Abusive Domestic Relationship Defence

The law today is far too lenient upon men who abuse and kill their wives and claim ‘provocation’ to lessen the charge. Women are constantly beaten by their partners and some kept prisoners in their own home and eventually killed. In the case R.v. Thornton the defendant was a battered wife who killed her husband. Her husband after threatening her, the husband fell asleep, she went to the kitchen and returned with a knife stabbing him while he was asleep.

For centuries domestic violence has been perceived as a private matter private of which the government has not been concerned about nor was it considered the government’s business to intervene on behalf of a battered spouse. The unlawful nature of this failure for state or federal government intervention against this crime contributed to the systematic abuse of women in the family. The traditions, customs, and common law found in both British and American societies continued right up until the last decade of the 20th century and left the battered wives and very frequently, her children, at the mercy of the husband. It wasn’t until the 1990’s when the government began to do something to protect mothers, wives, and lovers from intimate

Out of the shadows and into the limelight, the once hidden crime of domestic violence has recently emerged within the Australian community as a widespread criminal issue. This abuse of power occurs in a relationship when one partner attempts to physically or psychologically dominate and control the other. Inflicting physical harm upon another human being is undoubtedly a breach of the criminal law, yet the Australian legal system takes little measures to protect the wider community from this type of violence. According to Family Lawyer Richard Ingleby, domestic violence has often been condoned by the legal system due to the fact that assaults occur in the ‘private’ realm of the home where legal measures are regarded as inappropriate, and interventionist. However, by overlooking domestic violence as a criminal offence, does the Australian legal system fail to adequately protect the family unit from this form of violence? Recent studies from the Australian Bureau of Statics have revealed that 23% of women who have ever been married or engaged in a de facto relationship have experienced violence by a partner at some time during the relationship. Due to the secrecy that once surrounded this kind of abuse, victims often feel unable to speak out and seek help, therefore even large surveys cannot provide accurate estimates of the extend of domestic violence within the Australia community (Domestic Violence and Incest Resource Centre, 1998). Despite the high incidence rate of

This theory believes that an individual will choose criminal behavior by “free will” after weighing out the rewards and benefits verses the consequences or punishment for their behavior (Gosselin, 2005). In essence, the abuser will choose domestic violence as a means to the end since they feel control and domination is necessary in order to coexist within personal relationships. On the other hand, if the offender believes the risks outweigh the ability achieve personal gain, control, or satisfaction, he or she may choose not to commit the abuse (Schacter, et al., 2009). I believe this theory explains the restraint an abuser displays when they carefully select the type of abuse administered to their victims and the length of time they choose to enact the abuse. Most abusers will not openly abuse their victims in front of others in order to deter detection. Detection is not an option for most abusers, since they are familiar with the consequences of their actions.

What used to be a private issue has significantly reformed to be punishable by law highlighting society’s changing values. The main victims of domestic violence are usually women and children who are subjected to extreme abuse by the spouse. The Family Law Act 1975(Cth) established the Family court which attempted to address issues of domestic violence. However, the imposition of this legislation has reflected societal concerns where the law does not effectively deal with domestic violence as cases are continually unreported. Also, police are not adequately investigating the issue. For example, in the case of Swan, Wayne v D.P.P (2008) an indigenous woman was reluctant in reporting abuse until she was caught wandering the streets, heavily affected by alcohol. Due to cultural barriers, indigenous woman are compelled endure intense abuse in the household. The enactment of Crimes Amendment (Apprehended Violence) Act 1999(NSW) made it mandatory for police to investigate breaches of apprehended domestic violence orders (ADVOs) and arrest perpetrators if necessary. Greater use of ADVOs and investigation has reduced the amount of verbal abuse, physical violence and harassments. However, the case of Jean Majdalawi (1996) forced legislations to take further actions as the victim was shot in the head by her husband outside Parramatta Family Court even though an ADVO had been filed against him. Consequently, the event

Domestic Homicide is the killing of one person by another within the household. Many cases of domestic homicide take place each year. A third of all murders are committed by women. There is also a forty-one percent chance that a woman was the murderer in a spouse murder trial (Dawson 1). Women should have their cases taken seriously and not with sympathy just because they are smaller and weaker than their counterpart. There are Laws and Protection Orders provided throughout the United States, so women should not have to deal with any type of violence or abuse. If they aren’t treated with violence, then there shouldn’t be any reason for women to try to kill their abusive husband. Women should be tried for murder of their

Section 76 of the Serious Crime Act 2015 to an extent has added to the existing criminal remedies by focussing not just on the physicality of domestic violence but also the psychological aspect in terms of controlling and coercive behaviour (coercive meaning acts used to harm or frighten and controlling meaning acts used to make another subordinate by isolating and depriving them ). However, it has not significantly changed the rules of evidence in protecting victims of domestic violence. In this light, it can be argued that there are problems with the implementation of section 76 in that it does not fully protect victims of domestic violence.

