Abolishing defensive homicide: A step towards populist punitivism at the expense of mentally impaired offenders

M. Ulbrick1*, A. Flynn2 , D. Tyson3

1 PhD Candidate, Department of Criminology, School of Social Sciences, Monash University
2 Senior Lecturer, Department of Criminology, School of Social Sciences, Monash University
3 Senior Lecturer, Department of Criminology, School of Social Sciences, Deakin University

*corresponding author: madeleine.ulbrick@monash.edu

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 a mental impairments not covered by the mental impairment (formerly the insanity) defence. Mental impairments are complex and varied in their nature and symptomatology. Offenders presenting with mental 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 33 cases of defensive homicide heard over its 10-year lifespan, this paper contends that the abolition of defensive homicide failed to 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 that the decision to abolish defensive homicide was driven by dominant, populist voices, without sufficient understanding of its potential to achieve the aims underpinning its enactment, including providing an alternative offence for women who kill in response to prolonged family violence.

Biography

Madeleine Ulbrick is a PhD Candidate in the Department of Criminology within the School of Social Sciences at Monash University. Her research on homicide offenders with mental impairment has been published in the Melbourne University Law Review.

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