The Crimes Act is the principal Victorian criminal legislation setting out a range of criminal offences and penalties. In relation to gender justice, the Act prohibits sexual violence and rape, stalking, sexual assault, rape, abortion (as amended by the Abortion Law Reform Act 2008) and female genital mutilation. The Act also prohibits attempts and conspiracies to commit these offenses, and sets forth applicable procedures and defenses. The Act previously contained a defense of “defensive homicide,” which was intended to, among other things, assist women who killed an abusive partner in self-defense. However, this defense was abolished in November 2014 on the basis that it was not operating as intended. The penalties for violations of the Act vary, and the principles in the Sentencing Act 1991 apply to sentencing in all courts except the Children’s Court.
Women and Justice: Keywords
Legislation
An Act to consolidate the Law Relating to Crimes and Criminal Offenders (Victoria) (2008)
Domestic Case Law
AA v. Fiscalía General de la Nación, Caso No. 299/2010 Tribunal Apelaciones Penal 1º Tº (First Criminal Appeals Court) (2010)
The Trial Court sentenced the accused (AA) to two years in prison for aggravated domestic violence. The court considered the aggravating circumstances to be the accused’s recidivism and the use of his strength to overpower his female victim. AA had a history of domestic violence against his wife (BB). Even though he had repeatedly assaulted BB and stabbed her once, BB refused to file a complaint against him. A family court judge imposed a restraining order against AA pursuant to which he could not get closer than 300 meters to BB and her children. However, BB on several occasions allowed AA back in her home and near the children. On October 7, 2008, AA came over to BB’s house with the intention of moving back in, but when BB declined, AA locked her and her children in a room for two hours. He did not physically assault them, but did threaten to kill them. BB filed a complaint and AA was convicted of domestic violence. AA appealed arguing that BB had subsequently withdrawn her criminal complaint against him, which constituted consent to his conduct. The Appeals Court determined that the victim’s withdrawal of her complaint was a consequence of “battered women’s syndrome,” and had no bearing on a criminal action. The Appeals Court dismissed the appeal and affirmed the decision of the Trial Court.
El Tribunal de Primera Instancia condenó al acusado (AA) a dos años de prisión por violencia doméstica agravada. El Tribunal consideró que las circunstancias agravantes eran la reincidencia del acusado y el uso de su fuerza para dominar a su víctima femenina. AA tenía antecedentes previos de violencia doméstica contra su esposa (BB). Aunque había asaltado repetidamente a BB y la apuñaló una vez, BB se negó a presentar una queja contra él. Un juez de un tribunal de familia impuso una orden de restricción contra AA en virtud de la cual no podía acercarse más de 300 metros a BB y sus hijos. Sin embargo, BB en varias ocasiones permitió que AA regresara a su casa y estuviera cerca de los niños. El 7 de octubre del 2008, AA vino a la casa de BB con la intención de regresar, pero cuando BB declinó, AA la encerró a ella y a sus hijos en una habitación durante dos horas. No los agredió físicamente, pero amenazó con matarlos. BB presentó una queja y AA fue condenado por violencia doméstica. AA apeló argumentando que BB había retirado posteriormente su denuncia penal contra él, lo que constituía un consentimiento para su conducta. El Tribunal de Apelaciones determinó que la retirada de la denuncia de la víctima fue una consecuencia del "síndrome de las mujeres maltratadas" y no tenía relación con una acción penal. El Tribunal de Apelaciones desestimó el recurso y confirmó la decisión del Tribunal de Primera Instancia.
施美丽故意杀人案，上海市崇明县人民法院 (People's Procuratorate of Chongming County v. Shi) Chongming County District People's Court of Shanghai Municipality (2014)
On May 20, 2014, the defendant used a hammer to strike her husband’s head three times. She then asked her son to send her husband to hospital where he died. The Court found that throughout their marriage, the deceased often beat and abused the defendant. The day before the incident, the deceased beat the defendant for a long period of time. At approximately 5:30 AM the following day, the defendant, due to the history of abuse, decided to kill her husband. During the trial, multiple witnesses testified to the deceased’s long history of domestic violence. A letter signed by more than 100 people, including close relatives of the deceased, also confirmed that he had abused the defendant over a long period of time. The Court held that the defendant’s conduct qualified as murder. However, because her motive was her husband’s long history of domestic violence, the victim himself was also culpable. Because the defendant had little possibility of recidivism and because there was strong public sympathy for the defendant, the court sentenced her to four years imprisonment. She was due to be released on May 21, 2018. On August 29, 2017, Shanghai No. 1 Intermediate People’s Court ordered her release on parole.
家庭暴力
2014年5月20日，被告人使用榔头击打其丈夫张某某的头部三次。被告让儿子将张某某送至医院，张某某经医院抢救无效死亡。法院查明，在婚后，被害人经常打骂被告人。事发当天，被害人曾长时间殴打被告人。5月20日凌晨5时30分许，被告人因为长期遭受被害人打骂，遂起杀害张某某之意。庭审时，多位证人证明张某某的长期家庭暴力行为。100余人的请愿书也证明了此家庭暴力行为。法院认为，被告人的行为构成故意杀人罪。但是被害人也因为对被告人的长期家暴行为存在重大过错。因为被告人再犯可能性较小，并受到民众高度同情，法院判决被告人有期徒刑四年。被害人的羁押将于2018年5月21日截止。2017年8月29日，上海第一中级人民法院判决被告人假释。
McMaugh v. State Supreme Court of Rhode Island (1992)
A woman and her husband were convicted of murder, and the woman appealed her conviction, arguing that her husband’s severe abuse prevented her from fairly defending herself at trial. Evidence of the abuse was discovered one year after the completion of trial, when the woman and her husband were placed in separate prisons. In reviewing the trial court’s denial of post-conviction relief, the Supreme Court of Rhode Island assessed whether the trial court considered if the additional evidence was newly discovered, material, and outcome determinative, and then whether such evidence, if appropriately before the court, warranted post-conviction relief. Upon hearing the newly discovered evidence, the court found that the pattern of extreme physical and mental abuse by her husband prevented the woman from assisting her attorney in presenting a reasonable defense at trial—rather, the evidence supported that the woman was suffering from battered women’s syndrome, which caused her, contrary to her own interests, to support her husband’s story at trial. Moreover, the evidence was and could only have been discovered after the wife was in prison and more removed from the husband’s domination and influence. The court found that this evidence warranted post-conviction relief, vacating the case and remanding it to the lower court for a new trial.
