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Two recent events have challenged a number of partial defences used to reduce a murder charge to one of manslaughter. On December 10, 1998, the High Court dismissed an appeal brought by a Bendigo woman, Heather Osland, against her 1996 conviction for the murder of her abusive husband. At least one of the judges who ruled against Mrs Osland stated that being the victim of long-term physical and psychological abuse was not an automatic defence against the charge of murder. Six months earlier, in June, 1998, the Model Criminal Code Officers Committee released a discussion paper proposing that all partial defences in murder trials, including the defence of provocation, be abolished. The High Court's ruling in the Osland case has cast doubt on the already tenuous validity of what is commonly referred to as the `battered wife's syndrome' as a defence against the charge of homicide. While the Model Criminal Code Committee's recommendation against accepting provocation and other supposed mitigating circumstances has raised the possibility that all partial defences may be disallowed. |
There are a large number of Internet sites which are helpful when considering this issue. A very good starting point is an article titled Guilty ... or not. It was written in March, 1998, and is contained on the Law for you site. It can be found at http://www.law4u.com.au/lil/ls_guilty_or_not.html This is a very useful article. It uses the Heather Osland case, and another which occurred in Western Australia, as starting points for a discussion which supplies clear legal definitions of murder, manslaughter, provocation and self-defence. It also explains how someone may be regarded as having caused the death of another even if they did not directly kill the person themselves. The Law for you site is an Australian law information service. It is searchable and provides explanations of various aspects of the law, especially in New South Wales and Victoria. The information service's home page can be found at http://www.law4u.com.au/html/home.asp * The Age has a number of articles dealing with the Heather Osland case specifically and the larger questions of battered woman's syndrome and the legal defences of provocation and self-defence as they apply to women. On February 16, 1998, The Age published an apparently opinionative piece titled, Domestic violence victims fight the judiciary as well. It can be found at http://www.theage.com.au/daily/980216/news/news23.html This presents a number of trial instances, including Heather Osland's, and some expert, opinion to suggest that the law does not take domestic violence sufficiently seriously as a threat to life. An editorial titled Too long a sacrifice can be found at http://www.theage.com.au/oped/oped980221.html This was originally published in The Age on February 21, 1998. The editorial explains what has been the legal impact in Australia of `battered woman's syndrome' and also suggests that the defences of provocation and self-defence are currently interpreted in ways which disadvantage women. On August 19, 1998, The Age published an opinionative piece by Phil Cleary. The comment is titled The legal lie that men kill for love It can be found at http://www.theage.com.au/daily/980819/news/news10.html Phil Cleary argues that the defence of provocation often denies women the right to leave an abusive relationship and excuses the brutality of the men who then kill them. * A substantial, but difficult, source is an 80 page excerpt from Heather Osland's appeal to the High Court. It is titled Osland v The Queen M14/1998 (24 April 1998) and can be found at http://www.austlii.edu.au/other/hca/transcripts/1998/M14/2.html This rewards perseverance as it includes a number of the arguments Dr Scutt offered to demonstrate that Heather Osland had acted in self-defence. It also presents the battered woman syndrome as a defence. However, it is an unedited transcript with the repetitions and context dependence of many verbal presentations. There are a number of valuable overseas Internet sources giving information and opinion on either provocation or the battered woman's syndrome * In May, 1996, the United States Department of Justice and the National Institute of Justice, together with the United States Department of Health and Human Services and the National Institute of Mental Health, produced a report titled, The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Cases. The report can be found at http://www.ncjrs.org/txtfiles/batter.txt This is a very valuable document examining the psychological effects of battering. Interestingly it disputes the existence of a `battered woman's syndrome' if this is meant to suggest that all women who suffer physical abuse respond in the same way. It also looks at how the effects of battering have been used as a defence in law in the United States. It is, however, a very lengthy document (some 134 pages). The Foreword, Preface and Overview and Highlights of the Report are covered in the first nine pages. Reading these is a useful way to get into the document and may supply all the information you need. * The American Judges Foundation Inc has produced a series of guidelines to assist judges in making determinations in cases in which defendants claim to have been the victims of domestic violence and other forms of abuse. The guidelines are titled, `Domestic Violence & The Courtroom Understanding the Problem ...' They can be found at http://www.americanjudgesfdntn.org/booklet.htm They include, among other things, an informative, but quite sympathetic treatment of `battered woman syndrome' The American Judges Foundation is a body set up to supply information on a range of issues relevant to judges. * In 1996, Michael Fumento, wrote an opinionative piece titled, Battered Justice Syndrome. The article can be found at http://www.consumeralert.org/fumento/batter.htm It is highly critical of the use of the supposed `battered women's syndrome' and other `syndromes' to justify acts which the author argues are simply murder. Michael Fumento is a weekly self-syndicated columnist whose work appears in The Washington Times, The Chicago Tribune, The Detroit News and a number of other American, British and Australian publications. * The Canadian Department of Justice is currently reviewing the defences of provocation and self-defence, particularly as they relate to domestic violence. The Canadian Department of Justice produced a valuable discussion paper in July, 1998, titled Reforming Criminal Code Defences. The paper was part of a call for submissions on the issue. It can be found at http://canada.justice.gc.ca/consultations/rccd/index_en.html |
Arguments against provocation and the battered woman syndrome as defences in murder trials
One of the main arguments given against provocation as a defence in murder trials is that many of those who claim provocation have not been pushed beyond the point at which they could any longer control their behaviour.
