Julia Tolmie

Battered Women Charged with Homicide: Advancing the Interests of Indigenous Women

Abstract This article examines legal responses to women charged with a homicide offence arising from killing an abusive partner and reviews Australian cases over the period 1991–2007. We focus on cases involving Indigenous women, due to their very substantial overrepresentation as victims and offenders in intimate homicides in Australia. We find that the Australian case law to date has not developed principles adequate to reflect battered womens interests. Our analysis of cases involving Indigenous battered women indicates that the battering they had experienced and their disadvantaged circumstances were commonly read as indicators of personal deficits, and any evidence of structural disadvantage was muted. This research suggests that the limited impact of battered womens litigation in Australia is in part attributable to the psychological individualism of the criminal law identified by Norrie (2001, 2005), which is not confined to the trial stage but also shapes prosecutorial discretion and sentencing. We urge future research to shift the focus beyond battered woman syndrome and the trial process to examine plea bargaining and sentencing, and we suggest that advocates on behalf of battered women cannot rely on case law developments to deliver change but need to pursue multiple strategies.

“…He’s Just Swapped His Fists for the System” The Governance of Gender through Custody Law

In this article, we investigate the state’s role in the reproduction of relations of male dominance between separated parents through custody law. We argue that three “logics” shape the current operation of family law—durability, gender neutrality and present/future temporality—such that custody law is not simply a mechanism of dispute resolution between parents; it is also a vehicle for the differential production, positioning, and regulation of mothers and fathers as postseparation parents. Drawing on interviews with 21 mothers, we show that the outcome of the state’s governance of gender through custody law for women in dispute over care and contact arrangements is that nonresident fathers are able to engage in nonreciprocal exercises of power over resident mothers. The consequence for resident mothers is that nonresident fathers are able to legitimately use the law to threaten and coerce mothers, and to protect their interests and rights at the expense of mothers’ needs for and rights to security and autonomy.

The gendered dynamics of power in disputes over the postseparation care of children

A dichotomized picture of postseparation parents has emerged in family law that juxtaposes violent relationships with those that are “normal.” Domestic violence scholars and advocates have played a role in reproducing this picture in their quest to secure protection for women and children. Although sympathetic, we argue this construction generates a number of problems: in particular, it obscures the gender power dynamics in relationships where women have not experienced violence. Interviews with separated mothers in dispute over contact arrangements reveal that there are significant continuities in the gender power dynamics they experience, despite differences in their exposure to male partner violence.

Battered women charged with homicide in Australia, Canada and New Zealand: How do they fare?

This article examines trends in the resolution of homicide cases involving battered women defendants from 2000 to 2010 in Australia, Canada and New Zealand. Australia and Canada appear to have some commonalities in their treatment of such cases with higher acquittal rates and a greater reliance on plea bargaining to produce manslaughter verdicts, as compared with New Zealand. Although New Zealand’s small number of cases makes it difficult to generalise, its overall trends appear to be different from those observed in Australia and Canada, in both the high proportion of cases proceeding to trial and those resulting in conviction for murder. The authors conclude that there is a need to re-examine prosecutorial practices of proceeding to trial on murder rather than manslaughter charges even when manslaughter would be ultimately satisfactory to the prosecution, and of accepting guilty pleas to manslaughter verdicts in circumstances where the battered woman appears to have a strong self-defence case.

Alcoholism and Criminal Liability

Having examined the question of whether alcoholism should be regarded as a disease or habitual and learned behaviour, the article assesses from a comparative law perspective the effect of alcoholism as a defence to criminal responsibility. The article proposes a ‘disease’ model of alcoholism for the purpose of criminal law, and criticises its handling through the law of diminished responsibility.

Coercive control: To criminalize or not to criminalize?:

Criminalizing coercive or controlling behaviour in an intimate relationship, as has been done in England and Wales and is proposed in Scotland, has the advantage of offering an offence structure to match the operation and wrong of intimate partner violence. This article raises the question as to whether other jurisdictions should follow suit. It argues that the successful implementation of such an offence may require a complexity of analysis that the criminal justice system is not currently equipped to provide and will require significant reforms in practice and thinking. If it is not successful such an offence could conceivably operate to minimize the criminal justice response to intimate partner violence and be used to charge primary victims.

Erica’s Story: A Poetic Representation of Loss and Struggle

Several years ago one of the authors sat down in the kitchen of an ordinary Auckland home to hear the story of Erica, a woman who was disputing the care and contact arrangements for her small children with her ex-husband, Jason. Hers was one of 21 stories that we (VE, NG & JT) collected as part of our research into women’s experiences of dealing with disputes over post-separation parenting arrangements through legal or quasi-legal processes. However, Erica’s story was radically different from the others in one significant respect: she had lost the day-to day care of her children and was struggling to become a resident mother again. Laced with the pain of unjust loss, Erica’s story cries out for the kind of representation envisaged by Pelias’ methodology of the heart – ‘scholarship that fosters connections, opens spaces for dialogue, heals’ (2004, p 2). As Pelias and others (for example, Laurel Richardson 1999, 2000, 2002 have suggested, poetic representations are eminently suitable for such scholarship because poetic texts work at the level of our minds as well as our hearts; a poem asks us to respond with feeling. In this chapter, we explore the significance of poetry for the social sciences through poetic representations of the stories of Erica. We contend that poetry and other new representational formats have an important role to play in enabling audiences of our research to hear with their hearts and to be moved.