Crime, punishment, family violence, and the cloak of legal invisibility

Abstract

In this article, the authors trace how the Anglo-Australian system of criminal law constructs crime within the family differently from other forms of crime. The zone of legal impunity for intrafamilial crime was carved out by special defences and immunities, such as provocation and marital rape, as well as policing policies and practices that effectively decriminalised “domestic” forms of physical and sexual abuse. Legal impunity was never absolute, and there were notable exceptions where the familial and gendered aspects of the crime in fact aggravated the offence, such as the law's treatment of spousal murder by females as a form of “petty treason”, warranting the most severe punishment of burning at the stake. Reforms in the late twentieth century removed overt forms of gender discrimination from the criminal law, exposing a new legal visibility of crime within “the family”, though as the authors conclude, there are still remnants of differential treatment in fields of sentencing law and practice.