Rather, it has been claimed, any reasonable person, male or female, should be able to control their responses in many of the circumstances for which provocation is claimed as a defence.
This point has been made by Jocelynne Scutt, in relation to the claim that men left by their female partners may have been provoked to kill. Dr Scutt has argued, `To say that the ordinary man could kill his wife because she leaves him, and should be allowed to use this as an excuse, is demeaning of all men. It implies that all men, any man, could kill his wife or partner because she tells him it's over.'
Dr Scutt has made the same point in relation to a number of ethnic groups whose cultural values have been claimed to make them particularly sensitive to certain sorts of provocation. Dr Scutt has argued, `To say that the ordinary man of a particular background - Islamic, or Turkish, or Italian - has a frailty that means he could kill a daughter who marries out, and that this demands an excuse in law, demeans all men of that background.'
The second argument offered against provocation as a defence follows on from this.
If it is conceded that an ordinary person would not be uncontrollably provoked by many of the behaviours which have been said to excuse what would otherwise be murder, then it follows that many of those who claim provocation as a defence are using this as a rationalisation for an unjustified or inexcusable killing.
This point has been made by former federal member of parliament, Phil Cleary, who argues, that a defence of provocation has often `allowed violent men to be transformed into victims and dead women into villains'.
Mr Cleary maintains that the defence of provocation `has camouflaged the wanton, revenge killing of women' by their current or former male partners.
(Mr Cleary has been campaigning against the partial defence of provocation since his sister was killed in 1987 by a former boyfriend. Ms Cleary's killer was convicted of manslaughter, rather than murder, and served only three and a half years in jail because it was claimed he had been provoked by some remarks Ms Cleary had made and by her leaving him.)
A third more specific criticism is that the provocation defence often operates in a way which advantages men and disadvantages women.
This point has been made by both Dr Jocelynne Scutt and Phil Cleary. Though both are advocates of the battered woman's syndrome as a defence for women who kill their partners in long-term abusive relationships, both Scutt and Cleary argue that the provocation defence often works to the unreasonable advantage of violent, possessive men.
Both Jocelyn Scutt and Phil Cleary have claimed that some interpretations of provocation are based on out-moded notions of male/female relations according to which men may feel that they own their wives or partners and so may be uncontrollably provoked by the prospect of that person leaving them.
The fourth point made by many of those who oppose partial defences is that the decision as to whether special circumstances apply which might reduce the penalty a convicted person should receive is best made by the judge when passing sentence, rather than by having the jury determine if an accused has committed murder or manslaughter.
This position has been put by the Model Criminal Code Officers' Committee which has argued that because the sentence for murder is no longer mandatory life imprisonment, mitigating circumstances which currently allow for the partial defences of provocation, diminished responsibility and infanticide, can be dealt with by judges in sentencing.
The implication is that judges are better placed than juries to determine the seriousness of a crime and the degree of responsibility of the person found to have committed it.
Those who either have reservations about or fully oppose any defence centring on the supposed `battered woman's syndrome' share some of the concerns of those opposed to the defence of provocation.
