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

Summary of issues

5.72In summary, it appears that there is a risk that the criminal justice system is not adequately providing for victims of family violence who commit homicide, in three key respects:

(a) First, the self-defence concepts of imminence, proportionality and lack of alternatives have the potential to unfairly exclude victims of family violence – typically women – from successfully relying on self-defence in circumstances where they had no real alternative to the use of force.
(b) Second, while there is no clear evidence that the repeal of provocation is resulting in harsher outcomes for these defendants, there may nonetheless be a legitimate need for the law to provide for greater recognition of reduced culpability of defendants who kill their abusers other than in self-defence.
(c) Third, the existence of myths and misconceptions around family violence, including in particular the belief that, to stop the violence, the defendant needs only to leave the relationship, may result in inequitable treatment of such defendants.

5.73We conclude that some reform is needed to ensure that the law applies equitably to victims of family violence. There are a number of options for reform, many of which can be considered as a package of reforms, rather than alternative options. These options include:

(a) reform the law of self-defence, discussed in Chapter 7;
(b) the introduction of a partial defence or separate homicide offence, discussed in Chapter 8;
(c) changes to the current approach to sentencing, including the introduction of sentencing guidance for defendants who are victims of family violence, discussed in Chapter 9;
(d) amending the Prosecution Guidelines to encourage greater recognition of the impacts of family violence in charging practices and plea negotiations (Chapter 9); and
(e) reforms aimed at improving understanding of the social context and the dynamics of family violence (Chapter 9).