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Australian support for victims of human rights abuses



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M E D IA RELEASE MINISTER FOR FOREIGN AFFAIRS ALEXANDER DOWNER

AA53 26 June 1998

AUSTRALIAN SUPPORT FOR VICTIMS OF HUMAN RIGHTS ABUSES

On United Nations International Day in Support of Torture Victims, I am pleased to announce new measures as part of Australia’s ongoing support for the victims of human rights abuses.

The Australian Government will contribute $100,000 to the United Nations Voluntary Fund for Victims of Torture to support projects that provide medical, psychological and social counselling services to the victims of torture as well as to their families. The Voluntary Fund also provides financial support for legal actions

against the perpetrators of torture.

Since its inception in 1982 the Voluntary Fund has benefited about 59,000 victims of torture.

The Australian Government will also provide up to $200,000 to the Australian Red Cross to help promote awareness of the provisions of International Humanitarian Law (IHL), otherwise known as the “rules of war”.

Under the 1949 Geneva Conventions and their Additional Protocols of 1977, the Red Cross and Red Crescent Movement has a specific mandate for promoting compliance with international humanitarian law, and taking measures to ensure that combatants are aware of their obligations.

The dramatically changed nature of armed conflicts in recent years has seen an increasingly blurred distinction between military and civilian targets. An estimated 90 per cent of the casualties in contemporary conflicts are civilian.

The Australian Red Cross will use the funding to deploy IHL Dissemination delegates to support the emergency activities of the International Committee of the Red Cross in conflict zones around the globe. They will work alongside relief staff to maintain contact with parties to the conflict, including armed forces, civilian police, prison administrations and elements of civil society, in order to promote observance of international humanitarian law.

Our support for the Voluntary Fund and the international humanitarian law dissemination program is consistent with the Australian Government’s strong commitment to the protection and promotion of universally recognised human rights.

Media contacts: Innes Willox (Minister’s Office) (02) 6277 7500 / 0411 414 695 Matt Francis (AusAID) (02) 6206 4967 / 0417 683 126

Media releases and speeches are available from AusAID via the Internet, http://www.ausaid.gov.au

DISCUSSION PAPER, MODEL CRIMINAL CODE CHAPTER 5

Using self defence as a defence to fatal offences, instead of provocation

Women are far more likely to be killed by men with whom they have an intimate relationship than they are to kill them. In Australia, Canada and England, women are at least 3 times more likely to be victims rather than perpetrators of a domestic killing.1

Between 1989 and 1996 2 out of 10 homicides in Australia took place where the offender and the victim were in an intimate relationship.2 The majority of homicides in Australia are as a result of fights between young men, however 9 out of 10 female victims of homicide were killed by a male.3 The statistics show that as opposed to males, females are at highest risk when they are in an intimate relationship. 75% of homicides where the victim was in an intimate relationship, separated or divorced were the result of domestic altercations, including arguments about sexual jealousy and the termination of the relationship.

Provocation is a partial defence which reduces murder to manslaughter. A significant number of cases where provocation is raised concern the death of a woman at the hands of a jealous husband/lover. The Discussion Paper on Fatal Offences argues that in those circumstances the conduct should not partially excuse the accused - he has intentionally killed another human being.

Some of following cases serve to illustrate the high degree of criminality for which an accused can be partially excused. The increasing relevance of the personal attributes of the accused to the law of provocation has theoretically rendered the "defence" available to every person who intentionally kills out of anger. Provocation is potentially available in any situation in which family conflict or a break up of a relationship causes a man to kill his spouse or a child. That is a standard which is

arguably unacceptably low if we are to maintain the value of a human life. Consider the following examples: _

Example 1

A man was convicted of the manslaughter of his wife after the partial defence of provocation was raised. He had been charged with her murder. He strangled her after an argument about her association with another man. It was accepted that he had been provoked. He was sentenced for manslaughter to 18 months imprisonment.