The effects of intimate partner violence are attenuating and extend far beyond physical scarring. The abuse of woman and children has been researched extensively by Rachel Pain (2014, p. 536) as acts of “terrorism within the home”. If we are to compare the experience of women and children living in violent homes and the act of ‘terrorism’ itself we get a corresponding experience (Pain, 2014, p. 546). The construction of fear, the loss of identity, the ongoing distress of constantly feeling unsafe, isolated from all support networks are the surreal and ongoing daily struggles for domestic violence victims. Living in such horrific conditions has immense physical and psychological effects on those directly exposed or indirectly exposed to such violence. Through this research the links between domestic violence and ill health has been well-established. In an attempt to combat this prevalence element two of It Stops Here (NSW): a “streamlined referral pathways to support victims’ safety and support their recovery” was introduced (NSW Government, 2014, p. 18). Through this second element, there has been a strong focus on being able to better identify risk and supporting victims. From the inquest inquiry into Luke’s death, Coroner Ian Grey stated that "I find that there is no validated risk-assessment tool that can accurately predict whether a parent is likely to commit filicide." (ABC News, 2015). In an attempt to close the gap on such issues in July 2015 It Stops Here (NSW)

This essay will critically analyse the significant changes that have occurred within domestic violence which is viewed as a vital subject within the criminal justice system. It will explore the way that domestic violence has progressively become a concerning issue in the criminal justice system from being relatively acceptable in recent history. In addition to this, the essay will explore legislation changes in relation to domestic violence and how the police have arguably been forced to change their attitudes towards a problem that was once thought of as a private regard. It will critically analyse the theories put forward as to why domestic violence occurs in today’s society. It will explore the weaknesses within the criminal justice system, especially the police in regards to domestic violence, the police previously viewed domestic violence as a matter of which they should not get involved. However as mentioned in the essay, after many reviews within the system, many improvements have been made to help protect the victim.

The Law Commission had proposed removing the loss of control criteria completely. This was because it was recognised that women in abusive relationships may kill from a combination of anger fear, frustration and a sense of desperation. The government decided not to follow this proposal. D must prove loss of self-control. The only concession is that loss of control need not be sudden. It is probable that some abused women will not be able to use the defence.

Finally, there is the warrant of the statement, which is the logical connection between a claim and a supporting fact. The warrant of the above statement “Domestic Violence”, is a family issue that affects individuals all around the world and cuts across every line of societal and income status. Some possible challenges that I might face in proving this statement would be researching facts, statistics, and other data that validate set claim. Some rebuttals that one might face includes: the lack of cooperation due to the sensitive nature of the crime (victims may be afraid to speak up because it may cause the situation to get worse; and witnesses may not want to speak on the issue because of the victims’ privacy). Although, I do not believe

They way that current law reads in the use of the self-defense claim is a person must be in complete fear of death or bodily injury and the only way to avoid such death or injury is to resort to the use of deadly force for self-defense. Many women have been sexually abused with the average being around the 60% mark (Ewing, 1990). There are three stages to the Walker’s cycle of violence and they are the tension-building stage, acute battering incident stage and the loving contrition stage (Ewing, 1990). The first stage is one mostly of verbal abuse accompanied by some small physical abuse with the woman trying to keep the batter less angry. The next stage is one of tension that escalates and severe abuse takes place. The third stage is one of remorse by the batterer and assures the woman that the abuse will not happen again. Unfortunately in most abusive relationships the abuse does happen again and with each new event the abuse is more hostile and severe than the prior events (Ewing, 1990).

The abysmal ignorance of some Australian journalists – and horrifyingly health care professionals, has seldom been more obvious than in the coverage of domestic violence cases. The Age - a seemingly reputable newspaper -recently published an article by Doctor Salle McLaren claiming that women are equally as accountable as their abusers in domestic violence cases. The author, sadistic Salle - the clinical psychologist manipulates the perspective of her readers by using her impressive qualifications, fallacious statistics and her experience as a practitioner to reverse engineer her argument to support an immoral conclusion. After calling out women for actively participating in their own abuse, she goes onto claim she has to ‘retrain’ victims of domestic violence to stop encouraging the perpetrators behaviour. In her

Battered woman syndrome is a mental disorder that emerges within victims of long-term domestic abuse (Thompson Reuters). Around 4,000 women a year die at the hands of their abusers — 75 percent of them because they are trying to leave. For women, killing is often seen as a last resort — a defensive move, whereas, for men, it’s an offensive move (Starre Vartan). An example

On the original hearing, Ahluwalia was convicted of murder as the law on provocation required the loss of self control to be immediate, not premeditated and this may have been the case as the defendant waited for her husband to sleep before murdering him. However, the law has since developed and provocation now recognises 'battered woman's syndrome' and the slow burn effect it may cause. If this is the case, then surely a defendant in such a situation cannot face the full wrath of 'fault' when much of what surrounded the killing was not out of their choice. Even though the actus reus and mens rea in this case, and also similar cases of R v Duffy 1949 and R v Thornton 1992, were present, the law's introduction of a Domestic Violence Bill is perhaps confirmation that the concept of fault can only be appropriately applied when the full circumstances are looked at. This signifies the importance of defences, as it is here that the law can decide whether or not a person is to blame for their actions and to what extent it was their fault that the actus reus and mens rea were