CONTENTS I Introduction II Law, Equality and Equal Consideration A The Principle of Equality before the Law B Equal Consideration and the Problematic of Systemic Inequality C The 'Less Than' Question D Equal Consideration and the Limited Potential of Intuition III An Equality Question: Self-Defence and Abused Women A Abused Women and Equal Consideration: Self-Defence in England and Wales 1 Self-Defence: Subjective and Objective Tests 2 Householders and Conceptualising Reasonable Force 3 Imminency and Reasonably Necessary Force B Self-Defence in Australia: Queensland and Victoria 1 Self-Defence and Law Reform in Queensland 2 Self-Defence and Law Reform in Victoria IV Recognising and Responding to the Experience of 'Others': Abused Women Who Kill and 'Informed Imagining' A Bridging the Divide: 'Informed Imagining' V Conclusion: The Potential of Equal Consideration I Introduction
Equality of treatment--understood as treatment of like alike and unlike differently--is a central concern of human existence. And, concern for equal treatment is founded on the principle of equality itself, which holds that despite marked differences and inequalities between people and groups of people, an inherent equality as human beings remains. The principle of equality as human beings is then often formulated as requiring that all persons be treated with 'equal concern and respect', (1) as being of 'equal worth' (2) and having equal dignity. It can similarly be formulated as a principle requiring that each person's interests are given equal weight or that 'all persons should be given equal consideration'. (3) As Sen maintains, 'it is difficult to see how an ethical theory can have general social plausibility without extending equal consideration to all at some level'. (4) In what follows, the expression 'equal consideration' will be preferred, but it is taken to be reflective of these various formulations.
In the context of the criminal law, the principle of equality before the law is beyond question. But here we are interested in the application of principle and with an interrogation of what an equality principle requires for those who come before the adversarial criminal justice system. The focus is on the experience of battered women who kill and the capacity of the law to engage with their experience in the context of a claim of self-defence, where questions like 'Why didn't she just leave?', 'Why didn't she call the police?', 'Why did she strike when he was asleep (passed out)?', 'Why did she use a weapon?' or 'Why did she make a plan to kill?', fall to be answered by a jury. Though battered women who kill may do so in myriad ways and circumstances, these bear little resemblance to the infliction of lethal force by a 'typically' male killer responding to an immediate attack, made so familiar by the 'imminent' threat scenarios that grace our television screens night after night. How does equality, and the equal application of the law of self-defence, get a foothold here in the face of these differences?
We argue that equality of treatment in this circumstance and others is fundamentally about recognising, understanding and responding to difference. Our argument is that it is not possible to understand the necessity or reasonableness of her response without a full consideration of her lived experience as a battered woman. And, that the measure of the law's capacity to treat her equally, in considering her claim to self-defence, is the extent to which it facilitates and enables particular attention being paid to her experience and the experience of battered women in general.
The focus of our analysis is on the substantive law of self-defence and its application. This should not be taken as suggesting that other aspects of the criminal justice system's treatment of abused women who kill are immune from being measured against an 'equal consideration' yardstick. (5) The purpose is to demonstrate that an entitlement to equal consideration and an understanding of what this requires does in fact operate as a useful evaluative tool. Our restriction enables the question to be asked: to what extent has the law of self-defence and its reform enabled engagement with the reality of abused women? And, to see this question for what it is--an equality question with difference at its heart.
We contend that our intuition provides a necessary but insufficient foundation for engaging with the question of whether a difference will justify or require differential treatment. We look therefore at the importance of imagining ourselves into the shoes of others in moral reasoning, in order to respond to difference and the lived experiences of others, together with the limits on our capacity to actually do so.
We develop this argument over three sections. The first section explores the concept of 'equal consideration'. A key aspect of this is an understanding of how intuition is both an enabling and a restrictive mechanism. In the second section we turn our focus to the problematic of abused women who kill. We provide an overview of the law of self-defence in England/Wales, Queensland and Victoria, highlighting how the latter has the potential to realise 'equal consideration'. However, even in Victoria, where reform has gone furthest, challenges remain. In the final section we argue that recognising and responding to the lived experiences of abused women necessitates a process of 'informed imagining'.
By way of restatement, our underlying premise is that the principle of equality, and specifically, equality before the law, provides an axiomatic foundation from which to consider the treatment of people who come before the law. It is a foundation from which to hold criminal law, criminal process and 'criminal justice decision-makers' to account, (6) and a platform to call for change. Our purpose then is to provide a foundation for continuing engagement in progressive legal scholarship that encourages an approach towards what Lacey refers to as 'an ethical law'. (7)
II Law, Equality and Equal Consideration
A The Principle of Equality before the Law
The Universal Declaration of Human Rights recognises the 'inherent dignity and ... the equal and inalienable rights of all members of the human family' (8) and proclaims in art 1 that '[a]ll human beings are born free and equal in dignity and rights'. Such instruments accept as foundational the principle that '[a]ll human beings are by their nature equal' (9) leading to another fundamental principle: the entitlement to equality before the law in our criminal justice system, and our legal system more generally. Equality before the law is enshrined in international and domestic law through declarations, conventions, Acts of Parliament and in the common law. (10) In Green v The Queen, French CJ, Crennan and Kiefel JJ of the High Court of Australia described the principle of equality before the law as 'the starting point of all other liber ties. (11) Indeed, so foundational is the principle that it was described by the Privy Council in Matadeen v Pointu as 'one of the building blocks of democracy'. (12) The Privy Council went further to say 'that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. (13)
In this formulation, '[j]ustice involves the right to treatment as an equal, not the right to equal treatment'. (14) This is entirely consistent with the principle that like be treated alike because, in the absence of a relevant difference, inequality of treatment could not amount to treatment as an equal. (15) But where relevant differences do exist and laws and legal processes are applied equally, without regard for these differences, people are often not treated as equals. (16) Expressed more forcefully and without qualification, '[t]here is no greater inequality than the equal treatment of unequals'. (17) This is where the principle of equality--understood as an entitlement to equal consideration -- enables us to grapple with the reality of unequal treatment. It requires us to look at the effect of the law or legal process and ask: having full regard for the differences of and between those coming before the law, is this person being treated as less? This is to accept that the 'equal value' of human beings may require that 'what is different ... be treated differently'. (18)
Thus the character of the treatment as same or different does not itself determine whether a person is treated as less. The focus must be on the interaction between treatment and the differences between the people treated. In this investigation, close consideration must be given to the identification of 'relevant differences' and the nature and effect of these differences. (19) As Rhode puts it, '[t]he crucial issue becomes not difference, but the difference difference makes'. (20)
To take a simple example: it might be thought that all persons within a community have an equal opportunity to enter the local courthouse and thereby physically access an important institution of justice. The door automatically opens if people present themselves before it. Yet, if the door is atop a flight of steps and there is no ramp or lift, then it is apparent that there is a denial of equal access to justice for a mobility-impaired person restricted to a wheelchair. To provide only the same physical opportunity for access in this case--entry at the top of a flight of steps--is to treat the mobility impaired person as less. The mobility impairment is therefore, in this context, a 'relevant difference', and equality requires the provision of a ramp or other method guaranteeing true equality of access.
As the above example makes clear, in considering the 'difference difference makes', from a foundation of equal respect, equal worth and equal dignity, it is apparent that an equality question cannot be answered in the abstract. (21) It must be answered by giving close consideration to the concrete...