Longsworth v. The Queen Court of Appeal of Belize (2012)
The appellant threw an accelerant on her husband, followed by a lit candle. She then immediately attempted to douse the flames in water. Her husband died and she was convicted of murder and sentenced to life imprisonment. On appeal, the appellant attempted to introduce new evidence that she had suffered from Battered Women Syndrome (“BWS”). This evidence was not available during the appellant’s trial because there were no qualified forensic psychiatrists available in Belize. The Court of Appeal granted the appeal on the ground that (1) it was capable of belief; (2) it was relevant to the issues before the jury; (3) it would have been admissible at trial; (4) the trial attorney had been asked why no medical evidence was presented at trial; (5) the new evidence may have caused the jury to decide differently; (6) the evidence supported a defense of diminished responsibility and (7) it cast doubt as to the reasonableness of the verdict and admission of the evidence was in the interest of justice. The court considered the findings of an experienced and distinguished professional in the field of forensic psychiatry who examined the appellant, interviewed witnesses, reviewed trial documents, and found that the appellant’s history and behavior was consistent with BWS. The forensic psychiatrist concluded that the appellant had been physically, sexually, financially, and psychologically abused by her partner for nine years. This abuse, together with the appellant’s response to the abuse, was found to be consistent with BWS. The Court reduced the appellant’s sentence to eight years. This case was the first time that a court in Belize admitted new evidence in relation to BWS and PTSD in connection with a defense of diminished responsibility.
Republic v. C.W. High Court of Kenya at Siaya (2016)
The defendant was accused of the killing of her husband. She entered into a plea agreement to reduce the charge of murder to manslaughter. The deceased returned home on May 7, 2016, intoxicated and accused the defendant of infidelity. A violent domestic fight ensued and the defendant used a kitchen knife to fatally stab the deceased. The defendant was also injured by the deceased during the altercation. The defendant asked the court for a non-custodial sentence based on a number of mitigating circumstances including the fact that the defendant is the primary caregiver of her three children with the deceased, aged five, three, and one. Relatives and friends of the deceased confirmed that he was verbally and physically abusive to the defendant and the killing occurred in “the heat of the moment.” Furthermore, the defendant had no prior record, demonstrated remorse, and the deceased’s family and the community had forgiven her and were willing to help her raise her children. The High Court agreed that these factors merited a non-custodial status, adding that the defendant is both the accused and the victim, and was acting in self-defense even though she used excessive force. The High Court handed down a three-year non-custodial sentence. This case marks an important example of Kenyan courts treating victims of domestic violence with leniency where excessive force is used while defending themselves from their abuser.
Lavallee v. Her Majesty the Queen Supreme Court of Canada (1990)
The appellant, a battered woman, killed her abusive partner after an argument in which he threatened her life. In her defense, the appellant offered the expert testimony of a psychiatrist who testified regarding battered woman syndrome. The appellant was ultimately acquitted. The Manitoba Court of Appeal overturned the acquittal, and the Supreme Court of Canada considered whether the expert testimony of the psychiatrist should have come before the court and whether the judge’s instructions on said testimony were appropriate. The Supreme Court held that the testimony was admissible “where the expert has relevant knowledge or experience beyond that of the lay person,” as in the case of battered woman syndrome, and where the testimony is relevant to understanding the “reasonableness” of the defendant’s perspective.
State v. Ferreira and Others Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2004)
The appellant, convicted of hiring two workers to kill her abusive husband, argued for a reduced sentence. The court held that a lesser sentence is permitted only when there are "truly convincing" circumstances or where a life sentence is disproportionate or unjust. Expert testimony regarding battering and its effects showed how her behavior fit a well-known pattern for abused women. The court found this testimony convincing and held that the appellant's use of third parties to kill her husband did not invalidate her claim to be a victim of battering. Additionally, the court held that appellant's failure to testify should have no effect on her credibility. The court reduced her sentence but declined to acquit the appellant because of the premeditated nature of the act.
Die appellant, wat skuldig bevind is aan die huur van twee werkers om haar geweldadige man dood te maak, het aangevoer vir 'n verlaagde vonnis. Die hof het beslis dat 'n verlaagde vonnis slegs toegelaat word as daar 'werklik oortuigende' omstandighede is, of as 'n lewenslange vonnis buite verhouding of onregverdig is. 'n Getuienis van kundiges rakende die geweld en die gevolge daarvan het getoon hoe haar gedrag pas by 'n bekende patroon vir mishandelde vroue. Die hof het bevind dat hierdie getuienis oortuigend was en het bevind dat die applikant se gebruik van derde partye om haar man te vermoor nie die feit ongeldig gemaak dat sy ‘n slagoffer van geweld is nie. Verder het die hof beslis dat haar versuim om te getuig geen effek op haar geloofwaardigheid moes hê nie. Die hof het haar vonnis verminder, maar het geweier om die applikant vry te laat weens die voorbedagte aard van die handeling.