The man married again. Within 5 years of the first killing, he was charged again with attempting to murder his second wife and murdering her lover. His second wife had

1 The most authoritative Australian study is A Wallace, Homicide: The Social Reality (1986) NSW Bureau of Crime Statistics and Research, Research Study No 5 at 84. Some results of studies in other countries are tabled in Wilson & Daly, "Who Kills Whom in Spouse Killings? On the Exceptional Sex Ratio of Spousal Homicides in the United States" (1992) 30 Criminology 189 at 191. For highly localised exceptions involving black communities in Chicago and Detroit, see Wilson & Daly, ibid and Block & Christakos, Intimate Partner Homicide in Chicago over 29 Years" (1995) 41 Crime & Delinquency 496. 2 Homicide in Australia 1989-1996, Australian Institute of Criminology Research nf Public Policy Series No.13, Marianne James and Carlos Carcach, p 35. 3 Ibid, p 17.

left him for someone else and he said he was also upset because he had seen her lover playing games with his infant child. Later and at night, he entered the victims’ dwelling carrying a knife and repeatedly stabbed his wife and her lover. The provocation defence was not accepted on the second occasion, however the case graphically demonstrates some of the safety implications of retaining the defence. It must also undermine the confidence of the community in such laws.

Example 2

An immigrant father with a very conservative cultural and religious background stabs his 16 year old daughter to death because she refuses to stop seeing her boy friend. The father’s expectation was that contact with men other than those of the family’s selection should be avoided and that loss of virginity would be a matter of shame and disgrace to the parents. The daughter had rebelled against these views, at least twice ran away from home, and associated with a number of young men. She became

involved with one young man and had been arrested for shoplifting. Eventually the daughter and young man advised the parents they would be going away to live with each other and the parents seemed to reluctantly accept their departure. The next day the parents had second thoughts and visited the place where the young couple were staying where they found them both in the boy’s bedroom. The father concluded they had been having sex and stabbed the girl to death on the spot. The father successfully raised the provocation defence on the basis of his genuine outrage and is sentenced for manslaughter rather than murder. The Model Criminal Code Officers Committee questions a law which partially condones a killing in those circumstances.

Example 3

A man hears gossip that his wife, from whom he had been separated for almost a year, had been having sex with someone else. He parked his vehicle 1 kilometre from her house, approached the house on foot, took his shoes off (they were found near the front of the house), entered using a key he had kept, says they argued and got into a scuffle, she “choked”, “just couldn’t breath”. He “felt pretty bad”, but took her _ possessions, keeping the money and tossing the rest out along the road as he left the scene. Ultimately provocation was not accepted, however the case went all the way to the Court of Appeal. How is it that we can have a rule which generates hours of legal argument about cases like that? How can it be in the interests of justice? What sort of message does it send to our community?

Example 4

Another long and unhappy marriage. The wife was threatening to leave, her Italian husband was trying to persuade her to stay. She rejected his overtures by saying she did not love him, that she had sex with other men in the neighbourhood, produced nude photographs of herself, called him a “black bastard” and threw a telephone at him. He claimed he lost control, went outside and found a piece of iron pipe. He returned, hit her a number of times and killed her. He was convicted of manslaughter as he successfully used the provocation defence. While the wife in this case may not appear to be a particularly likeable person, why should the prior conduct and exaggerated taunts of a very angry person be seen to be partial justification for the killing of that person?

SELF DEFENCE

The Model Criminal Code Officers Committee believes that the Model Criminal Code provision on self-defence provides appropriate and possibly better protection where, for example, a female spouse kills her husband. They argue that the partial defence of provocation is an inappropriate vehicle for providing such women protection and that where after years of abuse the woman lays in wait and kills out of fear for her safety -

the complete defence of self-defence is much more appropriate. Indeed there is concern that too many women may be pleading guilty to manslaughter (relying on provocation) as an alternative to murder, when they should be relying on self-defence

and achieving acquittal.

The Model Criminal Code provision on self-defence (s.10.4) provides a person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.

It provides that it is self-defence to murder or a serious injury offence if:

(a) he or she believes the conduct is necessary to defend himself, herself or another person or to prevent or terminate the unlawful imprisonment of himself, herself or another person, and

(b) the conduct is a reasonable response in the circumstances as he or she perceives them.

