Self-defence and family violence – is there a problem?
6.1Self-defence is often claimed by victims of family violence who kill their abusers, but is not usually successful. Our review of cases since 2001 identified that self-defence was claimed in 10 out of 16 cases that went to trial, but only three defendants were successful and were acquitted. Six were convicted of manslaughter and one of murder. In all 10 cases where self-defence was claimed, the defendant was a woman who had killed an abusive male partner.
6.2Given the weight of academic literature and law reform activity on this topic, it has, as Julia Tolmie puts it, become “trite” to point out that defences to murder do not equitably accommodate the circumstances in which victims of family violence, typically women, tend to kill their abusers. This inequity is said to arise because the law of self-defence, which developed primarily in the context of male violence and male standards of reasonableness, fails to recognise the different ways in which women typically use defensive force. Moreover, because women are most likely to use defensive force in response to family violence, this bias is deepened by persistent misunderstandings about family violence and victims’ responses to it.
6.3In this chapter, we consider the role of gender in the development of self-defence and how misunderstandings around family violence can disadvantage victims who claim self-defence. We then examine the interrelated concepts of imminence, lack of alternatives and proportionality which the courts have developed to assess whether the use of defensive force was reasonable. We conclude that, while section 48 is, on its face, capable of accommodating the experience of victims of family violence who kill their abusers, these concepts can operate as a barrier to a claim of self-defence in those circumstances. The concern is that defensive action by a victim of family violence can be dismissed as not being an action of self-defence simply because it does not accord with perceptions of what self-defence “really” is. While evidence of battered woman syndrome has gone some way to addressing these issues, its use is now criticised for a number of reasons, discussed below, and is no substitute for substantive equality in terms of the law itself.