RLC and Sydney Women's Domestic Violence Court Advocacy Service (Sydney WDVCAS) made a submission to the Legislative Council Select Committee Inquiry into the partial defence of provocation.
The submission recommended that the partial defence of provocation be abolished and the law of self-defence be reformed to reflect community standards and to adequately address the social context of women who kill violent partners, taking into account circumstances of domestic violence. We supported the Australian and NSW Law Reform Commission recommendation that state and territory criminal legislation should ensure that defences to homicide accommodate the experiences of family violence victims who kill, recognising the dynamics and features of family violence.
Our view in summary
Criticism of the statutory defence had been widespread, including claims that the defence favours proprietary, violent men, privileges a loss of self-control and promotes a culture of blaming the victim.
RLC is of the view that the defence of provocation trivialises domestic violence because the rules of evidence do not allow for a jury to heat evidence of any history of violence against the victim, though in many provocation cases the relationship has been marked by violence on the part of the accused. There is also evidence to suggest that, in the context of family or domestic violence homicides, men and women kill for different reasons. This is reflected in the casework of Sydney WDVCAS.
We submitted that the existing law on self-defence is not sufficient for allowing the context of domestic violence experienced by the defendant to be considered by the jury. Our submission urged that consideration be given to an amendment to the law of self-defence in NSW to provide for persons who have reasonable grounds for believing that their conduct was necessary to defend themselves, even if they were responding to harm that was not immediate or their response involved the use of excessive force.
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