Kate Fitz-Gibbon

Homicide Law Reform, Gender and the Provocation Defence

Introduction: The Partial Defence of Provocation PART I: THE PROBLEM OF PROVOCATION 1. Male Honour and the Provocation Defence 2. Jealous Men and Provocative Women 3. The Plight of the Provoked Battered Woman PART II: ADDRESSING THE PROVOCATION PROBLEM - DIVERGENT APPROACHES TO HOMICIDE LAW REFORM 4. Addressing the Provocation Problem 5. Abolishing Provocation - the Victorian Experience 6. Replacing Provocation - the English Experience 7. Restricting Provocation - the New South Wales Experience PART III: THE INTENDED AND UNINTENDED EFFECTS OF HOMICIDE LAW REFORM 8. New Laws, Same Problems - Alternative Categories to Murder 9. The Difficulty of Law Reform for Battered Women Who Kill 10. Complicating the Law of Homicide 11. Questions of Sentencing in the Provocation Debate Conclusion: The Partial Defence of Provocation and Lessons for Law Reform

The efficacy of Clare’s Law in domestic violence law reform in England and Wales:

In 2011 the high profile murder of Clare Wood led to the introduction of the national domestic violence disclosure scheme (‘Clare’s Law’) in England and Wales. The scheme aims to prevent the perpetration of violence between intimate partners through the sharing of information about prior histories of violence. Despite already spreading to comparable jurisdictions in the UK and Australia, to date the merits of a domestic violence disclosure scheme have been the subject of limited scholarly review and analysis. This article provides a timely critical analysis of the need for and merits of Clare’s Law. It examines the data impediments to the scheme, the need to balance the right to protection with the right to privacy and the question of victim empowerment versus responsibilization and victim blaming. The article concludes that there is a need to heed caution in adopting this policy elsewhere.

When sexual infidelity triggers murder: examining the impact of homicide law reform on judicial attitudes in sentencing

In October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of “loss of control”, applicable to England, Wales, and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendants culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the reforms respecting the substantive law by effecting a corresponding change in sentencing practice.

Provocation in New South Wales: The need for abolition:

Over the past two decades significant debate has emerged surrounding the operation of the partial defence of provocation. Such debates have led to its abolition in several Australian and international jurisdictions where Government and Law Commission bodies have argued that provocation has operated in a gender biased way that is no longer reflective of community values and expectations of justice. In contrast to the Australian states of Tasmania, Victoria and Western Australia, who have transferred consideration of provocation to sentencing, New South Wales (NSW) has retained provocation as a partial defence to murder. Drawing upon in-depth interviews conducted with legal stakeholders and an analysis of recent case law, this article considers whether the operation of provocation in NSW is still in the best interests of justice, and, specifically, whether in practice it privileges one gender above the other. This research concludes that the continued operation of provocation in NSW raises key issues surrounding the legitimisation of male violence against women, the denial and minimisation of the harm caused by lethal domestic violence, and the continued inability of the law to appropriately respond to women who kill in the context of prolonged family violence.

Divergent Directions in Reforming Legal Responses to Lethal Violence

Over the past three decades, debates about legal reforms to lethal violence have been evident across Australia and in other jurisdictions. While these debates have often arisen from shared concerns, the resulting reforms have taken different approaches to reformulating the defences to murder. This article considers the divergent approaches taken to reform and the process of law reform itself, documenting the significance of localised histories and high profile cases. It also questions whether reforms to the defences to murder have responded adequately to the varying contexts within which men and women kill. The analysis reveals the limitations of law reform inquiries that fail to take a comprehensive approach to considering the operation of the laws in this area. The article calls for ongoing critical analysis of homicide within and beyond the law.

