Defending Battered Women on Charges of Homicide: The Structural and Systemic Versus the Personal and Particular

Abstract:     
In this chapter we examine legal responses to battered women who have killed abusers with a special focus on indigenous women in Australia. For many battered women facing charges arising from killing a violent man, the capacity to successfully argue self-defence continues to be limited by the gender bias of the defence and by stereotyped understandings of women, intimate relations, and commonly also of indigeneity, that shape the reception of narratives concerning domestic violence. A well-established literature suggests that the introduction of expert testimony about battered woman syndrome (BWS) in support of defences to homicide has contributed to these stereotypes and to the medicalisation and pathologisation of battered women's behaviour. While compassionate or merciful outcomes are sometimes evident, mercy too often substitutes for an acquittal and distorts women's experiences rendering them as pathetic or irrational. We agree with that literature, but in this paper our focus is somewhat different. Legal analysis in Australian cases typically pays insufficient attention to the social context of the defendant and the offence. Therefore, in this chapter we examine the consequences of the failure of the criminal law to recognise and respond to structural disadvantage. We also argue for greater attention to prosecutorial discretion as an important domain of legal decision-making. Most of the recent cases we have identified of women charged with a homicide offence against a background of domestic violence have resulted in guilty pleas. Few have gone to trial.

Keywords: battered women,domestic violence,homicide,defences,structural disadvantage

JEL Classifications: K14, K42

Accepted Paper Series