New Article Challenging the Dominant Populist Voices that Sparked the Abolition of Defensive Homicide

Dr Danielle Tyson
Dr Danielle Tyson

Dr Danielle Tyson has co-authored an article with Monash Criminology PhD candidate Maddy Ulbrick and Dr Asher Flynn (Department of Criminology, Monash University). The article, The Abolition of Defensive Homicide: A Step Towards Populist Punitivism at the Expense of Mentally Impaired Offenders appears in the latest edition of the Melbourne University Law Review (2016, 40(1)).

The article examines the dominant arguments underpinning the abolition of defensive homicide in Victoria in November 2014 – namely that the offence 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. As Ulbrick, Flynn and Tyson note, 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, Ulbrick, Flynn and Tyson contend that the abolition of this offence did not adequately take into consideration the potential impacts on individuals whose mental conditions are not typically covered by the restrictive mental impairment defence. They 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.

An advanced copy of the article is available on the Melbourne University Law Review website http://law.unimelb.edu.au/mulr/issues/forthcoming-issue

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