Protections for children before the law: An empirical analysis of the age of criminal responsibility, the abolition of doli incapax and the merits of a developmental immaturity defence in England and Wales

The law’s response to child offenders has long animated debate and sparked doctrinal law reform in England and Wales. The provision of legal protections for children in trouble with the law has been central to such debates, and questions surrounding the age at which a child should be held criminally responsible remain a contested area of law both domestically and internationally. In 1998 England and Wales abolished the presumption of doli incapax and retained the minimum age of criminal responsibility at 10 years old; two years below the United Nations’ recommended standard. This article examines the legal protections provided for child offenders under English criminal law with a focus on the adequacy of the age of criminal responsibility, the now abolished presumption of doli incapax and the merits of a developmental immaturity defence. Drawing on data obtained from interviews conducted with members of the English criminal justice system, this article analyses the extent to which legal practitioners perceive that the existing provisions are adequate and concludes by reinvigorating debate surrounding the need for future review and reform.

‘Cemented in their cells’: a human rights analysis of Blessington, Elliott and the life imprisonment of children in New South Wales

In 2010, two Australians, convicted in childhood of rape and murder, lodged a joint submission with the United Nations Human Rights Committee, claiming that successive changes to sentencing legislation in New South Wales breached their human rights by denying them any meaningful prospect of release. In this article, we examine the political, legislative and procedural moves that have resulted in Australian children being sentenced to life without parole or release. We argue that successive legislative changes in various Australian jurisdictions have resulted in a framework for sentencing decisions that is considerably out of step with international legal standards for criminal justice. These increasingly punitive legislative changes exacerbate Australia’s already declining record of cooperation with UN processes, and reveal Australia’s reluctance to respect the legitimacy and authority of international law. Against this troubling context, the views of the Human Rights Committee serve as a much-needed reminder about the importance of a principled approach to child sentencing that forecloses neither the goal of rehabilitation nor the prospect of release and reintegration.

The mandatory life sentence for murder: An argument for judicial discretion in England

In 1965, alongside the abolition of capital punishment, a mandatory life sentence for murder was implemented in England and Wales. The mandatory life sentence served as a signal to the public that the criminal justice system would still implement the most severe sanction of life imprisonment in cases of murder. Nearly 50 years later, this article examines whether the imposition of a mandatory life sentence for murder is still in the best interests of justice or whether English homicide law would be better served by a discretionary sentencing system. In doing so, the article considers debates surrounding the political and public need for a mandatory life sentence for murder by drawing upon interviews conducted with 29 members of the English criminal justice system. This research concludes that a discretionary sentencing framework is required to adequately respond to the many contexts within which the crime of murder is committed.

The Victorian operation of defensive homicide : examining the delegitimisation of victims in the criminal court system

In November 2005, the Victorian government implemented a new offence of defensive homicide, alongside the abolition of the partial defence of provocation. This new category of homicide was introduced not as a replacement for the abolished provocation defence, but rather as a ‘safety net’ between murder and an acquittal for women who kill in response to prolonged family violence. Since its implementation, the operation of this new offence has already begun to raise concern, particularly in relation to its successful use in the 2010 trial of Luke Middendorp. Using defensive homicide as a case study, this article examines the continued delegitimisation of victims in the Victorian criminal justice process. Specifically, it draws from a transcript analysis of cases resolved in the first seven years of the offence’s operation, to consider the use of the offence in three contexts: when raised by men who have killed a female intimate partner; where successfully used in cases of lethal male-on-male violence; and where applied to female defendants who have killed in response to prolonged family violence. The resulting theoretical discussion suggests that, in the wake of abolishing provocation, the Victorian law of homicide has continued to minimise the status of victims and in so doing has been unable to distance itself from the narratives of victim blame, denigration and delegitimisation that previously were linked to the operation of the controversial provocation defence.

Criminology, gender and security in the Australian context: Making women’s lives matter:

This article examines how it might be possible to make women’s lives matter in contemporary criminological understandings of security. In doing so it considers the conceptual complexity of security, and reflects on the criminological engagement with that complexity and the feminist contribution to it paying particular attention to current concerns with everyday security. The article deploys the contemporary Australian policy agenda on family violence to illustrate the paradoxes to be found within these current pre-occupations. Drawing on feminist informed work that situates violence against women within the conceptual framework of everyday terrorism, it concludes by offering further consideration to the meaning of everyday security and the implications that this has for contemporary criminological concerns with security.