Defensive homicide as a legal defence was set in legislative concrete in Victoria in 2005 as part of feminist reforms, but repealed in 2014. Defensive homicide was applicable as a defence when the situation included a person killing another person in circumstances that essentially make it murder, but the penalty is less due to the extenuating circumstances of the crime. Defensive homicide carried a 20-year maximum prison sentence.
The accused had reason to believe that their defensive actions were reasonable (i.e. self defence), but that those grounds were not, in fact, reasonable at all. The point was to punish the person for their crime, but not punish them too much.
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Why the defensive homicide defence law existed in Victoria
The law was created to protect women who killed their intimate partners, who had been abusing them violently and/or emotionally, usually for long periods of time. The woman may have murdered her partner in his sleep, for example. This is clearly not a murder in self-defence in the moment per se, but was the result of circumstances that require a bit more compassion than other types of murders may.
The law was also designed to protect vulnerable mentally ill people who did not fit neatly into the mental impairment defence. There are high rates of mental illness amongst homicide offenders, with research showing that out of 33 defensive homicide convictions, 20 had a history of mental illness or some mental impairment. The current Victorian laws of mental impairment defence are rarely used and are extremely restrictive (which is a good thing).
The mental impairment defence is only used in about one per cent of higher court cases, and in the past has been used primarily in cases of schizophrenia. Cognitive impairment has not been part of this defence, leaving many offenders stuck in no mans land legally.
The reason for this is that the test for mental impairment is that the person doesn’t understand their actions or that their actions were wrong. This means most people with serious mental illness will not pass this test – they know what they did was against the law, and that is not in question. It is making sure a person is legally culpable, but morally less culpable.
The law was applicable to everyone, however there was controversy when Luke Middendorp, who killed his wife, used it successfully. Middendorp was the only man ever convicted of defensive homicide for killing an intimate partner, however this was jumped on as ‘thugs getting away with murder’, and an example of why the law was ultimately scrapped.
After two government reviews, the law was scrapped in November 2014, with the then-government’s ‘law and order’ agenda. Now, offenders with significant cognitive impairment are trapped legally between manslaughter and murder chargers, and a woman who kills a violent partner can only plead not guilty due to self defence, or plead guilty to manslaughter and hope for the best.
Victoria now shares the dubious title of the only state without a ‘halfway house’ charge between murder and manslaughter with Tasmania.
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