The central argument raised against the battered woman's syndrome as a defence for women who kill supposedly abusive male partners is the apprehension that it will be used inappropriately to justify homicide.
According to this line of argument, the fact of having been in a long-term abusive relationship does not, of itself, legitimise a woman killing the person who abused her.
This argument was put by Justice Michael Kirby, who was on the majority side in the three to two High Court ruling which denied Heather Osland's appeal against her previous conviction.
Justice Kirby maintained, `No civilised society removes its protection to human life simply because of ... a history of long-term physical or psychological abuse. There is no legal carte blanche, including for people in abusive relationships, to engage in premeditated homicide.'
The High Court specifically rejected appeals to establish the battered woman's syndrome as a new and separate category of defence.
There were two reasons given for this.
Firstly, Justice Kirby cast some doubt on the validity of the supposed syndrome as a psychological condition. Justice Kirby argued, `It is not a universally accepted and empirically established scientific phenomenon.'
Secondly it was argued that to establish the battered woman's syndrome as a defence would radically alter Australian law in a way which a majority of the justices apparently felt had not been justified.
High Court judge, Justice Ian Callinan, also in the majority, has claimed, `That this court should adopt a new and separate defence of battered woman's syndrome goes too far for the laws of this country.'
Once `battered woman's syndrome' has been rejected as a separate class of defence, it legitimacy then depends on the extent to which the abused woman can be judged to have been provoked or to have been acting in self-defence.
Those with reservations about these defences for women in abusive relationships who then kill their partners, maintain that provocation does not apply if the homicide were premeditated.
According to this line of argument, if a woman has calculatedly planned to kill her abusive husband or partner she cannot then claim to have been provoked beyond all reasonable control.
Those who hold this position maintain that planned, premeditated murder and a defence of provocation are incompatible. For those who support this view only a spontaneous killing can be said to have been provoked.
On the question of whether women in abusive relationships can be claimed to have acted in self-defence should they kill their partners, much would again appear to depend on the precise circumstances.
Once more, those with concerns about this legal defence claim that premeditated killing should reduce the likelihood of self-defence being accepted as it is argued that if a woman had time to plan to kill her partner she also had time to escape from him.
Critics of some abused women who claim to have killed in self-defence also argue that the threat supposedly justifying the killing needs to be immediate. Thus, it is claimed, if a woman kills her partner, for example, while he is sleeping, or in a drunken stupor, she cannot claim to have been acting in self-defence because she was not in immanent danger when she killed.
This point has also been made by Justice Kirby, who has claimed that if some self-defence pleas were accepted `we would be laying down the legal principle that people can go around shooting sleeping people ... I certainly could not agree to that ... You can't make people immune from the law of homicide'.
Arguments in favour of provocation and the battered woman syndrome as defences in murder trials
The principal argument offered in favour of the retention of the partial defence of provocation in a murder trial is that there are some circumstances in which it legitimately describes the situation which led to the killing.
This point has been argued by David Neal, a barrister and former commissioner at the Victorian Law Reform Commission. Mr Neal argues that not all homicides are the same and that the law should make allowance for `shockingly extenuating circumstances'.
Mr Neal cites as an example a South Australian woman who killed her sleeping husband. The woman had shortly before found out that her husband had raped their daughters as they grew up.
This woman was then tried twice. The first trial judge disallowed her defence of provocation and she was convicted. She appealed and at a retrial the second trial judge allowed her provocation defence. Though provocation is only a partial defence, the circumstances of the case were apparently considered to be so extreme that the jury acquitted her.
Mr Neal uses this case to demonstrate that there are circumstances under which a defendant can legitimately claim to have been provoked to such an extent that he or she could no longer control their actions.
Mr Neal sums up his position be claiming, `...most of us have a breaking point. We ought to insist that the law of homicide continues to acknowledge that reality.'
Mr Neal also makes a number of points in relation to the claim that instead of having juries determine if a defence of provocation applies, judges are better placed to make allowance for extenuating circumstances when passing sentence.
Firstly, he argues that judges' discretion in murder cases may be removed, as it has been in the past, and mandatory life sentences could be re-introduced. Mr Neal further claims that there is even the chance that a mandatory death penalty could be re-introduced. Under these circumstance, Mr Neal argues, judges would be in no position to make allowance for extenuating circumstances.
