The abolition of defensive homicide

A step towards populist punitivism at the expense of mentally impaired offenders

Madeleine Ulbrick, Asher Flynn, Danielle Tyson

Research output: Contribution to journalArticleResearchpeer-review

Abstract

The offence of defensive homicide was abolished in Victoria in November 2014, following a widely held perception that it was being abused by violent men. While
primarily associated with battered women who killed in response to prolonged family violence — but who were unable to establish their offending as self-defence — a less publicised rationale underpinning the introduction of defensive homicide was to provide an alternative offence for offenders with cognitive impairments not covered by the mental impairment (formerly the insanity) defence. Cognitive impairments are complex and varied in their nature and symptomatology. Offenders presenting with cognitive impairments therefore require an appropriate range of legal responses to capture the nuances and appropriate moral culpability of their conduct. Drawing from an analysis of the cases of defensive homicide heard over its 10–year lifespan, this article contends that the abolition of defensive homicide did not adequately take into consideration the potential impacts on individuals whose mental conditions are
not typically covered by the restrictive mental impairment defence. We further
argue that the decision to abolish defensive homicide was driven by dominant,
populist voices, without sufficient attention given to the offence’s potential to
achieve the aims underpinning its enactment, including providing an alternative
offence for women who kill in response to prolonged family violence.
Original languageEnglish
Pages (from-to)324-370
Number of pages47
JournalMelbourne University Law Review
Volume40
Issue number1
Publication statusPublished - 2016

Cite this

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title = "The abolition of defensive homicide: A step towards populist punitivism at the expense of mentally impaired offenders",
abstract = "The offence of defensive homicide was abolished in Victoria in November 2014, following a widely held perception that it was being abused by violent men. Whileprimarily associated with battered women who killed in response to prolonged family violence — but who were unable to establish their offending as self-defence — a less publicised rationale underpinning the introduction of defensive homicide was to provide an alternative offence for offenders with cognitive impairments not covered by the mental impairment (formerly the insanity) defence. Cognitive impairments are complex and varied in their nature and symptomatology. Offenders presenting with cognitive impairments therefore require an appropriate range of legal responses to capture the nuances and appropriate moral culpability of their conduct. Drawing from an analysis of the cases of defensive homicide heard over its 10–year lifespan, this article contends that the abolition of defensive homicide did not adequately take into consideration the potential impacts on individuals whose mental conditions arenot typically covered by the restrictive mental impairment defence. We furtherargue that the decision to abolish defensive homicide was driven by dominant,populist voices, without sufficient attention given to the offence’s potential toachieve the aims underpinning its enactment, including providing an alternativeoffence for women who kill in response to prolonged family violence.",
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The abolition of defensive homicide : A step towards populist punitivism at the expense of mentally impaired offenders. / Ulbrick, Madeleine; Flynn, Asher; Tyson, Danielle.

In: Melbourne University Law Review, Vol. 40, No. 1, 2016, p. 324-370.

Research output: Contribution to journalArticleResearchpeer-review

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AU - Tyson, Danielle

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AB - The offence of defensive homicide was abolished in Victoria in November 2014, following a widely held perception that it was being abused by violent men. Whileprimarily associated with battered women who killed in response to prolonged family violence — but who were unable to establish their offending as self-defence — a less publicised rationale underpinning the introduction of defensive homicide was to provide an alternative offence for offenders with cognitive impairments not covered by the mental impairment (formerly the insanity) defence. Cognitive impairments are complex and varied in their nature and symptomatology. Offenders presenting with cognitive impairments therefore require an appropriate range of legal responses to capture the nuances and appropriate moral culpability of their conduct. Drawing from an analysis of the cases of defensive homicide heard over its 10–year lifespan, this article contends that the abolition of defensive homicide did not adequately take into consideration the potential impacts on individuals whose mental conditions arenot typically covered by the restrictive mental impairment defence. We furtherargue that the decision to abolish defensive homicide was driven by dominant,populist voices, without sufficient attention given to the offence’s potential toachieve the aims underpinning its enactment, including providing an alternativeoffence for women who kill in response to prolonged family violence.

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