Battered women charged with homicide: advancing the interests of indigenous women.

• Jurisdiction: Australia
• Date: 01 April 2008
• Author: Stubbs, Julie,Tolmie, Julia
• Published date: 01 April 2008
• Author: Stubbs, Julie

This article examines legal responses to women charged with a homicide offence arising from killing an abusive partner and reviews Australian cases over the period 1991-2007. We focus on cases involving Indigenous women, due to their very substantial overrepresentation as victims and offenders in intimate homicides in Australia. We find that the Australian case law to date has not developed principles adequate to reflect battered women's interests. Our analysis of cases involving Indigenous battered women indicates that the battering they had experienced and their disadvantaged circumstances were commonly read as indicators of personal deficits, and any evidence of structural disadvantage was muted. This research suggests that the limited impact of battered women's litigation in Australia is in part attributable to the psychological individualism of the criminal law identified by Norrie (2001, 2005), which is not confined to the trial stage but also shapes prosecutorial discretion and sentencing. We urge future research to shift the focus beyond battered woman syndrome and the trial process to examine plea bargaining and sentencing, and we suggest that advocates on behalf of battered women cannot rely on case law developments to deliver change but need to pursue multiple strategies.

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Intimate violence has long been recognised as a context where the boundaries between victim and offender may be blurred. Battered women who resist their abuser, or retaliate, are at risk of being seen as the aggressor and of being criminalised, while at the same time having their victimisation obscured or denied. Women who kill in response to domestic violence have historically faced great difficulty in having courts recognise their victimisation and the full context of their offence. For several decades feminist activism and scholarship has challenged the legal system to adopt a more realistic appraisal of the life circumstances of women who kill in response to abuse. The dominant strategies used, expert testimony concerning battered woman syndrome (BWS) and plea bargaining to the lesser offence of manslaughter, may result in some merciful outcomes but pay insufficient attention to the social context of the defendant and the offence. In this article we build on research we have undertaken since 1991 examining legal responses to battered women who kill. We extend our previous analyses of the use of BWS at trial (Sheehy, Stubbs, & Tolmie, 1992; Stubbs & Tolmie, 1994, 1995, 1998, 1999) to also consider plea bargaining and sentencing, and we include recent cases to examine more than 15 years of litigation using BWS in Australia. We find that these strategies reinforce the individualised focus of the criminal law, which too often translates structural disadvantage into individual deficit or pathology and obscures gender and race inequalities. An individualised focus also reinforces simplistic, dichotomous constructions of victim/agent that are not in women's interests; the limitations of such constructions are most stark in some cases involving Indigenous women who are significantly overrepresented as both victims and offenders in spousal homicide cases. There is a profound need for renewed attention to the plight of Indigenous' women offenders who face desperate circumstances, both in some communities and in the criminal justice system.

A Note on Methodology

This research examines cases involving battered women charged with a homicide offence in Australia from 1991 to the present. This period was selected in order to track legal developments in battered women's homicide litigation since the first BWS case was argued in Australia in 1991. The research is based on all cases (n = 55) that we have been able to locate using court reports, media accounts and published research. Where possible, we have supplemented media accounts by consultations with legal representatives to verify or add details. The present article draws on 54 cases; one case has been excluded due to a lack of available detail. We cannot be sure that this includes all relevant cases, as law reporting services and media are selective in the cases they report. Nineteen cases (35.2%) involve Indigenous women, demonstrating their marked overrepresentation. (2) Our focus is on legal discourse concerning battered women charged with homicide and we draw on extracts from cases to illustrate our argument.

Family Violence, Homicide and Indigenous Women

Some Indigenous women within Australia prefer the term family violence rather than domestic violence (or other alternatives) to reflect the wider range of relationships and contexts within which violence occurs in Indigenous communities. However, it is acknowledged that women and children are the primary victims of family violence within Indigenous communities (Bolger, 1991; Memmott, Chambers, Go-Sam, & Thomson, 2006). Estimates vary by jurisdiction, but data consistently demonstrate extreme levels of family violence experienced by Indigenous women and children (Aboriginal & Torres Strait Islander Women's Taskforce on Violence, 2000; Fitzgerald & Weatherburn, 2001; Memmott et al., 2006; see also the detailed review in Stubbs & Tolmie, 1995). The Human Rights and Equal Opportunity Commission (HREOC) has argued that '[t]here is no issue currently causing more destruction to the fabric of Indigenous communities than family violence' (HREOC, 2003, p. 155).