Secondly, Mr Neal argues that evaluating supposedly extenuating circumstances is more properly the function of the jury rather than the judge.
Mr Neal claims this is the case because the jury is intended to function as `arbiter of community values'. According to this line of argument if a judgement of extenuating circumstances is to be based on what the average reasonable citizen would do in the same situation, then this judgement is best made by average reasonable citizens assembled in a jury.
On the question of whether the battered woman syndrome should be allowable as a new legal defence, distinct from either provocation or self-defence, its supporters argue that the situation of an abused woman is sufficiently distinct to justify it being viewed as a separate defence in law.
Supporters of the battered woman syndrome defence stress that women in these circumstances suffer a combination of trauma-induced stress, fear (often for their lives), severely damaged self-esteem and, frequently, financial and emotional dependence. These set of conditions are sometimes described as `learnt helplessness'.
It is argued that women in these circumstances often perceive themselves as trapped and may reach a point where they see the death of their partner as the only possible release.
These points were made by Dr Jocelynne Scutt during Heather Osland's appeal to the High Court.
Dr Scutt has been paraphrased by Age journalist Karen Kissane making the following argument, ` judges should be required to tell juries to take into account the effect of years of battering, which can leave a woman feeling that the only way she can escape is to kill her jailer.'
It has also been argued that if the battered woman syndrome is disallowed as a defence, then the defences of both provocation and self-defence need to be re-examined to ensure they apply appropriately to women.
According to this line of argument, the traditional defence of provocation is based on a particularly masculine view of the world. Those who put this argument note that lawyers and judges often refer to a bar-room brawl as a possible situation where the defence could apply. In this scenario the provocation is immediate and the response is immediate.
Those who believe that other models of provocation are required argue that women frequently take longer to respond to a provocation than men. They also argue that there may be particular constraints, such as concern for the safety of children, which prevent a woman taking immediate retaliatory action. However, those who hold this view argue, even if a woman's response to provocation is more delayed, that does not mean that at the time she acts she is not behaving in a manner outside her control.
This point has been made by Moira Raynor, lawyer and former equal opportunity commissioner. Ms Raynor has argued that a woman `can suddenly snap after 30 years ... because of what had happened over decades.'
It has similarly been argued that allowance needs to be made for the peculiar circumstances of women when judging if they have acted in self-defence.
According to this line of argument, self-defence for a woman often does not mean striking out immediately at a perceived threat. It is claimed that the difference in strength between most men and women means that a woman might well be putting herself at even greater risk if she tried to defend herself immediately she was threatened or attacked.
Instead, it has been claimed, a woman who believes her life or physical well-being are in danger might well wait until the person who has abused or threatened her is asleep or otherwise incapacitated.
This point has also been made by Heather Osland, the woman who in 1996, was found guilty of the murder of her sleeping, drugged husband.
Heather Osland has stated, `Self-defence is not immediate; self-defence is your state of mind when you want to survive; it is the fear of not surviving another day.
It has also been argued that, for similar reasons, the requirement that the defendant have used force proportionate to the perceived threat is inappropriate when looking at women who claim to have acted in self-defence.
Bronwyn Bartal, a lecturer in law at Melbourne University, has been reported to have argued that because women are usually smaller and weaker than their male partners they may have to use a weapon when defending themselves, even if their partner has only punched or slapped them.
These arguments have been summed up by Age reporter Karen Kissane, who has noted, `most abused women who kill, attack their partner while he is unarmed, drunk, drugged or asleep - a reflection of differences in size and strength.'
It has also been argued that many women in abusive relationships, who believe their lives are in danger, may reasonably consider that leaving the relationship is no solution. It has been noted that a significant proportion of women killed by their partners are murdered when they attempt to end the relationship.
Some legal commentators have claimed that Australian courts are already beginning to interpret the defence of provocation in ways that are relevant to women in abusive relationships.
English QC, Helena Kennedy, has observed that Australia's common law `has developed in a way that is attuned to women's lives and the judges' decisions have now been consolidated in legislation which ... stipulates that the provocative conduct of the deceased is relevant "whether it occurred immediately before the act ... or at any previous time".'
