Scope, context and approach
Scope of this project
1.10The terms of reference for this project, which are in Appendix A, require us to consider whether the law in respect of victims of family violence who commit homicide can be improved, including whether:
- the test for self-defence, in section 48 of the Crimes Act 1961, should be modified so that it is more readily accessible for victims of family violence;
- a partial defence to murder is justified for victims of family violence and, if so, in what circumstances; and
- current sentencing principles properly reflect the circumstances of victims of family violence who are convicted of murder.
1.11In this Report, we use the general term “victim of family violence” to refer to all persons who have suffered abuse, regardless of whether that person is an adult or child or is being abused by a partner, parent or some other family member. Similarly, our use of “abuser” refers to all perpetrators of family violence, regardless of their relationship with the victim.
1.12We use the term “family violence” in a broad sense. Consistent with the FVDRC, we adopt the definition of the Taskforce on Violence within Families, which defines family violence as:
… a broad range of controlling behaviours, commonly of a physical, sexual and/or psychological nature, which typically involve fear, intimidation and emotional deprivation. It occurs within a variety of close interpersonal relationships, such as between partners, parents and children, siblings and in other relationship where significant others are not part of the physical household but are part of the family and/or are fulfilling the function of family.
1.13At times in this Report, it is necessary to refer to the different forms of family violence. We use the categorisation adopted by the FVDRC, which separates family violence into three forms of abuse:
- Intimate partner violence: any behaviour within an intimate relationship (including current and/or past live-in relationships or dating relationships) that causes physical, psychological or sexual harm to those in the relationship.
- Child abuse and neglect: all forms of physical and emotional ill-treatment, sexual abuse, neglect and exploitation that results in actual or potential harm to the child’s health, development or dignity.
- Intrafamilial violence: all forms of abuse between family members other than intimate partner violence and child abuse and neglect, including abuse/neglect of older people aged approximately 65 years and over by a person with whom they have a relationship of trust, violence perpetrated by a child against their parent, violence perpetrated by a parent on their adult child, and violence among siblings.
1.14Throughout this Report, we also use the terms “primary victim” and “predominant aggressor” to describe the dynamics of intimate partner violence. We adopt these terms from the FVDRC, which applies a “primary victim/predominant aggressor analysis” in its review of intimate partner homicides. This analysis requires looking at patterns of abuse and harm across the entirety of an intimate partner relationship. The “predominant aggressor” is the person “who is the most significant or principal aggressor … and who has a pattern of using violence to exercise coercive control”. The “primary victim” is the person “who (in the abuse history of the relationship) is experiencing ongoing coercive and controlling behaviours from their intimate partner”. The primary victim/predominant aggressor analysis is discussed further in Chapter 2.
1.15These key terms and others are also set out in a glossary in Appendix D of this Report.
What this Report does and does not coverTop
1.16While our terms of reference refer to victims of family violence who “commit homicide”, in this Report, we focus on victims of family violence who kill perpetrators of family violence (abusers). We do not consider the law in relation to victims of family violence who kill third parties, although we recognise in some cases that offending may be caused or explained in part by the defendant’s prior history of abuse. We have taken this approach for several reasons. First, the FVDRC’s Fourth Annual Report, which led to this reference, raised concerns in relation to primary victims who kill predominant aggressors, rather than primary victims who kill generally. Second, the problems identified in this Report in relation to self-defence and reduced culpability arise by virtue of the dynamics between the homicide defendant as a victim of family violence and the deceased as a perpetrator of family violence. In most of the cases we have considered, the homicide defendants were primary victims of intimate partner violence by the deceased. Sometimes, however, a person other than a primary victim may kill an abuser. Accordingly, in this Report, we also consider victims of family violence who kill in response to other forms of family violence, namely child abuse and neglect, and intrafamilial violence. What will be relevant in any case is the link between the homicide and the prior abusive conduct of the deceased.
1.17This Report is not a first principles review of the law of homicide or defences to homicide. We are limited in our consideration of the law to how it applies to victims of family violence. We do not, therefore, consider the law in respect of other defendants who may also be less blameworthy in a comparative sense. We further note that this reference is limited to the offence of homicide. It does not cover other offences that may be responses to family violence, such as assault or failure to protect a child. We are conscious, however, of the potential for unintended consequences that necessarily arises whenever the law is of specific, rather than general, application.