberal government’s tough law and order agenda. The dominant voices in the debate claimed the offence was being used and “abused” by “violent thugs”.

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Read more: Legitimising lethal male violence: why defensive homicide needs to be abolished

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Often cited as a primary example is the case of Luke John Middendorp, who killed his female ex-partner. This narrative emerged despite Middendorp being the first and only male convicted of defensive homicide for killing an intimate partner, and despite numerous women’s and family violence advocates desperately campaigning to retain the offence. They did so because it was found to be providing a “safety net” option for women who killed in response to family violence.

In particular, the offence recognised that women often encountered difficulty establishing their offending as self-defence (for example, when the victim was killed while asleep), but their offending warranted a conviction less than murder.

Removing the halfway house for mentally impaired offenders

Recent longitudinal research has found very high rates of mental illness among homicide offenders. Of the 33 defensive homicide convictions while the law was available, 20 offenders presented evidence of a history of mental illness or impairment.

In Victoria, the mental impairment defence provides a finding of not guilty by reason of mental impairment (NGMI). But this defence is very (and necessarily) restrictive, used in about 1 per cent of higher court cases.

In the past 16 years, a finding of NGMI in homicide cases has occurred exclusively where the primary diagnosis was schizophrenia. It has never been used for an individual with a cognitive impairment.

This is because the test requires the accused to not understand either the nature and quality of their conduct, or that their conduct was wrong. This in turn means “the vast majority of people with serious mental illness … fail this test”.

Due to the disproportionate rates of mental illness among homicide offenders, it's important there are appropriate legal avenues to respond to this type of offender in a way that captures their legal culpability, while recognising the reduced moral culpability. Defensive homicide achieved this.

Without defensive homicide

Without defensive homicide:

• Offenders with significant cognitive impairment have no alternative between murder and manslaughter.
• A woman who kills a violent male partner faces an “all or nothing” choice of arguing self-defence at trial and risking a murder conviction, or pleading guilty to manslaughter. Bear in mind that prosecutors may not accept an offer to plead guilty to manslaughter where there is evidence of an intention to kill (for example, where there are multiple blows with a weapon).

The focus on “men getting away with murder” leading up to defensive homicide’s abolition shut down any nuanced inquiry into the immediate and extended impacts of its removal. This has left Victoria as the only state other than Tasmania without a “halfway house” between murder and manslaughter.

Defensive homicide did not negate the legal responsibility of accused persons, nor did it mean they avoided punishment. Rather, it offered an opportunity for the law to determine the extent to which the offender was morally culpable for his/her conduct. In this way, it allowed for the lower moral culpability of offenders, where relevant, to be taken into consideration in both the type of conviction recorded and the sentence imposed.

Having an alternative offence that can capture these circumstances doesn’t mean all offenders with a mental impairment or who kill in response to prolonged abuse will have a guilty plea accepted by the prosecution, or be found guilty of the lesser offence at trial. Indeed, despite the controversy surrounding defensive homicide, safeguards were in place to prevent misuse. And the offence was used rarely – with the majority of mentally impaired offenders found to be within the reach of ordinary law.

In the absence of defensive homicide, the law in Victoria is fundamentally constrained in its ability to determine criminal culpability according to degrees of impairment and abuse. This matter of degree is important, as it appropriately reflects the circumstances of the offender and the offence.

The current all-or-nothing system lacks the sophistication necessary to provide appropriate defences (or offences) that recognise the reality of the complex conditions and circumstances of homicide. The law requires greater flexibility to deal with homicide offences.

This article originally appeared on The Conversation.

Asher Flynn is Senior Lecturer in Criminology at Monash. She receives funding from the Australian Research Council and the Criminology Research Council.

Danielle Tyson is Senior Lecturer in Crimniology at Deakin University. She has previously received funding from the Victorian Women's Benevolent Trust and the Legal Services Board of Victoria.

Madeleine Ulbrick is a PhD candidate at Monash. She does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.