The abolition of defensive homicide : a step towards populist punitivism at the expense of mentally impaired offenders

Ulbrick, Madeleine, Flynn, Asher and Tyson, Danielle 2016, The abolition of defensive homicide : a step towards populist punitivism at the expense of mentally impaired offenders, Melbourne university law review, vol. 40, no. 1, pp. 324-370.

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Title The abolition of defensive homicide : a step towards populist punitivism at the expense of mentally impaired offenders
Author(s) Ulbrick, Madeleine
Flynn, Asher
Tyson, DanielleORCID iD for Tyson, Danielle
Journal name Melbourne university law review
Volume number 40
Issue number 1
Start page 324
End page 370
Total pages 47
Publisher Melbourne University Law Review Association Inc.
Place of publication Carlton, Vic.
Publication date 2016
ISSN 0025-8938
Keyword(s) defensive homicide
homicide law reform
mentally impaired offenders
Summary The offence of defensive homicide was abolished in Victoria in November 2014, following a widely held perception that it was being abused by violent men. While primarily associated with battered women who killed in response to prolonged family violence — but who were unable to establish their offending as self-defence — a less publicised rationale underpinning the introduction of defensive homicide was to provide an alternative offence for offenders with cognitive impairments not covered by the mental impairment (formerly the insanity) defence. Cognitive impairments are complex and varied in their nature and symptomatology. Offenders presenting with cognitive impairments therefore require an appropriate range of legal responses to capture the nuances and appropriate moral culpability of their conduct. Drawing from an analysis of the cases of defensive homicide heard over its 10–year lifespan, this article contends that the abolition of defensive homicide did not adequately take into consideration the potential impacts on individuals whose mental conditions are not typically covered by the restrictive mental impairment defence. We further argue that the decision to abolish defensive homicide was driven by dominant, populist voices, without sufficient attention given to the offence’s potential to achieve the aims underpinning its enactment, including providing an alternative offence for women who kill in response to prolonged family violence.
Language eng
Field of Research 160203 Courts and Sentencing
1801 Law
Socio Economic Objective 940405 Law Reform
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2016, Melbourne University Law Review Association Inc.
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Collections: School of Humanities and Social Sciences
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