Citation

Stubbs J, Tolmie J. Aust. N. Zeal. J. Criminol. 2008; 41(1): 138-161.

Copyright

(Copyright © 2008, Australian and New Zealand Society of Criminology, Publisher SAGE Publishing)

DOI

10.1375/acri.41.1.138

PMID

unavailable

Abstract

This article examines legal responses to women charged with a homicide offence arising from killing an abusive partner and reviews Australian cases over the period 1991–2007. We focus on cases involving Indigenous women, due to their very substantial overrepresentation as victims and offenders in intimate homicides in Australia. We find that the Australian case law to date has not developed principles adequate to reflect battered women's interests. Our analysis of cases involving Indigenous battered women indicates that the battering they had experienced and their disadvantaged circumstances were commonly read as indicators of personal deficits, and any evidence of structural disadvantage was muted. This research suggests that the limited impact of battered women's litigation in Australia is in part attributable to the psychological individualism of the criminal law identified by Norrie (2001, 2005), which is not confined to the trial stage but also shapes prosecutorial discretion and sentencing. We urge future research to shift the focus beyond battered woman syndrome and the trial process to examine plea bargaining and sentencing, and we suggest that advocates on behalf of battered women cannot rely on case law developments to deliver change but need to pursue multiple strategies.