‘Battered woman syndrome’ is a term used to describe a woman who has been beaten repeatedly followed by phases of kind and loving behaviour by her attacker, and then more violence. It is suggested that the battered woman clings to the hope that the loving phase will become the norm. Their hope is reinforced by financial dependence, children and feelings of guilt. They rarely seek outside help out of fear or because they love their partner.

Studies show that it is unwise to generalise about a woman in these circumstances or the causes. They also show it is not accurate to characterise it as a psychological disorder (which is the problem with giving it a label).

One commentator has said:

Assumptions that the choice to continue the relationship is pathological, a consequence of mental disorder, mask the mundane reality of domestic violence.”4

The key issue with ‘battered woman syndrome’ is whether force, even deadly force, was used in the belief that it was necessary to avert threatened harm. There is no reason why a woman cannot avail herself of the rules in relation to self-defence as she would with any violent assailant. However there has been a tendency for some to view domestic violence differently:

Even in situations of acute domestic violence, the community cannot condone the extreme measure of the killing of the aggressor party.”5

4 Women who kill in self defence, Sydney Law Review, Ian Leader-Elliott, [1993] p 403 at 417.

However the rules on self-defence do excuse killing in situations of acute violence - it does not matter whether the other person is a spouse.

The emphasis on proving “loss of control” in provocation has blinded many to the reality that ‘battered woman syndrome’ is all about fear and a belief by the woman that she must do something to defend herself. The following examples show how self-defence, particularly as proposed in the Model Criminal Code, can be used in

these cases:

Example 1

A woman lived with a man who was habitually violent when drunk. One night he seized her by the throat. She gave evidence that she fatally stabbed him because she feared he was about to strangle her. Expert evidence about the bruising on her throat showed she displayed none of the classic symptoms of a serious attempt at strangulation. Under the Model Criminal Code provision on self-defence the court can take into account her belief about a danger to her life or being seriously injured

providing the response (in that case a single thrust of the knife) is a reasonable response in the circumstances as she sees them. In that case self-defence was accepted under even less sympathetic English rules on self-defence. Under those rules the response had to be commensurate to the danger created by the attack and she needed

to believe her life was in danger. In Australia danger of safety, injury, violation, indecency and incarceration are all matters that may be considered in self-defence.

Example 2

Two women, one of whom had a child, had lived long term with the same defacto husband. He had been frequently and brutally beating both of them and a child over a long period of time. Indeed he had forced both women into prostitution and treated them like slaves at home. He controlled them by threatening to beat the other womarr or the child. On the night he was shot by one of the women he had threatened to shoot both of them and the child. Forensic evidence showed that the woman shot the man while he was asleep. She said that she could only remember smelling gunpowder and seeing him bleeding. She was charged with murder. The defence led evidence concerning ‘battered woman’s syndrome’ on the basis that it was relevant to the perceptions of the accused in relation to her belief in provocation and self-defence arguments. The court accepted the self-defence argument and acquitted the woman.

Example 3

The woman had a defacto relationship of several years with the father of her two children. He had a long history of violence when affected by alcohol or drugs, or when he wanted money. He was violent towards the children as well. There were occasions where it was necessary to get medical treatment. The woman moved out and 3 weeks later when visiting to see the children, the father demanded to have them overnight. The mother and father quarrelled. The father threw the mother on the bed, headbutted her and began to strangle her. He then stopped, turned his back to her. The mother then grabbed a knife and struck him in the chest and he died. The mother 5

5 Marion Taylor 3 February 1994 no 165/93, Supreme Court of South Australia.

said she had done it because of rage and a fear about the prospect of future violence. The defence admitted evidence of ‘battered woman syndrome’ and ran a self-defence argument. The woman was acquitted, however it has been observed by a commentator that the accused could have been acquitted on the ground of self-defence without tendering evidence about the syndrome. This is quite evident when reference is made to the Model Criminal Code self-defence provision. On much the same basis it would appear the same court would accept she believed the conduct was necessary to defend herself, and probably the children, and given the history of violent attacks, the conduct was a reasonable response in the circumstances as she perceived them. It was an opportunity to escape further beating and possibly harm to the children.

Circulated by the Minister for Justice 26 June, 1998