Chapter 5
Problems with the current law – is there a need for reform?

5.1In this chapter, we identify potential problems with how the criminal justice system responds to victims of family violence who commit homicide and discuss whether there is a need for reform. The perceived problems can be separated into three broad categories of:

(a) problems in relying on self-defence;
(b) where self-defence does not apply, how the law recognises the reduced culpability of defendants who commit homicide in response to family violence; and
(c) other problems that arise in practice from a misunderstanding of the dynamics of family violence.

5.2Categories (a) and (b) concern problems with the law itself. Category (c) is focused on problems in practice that, notwithstanding the law, can act as a barrier to achieving substantive equality in how the law accommodates the experiences of victims of family violence.

5.3Our analysis in this chapter is guided by the principles identified in Chapter 1, namely that:

(a) the law should apply equitably to all defendants, including victims of family violence, and should be free from any form of gender or other bias;
(b) the law of homicide should reflect the context in which homicides typically occur, and any reform must be driven by an understanding of the actual context in which victims of family violence commit homicide; and
(c) the law of homicide should reflect community values and, in particular, the sanctity of life, balanced against the individual’s right to safety and to be free from torture and cruel or degrading treatment.