Contents

Summary

Greater recognition of reduced culpability

30Part 3 considers how the law and the legal system should take into account the “reduced culpability”, or lesser blameworthiness, of victims of family violence who kill their abusers. Some homicides by victims of family violence will not fit the criteria for self-defence – however reformed. Such cases may, however, involve significant mitigating factors, such as a lengthy and severe history of abuse. In the main, reduced culpability for homicide is recognised through the charge filed by the prosecutor or accepted by the jury as proved – murder, manslaughter or some lesser offence – and/or through sentencing.

31Part 3 canvasses a range of reform options for better recognising reduced culpability for homicide. This includes the introduction of a partial defence to murder (which if successfully raised results in a manslaughter conviction); the creation of a specific homicide offence (which arguably has advantages in terms of “fair labelling”);16 and changes to sentencing laws and practice.

32In addition to these legislative reform options, Part 3 also examines “softer” options, such as charging practice and guidelines. In this context, we recommend that, when the Solicitor-General’s Prosecution Guidelines are next reviewed, the Solicitor-General give consideration as to whether they should include reference to the potential relevance of a defendant’s history as a victim of family violence.

recommendation

16The concern of the principle of “fair labelling”, Ashworth and Horder explain, is “to see that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking”: Andrew Ashworth and Jeremy Horder Principles of Criminal Law (7th ed, Oxford University Press, Oxford, 2013) at 77.