Homicide is a distinctly male offence. The majority of homicides in Australia are committed by men, against men. This has shaped the laws around homicide, including the laws around the defences to homicide, to the extent that these defences are not easily accessible to women who kill. Of the comparatively low number of women who commit homicide, the great majority kill their intimate partners, and this is in response to immediate or extended violence. It is legal to use reasonable force in self-defence, even where that force results in a fatality. However, self-defence, which is a complete defence to homicide, has a gendered history, and women who kill face significant difficulty convincing juries that their actions constitute self-defence. Academics and legal commentators have expressed that it is no longer the law but rather, prevailing community understandings and institutional attitudes toward domestic violence that continue to make self-defence relatively inaccessible to women. In its Final Report recommendations to the Victorian Parliament, the Victorian Law Reform Commission (VLRC) expressed concern that women were failing to successfully raise self-defence at trial, and referred to Bradfield’s study of 76 cases between 1998 - 2000 which found that 41.4% of women charged with homicide pleaded guilty to murder or manslaughter. Sheehy, Stubbs and Tolmie’s research of 67 homicide cases between 2000 - 2010 specifically involving battered women defendants, found that 64% of battered women pleaded guilty and only 16% secured an acquittal. Stubbs and Tolmie made the observation that for battered women defendants in Australia, even where self-defence would have been available, “pleading guilty to manslaughter…in exchange for the Prosecution agreeing to drop murder charges, has emerged as perhaps the most common defence strategy…” It is problematic that battered women would elect to plead guilty to manslaughter, which carries a maximum penalty of 25 years’ imprisonment, rather than attempt to acquire an acquittal by raising self-defence. This bespeaks the substantial challenges women face trying to prove self-defence. In fact, little is known about the small number of cases that involve women who are able to secure acquittals by successfully raising self-defence. This is because acquittals are not reported, and researchers in this area must rely on the media’s selective reporting. Acquittals are “truly invisible as, for several reasons, we know very little about the reasoning of judges and juries in those cases”, and especially because acquittals are rare. In this research paper, I analyse two cases involving female defendants who are acquitted of homicide charges, against the background of the current debate on battered women and self-defence. The cases are R v Kasparian and R v Chipreo. They were chosen because they fit the topic criteria and because of practical reasons of access. I was able to obtain the transcripts for these two cases through my employment at the Supreme Court of New South Wales. I note that the defendant in Kasparian is not a ‘battered woman’ in that there was no history of physical violence in her relationship. The case nevertheless provides insight into the current issues surrounding self-defence and battered women.
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Sep 1, 2024
Open Access
Julia Tolmie 