The Victorian operation of defensive homicide: Examining the Delegitimisation of Victims in the Criminal Court System

In November 2005, the Victorian government implemented a new offence of defensive homicide, alongside the abolition of the partial defence of provocation. This new category of homicide was introduced not as a replacement for the abolished provocation defence, but rather as a safety net between murder and an acquittal for women who kill in response to prolonged family violence. Since its implementation, the operation of this new offence has already begun to raise concern, particularly in relation to its successful use in the 2010 trial of Luke Middendorp. Using defensive homicide as a case study, this article examines the continued delegitimisation of victims in the Victorian criminal justice process. Specifically, it draws from a transcript analysis of cases resolved in the first seven years of the offence s operation, to consider the use of the offence in three contexts: when raised by men who have killed a female intimate partner; where successfully used in cases of lethal male-on-male violence; and where applied to female defendants who have killed in response to prolonged family violence. The resulting theoretical discussion suggests that, in the wake of abolishing provocation, the Victorian law of homicide has continued to minimise the status of victims and in so doing has been unable to distance itself from the narratives of victim blame, denigration and delegitimisation that previously were linked to the operation of the controversial provocation defence.