Further implications
The immediate consequence of the High Court's dismissal of Heather Osland's appeal would appear to be to reduce the validity of the battered women syndrome as a defence for women in abusive relationships who kill their partners.
It seems that the High Court was concerned both by the fact that Frank Osland's killing was premeditated and that he had been killed while asleep.
Thus the supposed syndrome was treated exactly as a defence of provocation or self-defence would have been and the fact that neither provocation nor threat were literally immediate appears to have meant that in Heather Osland's case they were seen as invalid.
The court did rule that expert evidence regarding battered woman's syndrome could still be used as part of a defence in cases when the murder was not premeditated.
It is anticipated that Heather Osland's case will be taken to the United Nations' Human Rights Committee. A pardon may also be sought from the Victorian Attorney-General, Mrs Jan Wade.
It will be interesting to note what ruling the Human Rights Committee makes and what effect this has on interpretations of provocation and self-defence in Australia.
It will also be interesting to note what response the different state and the federal attorneys-general will make to the Model Criminal Code Officers Committee's probable recommendation that partial defences such as provocation and diminished responsibility be abolished.
Whatever the immediate reaction to these development, it would appear that the debate surrounding these issues is far from complete.
A number of fundamental points for further debate or clarification appear to emerge from both sides of this issue.
Firstly, it seems that there is concern that some forms of supposed provocation, even if actually felt as such by the defendant, are not reasonable and may not be acceptable as a partial defence. For example, provocation based on a man's belief that he should be able to control the movements of his partner.
There also appears to be a need to establish the extent to which provocation based on offence given to values specific to a particular cultural or ethnic group can be considered valid.
Secondly it is claimed that there may be a need to broaden the legal interpretation of the defence of provocation so that it allows for a more delayed reaction to cumulative abuse, threat or other maltreatment. This `slow-burn' reaction is claimed by some to be a more typically female response.
Thirdly, it may be necessary to take up the implications of Justice Michael Kirby's claim that `[Battered woman's syndrome] is not a universally accepted and empirically established scientific phenomenon.' The extent to which is does exist as a psychological condition capable of affecting a woman's behaviour would appear to need to be investigated outside the context of a law court.
Fourthly it may also be necessary to alter some of the constraints that limit a self-defence claim to make better allowance for the self-defensive behaviour of some women in abusive relationships.
Canada is currently reviewing the defence of provocation, particularly as it is invoked in domestic violence situations. It seems desirable that such a review be held in Australia.
Sources
The Age
5/9/98 page 1 (Extra section) analysis by Karen Kissane, `Kiss or kill'
1/12/98 page 13 comment by David Neal, `In defence of provocation'
3/12/98 page 20 letter from Phil Cleary, `Provocation is never a defence'
3/12/98 page 21 comment by Jocelynne Scutt, `Why must women suffer further under the law?'
7/12/98 page 12 letter from Peter Lynn, `An illogical defence'
11/12/98 page 4 news item by Jason Koutsoukis and Penny Fannin, `Court rejects abuse as defence'
13/12/98 page 25 comment by Debbie Kirkwood, `Why this woman should be set free'
14/12/98 page 12 editorial, `Osland: justice lags behind'
14/12/98 page 13 comment by Tania Ewing, `How feminists sacrificed Heather Osland'
16/12/98 page 14 letter from Debbie Kirkwood, `Osland a victim for 13 long years'
16/12/98 page 14 letter from Gail Hubble, `No reason to overturn verdict'
16/12/98 page 14 letter from Fiona McIlwaine, `Fighting for justice for abused women'
17/12/98 page 15 comment by Marcia Neave, `At law, even killers deserve compassion'
27/12/98 page 22 letter from Yogita Thompson, `Equal terms?'
29/12/98 page 13 comment by Heather Osland, `Heather: my story'
The Herald Sun
11/12/98 page 10 news item by Fay Burstin, `Battered woman loses appeal'
16/12/98 page 20 letter from Allyson Foster, `Wrong message'
17/12/98 page 19 comment by Jill Singer, `This killer got justice'
24/12/98 page 17 comment by Jill Singer, `Feminism with fury'
24/12/98 page 18 letter from the Release Heather Osland Campaign, `Justice blind to brutality'
30/12/98 page 20 letter from Don Bruce, `Violence is not answer'