Data concerning morbidity and mortality arising from assaults, although not provided specifically for family violence, demonstrate the extent and severity of violence experienced by Indigenous people. For instance, in 2003-2004 Indigenous women had hospitalisation rates for assault that were 31 times higher than non-Indigenous women; the rate for Indigenous males was seven times higher than for non-Indigenous males (Australian Bureau of Statistics [ABS], 2005, p. 142). Death rates due to assault were 6 to 16 times higher for Indigenous women and 10 to 18 times higher for Indigenous men than corresponding age and gender-specific rates for non-Indigenous people (ABS, 2005, Ch. 9, p. 160).

Homicides in Australia commonly occur within families, often against a background of domestic violence. However, the percentage of Indigenous homicides attributed to 'domestic altercations' (45%) in the National Homicide Monitoring Project is almost twice that for non-Indigenous homicides (23.7%; Mouzos, 2001, p. 5). In approximately 24% of intimate partner homicides in Australia in 2003-2004, one or typically both partners were Indigenous (Mouzos, 2005, p. 14), yet Indigenous people make up 2.4% of the Australian population (ABS, 2004). A higher proportion of Indigenous homicides involved a female offender (approximately 20%) than non-Indigenous homicides (approximately 10%), and in almost three quarters of homicides committed by Indigenous women the victim was a male intimate partner as compared with 44% for non-Indigenous women (Mouzos, 2001, p. 4). This marked overrepresentation of Indigenous women in intimate homicides emphasises the need for any analysis of the legal response to these cases to recognise the intersection between gender, race and class (Crenshaw, 1991; Stubbs & Tolmie, 1995).

Indigenous Women and Criminalisation

Over the decade to 2003, imprisonment rates for women in Australia increased by 110% (and by 45% for men) but by 343% for Indigenous women (HREOC, 2004, p. 15): the number of Indigenous women incarcerated over that period increased substantially for most offence categories, and increased by more than 100% for homicide offences (HREOC, 2003, pp. 142-143). At March 2004, Indigenous women were imprisoned at a rate 20.8 times that of non-Indigenous Australian women (HREOC, 2005, Table 1, p. 16). Evidence is clear that Indigenous women are substantially over-represented as both victims and offenders (Fitzgerald & Weatherburn, 2001) within the criminal justice system.

Criminalised women commonly have a background of having been abused (Butler & Milner, 2003) and the proportion reporting abuse is typically higher for Indigenous women. Research undertaken by the Aboriginal Justice Advisory Council with Aboriginal women in NSW prisons found that 70% of respondents had been sexually abused as children (Lawrie, 2002, p. 51) and approximately 80% had been victims of 'domestic/family violence' as adults (p. 54): '[t]he figures suggest that many Aboriginal women in custody were victims of violence offences long before they were "offenders" themselves' (Lawrie, 2002, p. 52). HREOC has characterised incarceration rates for Indigenous women as a 'national disgrace' and noted that those rates occur 'in the context of intolerably high levels of family violence, over-policing for selected offences, ill-health, unemployment and poverty ... [for those women life is] fraught with danger from violence' (2003, pp. 135-136).

Since Indigenous women are substantially overrepresented within the criminal justice system as offenders, they are much more likely than non-Indigenous battered women to have a prior record, which in turn may be interpreted to undermine their claim to victim status. Precise data on criminal records is not available, but one NSW study reported that the percentage of Indigenous women who had contact with the court system in 2001 (6.1%) was more than eight times that of non-Indigenous women (0.7%; Weatherburn, Lind, & Hua, 2003, p. 5). Offending may be independent of family violence, or may be linked to that violence in several ways. Evidence suggests that Aboriginal women in some Australian communities may have fewer reservations than other women about responding to physical force with force (HREOC, 2003, p. 152; HREOC, 2004, p. 164). Indigenous women who experience family violence may face difficulties gaining access to support from agencies in either Indigenous or non-Indigenous communities, leaving them without legal means of protecting themselves...