Thrice Punished: Battered Women, Criminal Law and Disinheritance

Elizabeth Sheehy & Barbara Hamilton, “Thrice Punished: Battered Women, Criminal Law and Disinheritance” (2004) 8 Southern Cross University Law Review 96.

35 Pages Posted: 9 May 2013

See all articles by Barbara Hamilton

Barbara Hamilton

Queensland University of Technology

Elizabeth A. Sheehy

University of Ottawa - Common Law Section

Date Written: 2004

Abstract

The legal system deals harshly with an abused woman who kills her male partner. It metes out severe ‘punishment’ bearing scant relation to the ‘crime’ of choosing a violent man as a partner: this results in the woman being “thrice punished”. Her first punishment is enduring hell in the relationship itself, without access to effective legal intervention or protection. Her second is in facing criminal charges at a time when she is likely to be suffering the effects of post-traumatic stress occasioned by violence in the relationship, in a context in which battered women face serious barriers to obtaining a fair trial on the merits. These barriers include limited access to feminist legal representation that is informed by knowledge about male violence against women and gender bias in the law, and the relative unawareness of the reality of domestic terrorism on the part of a judge and jury. Her third punishment occurs even if she manages to obtain a conviction for manslaughter rather than for murder: any inheritance through the deceased by will, intestacy, superannuation, pension right, joint tenancy, or family provision right can be forfeited according to the public policy rule that a killer cannot benefit from her/his own wrongs. An acquittal on a charge of murder or manslaughter does not forestall the operation of the public policy rule.

Two pivotal cases in the past decade, one Australian, Troja v Troja (Troja), and one Canadian, Attorney General of Canada v St-Hilaire (St-Hilaire), tell this story compellingly. These cases are central in their jurisdictions. Troja is significant in Australia because a senior court adhered to a rigid formulation of the forfeiture rule despite more flexible previous interpretations of the rule, prompting the legislature to enact the Forfeiture Act 1995 (NSW). St-Hilaire is important because it is a rare example of a reported decision disinheriting a woman convicted of homicide; it seems to be the only such reported case involving a woman who was acknowledged to have been in a violent relationship.

The two cases have many similarities: both women were abused by their male partners although the abuse was different in character; both women were seemingly working class women; both were characterised by the evidence as aggressors themselves; both were found guilty of manslaughter after being charged with murder; and both were disqualified from inheritance by the public policy rule. In St-Hilaire the forfeiture of pension rights was occasioned by the Civil Code of Québec rather than by the common law rule, known in Australia and the United Kingdom as the “forfeiture rule,” that was invoked in Troja.

Troja caused the New South Wales Parliament to pass legislation permitting the courts to modify the harshness of the public policy rule where killing has occurred in circumstances of low moral culpability. However, the argument here is that the court had the tools available to assist Jeanna Troja and legislative intervention should have been unnecessary. Constance St-Hilaire’s case has received none of the same legal and media attention, such that legislative change in Canada is improbable. In both Australia and Canada the majority of women plead guilty to manslaughter in these cases,6 thus remaining outside the light of a public trial and adjudication. Women who are convicted of manslaughter in such circumstances will be denied their claims by insurance companies and through intestate and testamentary succession. The claims seem to be litigated rarely, as the women would have scant resources with which to contest decisions by companies and trustees to deny payment. Battered women who have killed violent men thus remain in the shadows of the law in more ways than one.

Keywords: thrice punished, abused women killing partner, killing male partner, battered women, fair trial & battered women, gender bias & law, Troja v Troja, Attorney General of Canada v St-Hilaire, abuse by male partners, abused women, women charged with murder, women convicted manslaughter

Suggested Citation

Hamilton, Barbara and Sheehy, Elizabeth A., Thrice Punished: Battered Women, Criminal Law and Disinheritance (2004). Elizabeth Sheehy & Barbara Hamilton, “Thrice Punished: Battered Women, Criminal Law and Disinheritance” (2004) 8 Southern Cross University Law Review 96. . Available at SSRN: https://ssrn.com/abstract=2262001

Barbara Hamilton

Queensland University of Technology ( email )

2 George Street
Brisbane, Queensland 4000
Australia

Elizabeth A. Sheehy (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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