Homicide, Self-Defence and the (Inchoate) Criminology of Battered Women

Abstract

Law reform is increasingly underpinned by empirical research. This is clearly evident in contemporary reform of the laws of self-defence and homicide. These reforms have been motivated largely by concern for battered women who kill their abusive partners. An extensive body of empirical criminological research has been utilised to identify bias in the operation of the traditional law of homicide and self-defence and has been relied upon by many law reform bodies. This article identifies and evaluates the “implicit criminology” constituted by these empirical studies. Five matters that have formed the backdrop to contemporary reform are investigated: the origins of the law of murder; the operation of the law of self-defence; the historical utilisation of mental state defences by battered women; the circumstances in which battered women kill their abusers; and the trial as a key location for processing these offenders. It is argued that the implicit criminology that has driven reform of the law of homicide and self-defence is largely undeveloped or unsubstantiated. Despite the centrality of concern for battered defendants in much contemporary discussion in criminology and the criminal law, it appears that there is still substantial research to be done to clarify the circumstances in which victims of chronic violence kill their abusive partners, how these defendants experience the law and the availability of self-defence to them. What seems to have been established may be more complex, contingent and inchoate than previously acknowledged.

Keywords: Battered woman, battered woman syndrome, self-defence, insanity