Legal landmarks that have shaped the way the courts deal with domestic violence

Legal landmarks that have shaped the way the courts deal with domestic violence

Words by Michael Roddan for The Citizen.

[Trigger Warning: Domestic violence, rape]

They are defining moments in how the law has recognised – and dealt with – domestic violence, and an evolving response to a scourge that accounts for the death of an Australian woman every week on average at the hand of her intimate partner or former partner.

The long process of shaping laws to better respond to the issue started with the Royal Commission into Human Relationships in the mid-1970s that was prompted by the hard work of feminist activists who brought domestic violence into the public spotlight.

The Commission led to the creation of the Family Law Act 1975, which provided the first way of gaining protection from violence through the Family Court system.

And that decades-long journey of law reformation continues with Victoria currently reviewing the criminal act of defensive homicide, introduced in 2005.

Even so, the law and the judiciary remain imperfect, particularly when addressing the needs of women who kill their violent partners.

1.     Runjanjic, Kontinnen and Battered Woman Syndrome

South Australian man Edward Hill kept an armoury of weapons that he used to beat his long-term de facto partner Olga Runjanjic and another woman, Erika Kontinnen, whom he forced into an abusive relationship.

Hill kept two loaded shotguns and a rifle in the house, which he rotuinely pointed at the heads of the two women. Axe handles, steel bars, water pipes and baseball bats were used time and again to beat the women, often breaking their bones. Runjanjic had her spleen removed after Hill stomped continuously on her stomach with steel capped boots. The same boots were used by Hill to break Kontinnen’s jaw.

Hill, who owned his own timber business, beat the women in public, forced them into prostitution, hit them with rocks thrown while they worked for his company. They were raped countless times and battered daily. Hill threatened the women with death, as well as threatening to kill Kontinnen’s son. Hill controlled their finances, when they ate and when they were allowed to sleep.

Runjanjic and Kontinnen were also in love with Hill. They always believed that in moments of calm, the violence couldn’t happen again.

On March 28, 1991, Hill forced Runjanjic to stand, facing a corner of the room, and listen as he had sex with Kontinnen whose son was crying in another room. Hill ordered Runjianjic to leave. He then beat Kontinnen and told her he would kill the three of them after he slept.

Though she doesn’t consciously remember her decision-making process, Kontinnen grabbed a shotgun and shot Hill in the back of the head.

The Battered Woman Syndrome was first published in 1984 by Dr Lenore Walker, a professor at Florida’s Nova South-Eastern University. From her study of 400 battered women, she identified three phases in a cycle of violence: ‘Tension Building’, then an ‘Acute Battering Incident’ followed by ‘Kindness and Contrite Loving Behaviour’.

The case of Runjanjic and Kontinnen was the first Australian trial to accept battered woman syndrome in evidence presented by an expert in court. Chief Justice Len King ruled that this type of abuse often left the battered woman in a psychological state that he described as learned helplessness.

Not able to predict or control acute outbreaks of violence, but clinging to the hope that ‘kindness and loving’ phases will become the norm, the woman becomes financially dependent on her abuser and rarely seeks help out of fear of further violence.

“There is often an all pervasive feeling that it is impossible to escape the dominance and violence of the mate,” said King in his ruling. He added: “It is not uncommon for such women to experience feelings for their mate, which they describe as love”.

Before allowing expert evidence of battered woman syndrome to be presented in court, women who committed a crime in response to a violent relationship were limited to a defence based on evidence that was factually relevant, and not evidence of the contextual factors existing at the time of the crime – which made building a self-defence claim difficult.

Dr Walker argued that by allowing a psychological explanation for a woman’s decision to stay in – or inability to leave — a violent relationship, juries would be in a better position to discard the notion that women who kill their violent partners are provocative or unstable.

After a trial lasting two weeks in the Adelaide Supreme Court, Erika Kontinnen was acquitted.

2.     Gender awareness programs for the judiciary

Following public condemnation of a string of decisions involving rape trials in 1993, the federal government decided to impose re-education on the judiciary.

Outrage ensued after the trial of a male youth who raped a 15-year-old girl in a barn some distance from a party they were both attending. While the youth pleaded guilty to the crime, Victorian County Court Judge John Bland said: “It does happen, in the common experience of those who have been in the law as long as I have anyway, that ‘No’ often subsequently means ‘Yes’.”In the trial of a man charged with the rape of his wife, South Australian Supreme Court Judge Derek Bollen instructed the jury that it was acceptable for men to use “rougher than usual handling” to persuade their wives to have sexual intercourse. Though it has been argued that Bollen’s words were taken out of context by the media, the fact that the man was acquitted failed to soothe public resentment.

Then, an apparently lenient sentence imposed on a rapist in the Supreme Court of Victoria ignited public criticism of Judge Norman O’Bryan. Twenty-six-year-old Paul Stanbrook beat a 17-year-old girl unconscious, raped her and then slit her throat. O’Bryan believed, as the girl was unconscious at the time of the rape, that Stanbrook deserved a significant reduction on the maximum sentence, arguing the girl was unconscious and therefore not traumatised when she was actually raped.

The then-Prime Minister, Paul Keating, responded by funding courses for magistrates and judges that would, he said, “help them identify prejudices that might impact on their judicial conduct towards women”.

The Law Reform Commission’s 1994 report “Equality before the Law” recommended that the judiciary dealing with family law and violence should understand the dynamics of violence against women in the home.

3.     James Ramage and abolishing the provocation defence

In 2003, Melbourne man James Ramage bashed and strangled his wife, Julie, after she told him she wanted to end their marriage. He employed a defence on grounds of provocation, which reduced his crime to manslaughter, for which he was sentenced to 11 years’ jail (and subsequently served eight years).

Provocation acts as a partial defence to murder where a defendant successfully argues that they were provoked to use lethal violence. Ramage was the last person to use provocation as a defence in Victoria. The defence was abolished after public outrage that followed the trial. Tasmania and Western Australia have also abolished provocation.

A lecturer in criminology at Deakin University, Kate Fitz-Gibbon, argues that all states should follow their lead. Writing for The Conversation, she said: “It would ensure that an avenue of excuse that has been routinely abused by men who kill a female intimate partner is closed. The justice system should no longer be seen to legitimise the use of lethal domestic violence.”

Fitz-Gibbon says demand for law reform reached a peak in NSW in 2012 following the lenient sentencing of Chamanjot Singh, who killed his wife, Manpreet Kaur, after she threatened to leave the marriage. Singh, who slit Kaur’s throat eight times with a box-cutter, was acquitted of murder but found guilty of manslaughter based on grounds of provocation and sentenced to a minimum jail term of six years.

A NSW Parliamentary Inquiry into the operation of the partial defence of provocation subsequently produced a report urging reform of the law. The amendment requires the provocation at question to have been a serious offence in itself. Fitz-Gibbon says it’s a clear attempt by government to restrict the applicability of the defence, but it raises the question of why the government won’t go one step further and abolish provocation altogether.

The Singh case clearly encapsulates the inadequacy of the provocation defence and highlights why it no longer reflects community values and expectations of justice, says Fitz-Gibbon. “It is an archaic defence that should be abolished.”

4.     The introduction of the offence of defensive homicide

The changes to the Victorian Crimes Act abolishing the provocation defence also introduced the crime of defensive homicide. Fitz-Gibbon says while provocation served to reduce murder to manslaughter, defensive homicide was designed to better respond to people who kill in the event of prolonged family violence. However, it hasn’t exactly gone as planned.

University of Melbourne Law School Professor Jenny Morgan published a 2002 paper that summarised Australian homicide data. She found that women are much less likely than men to be the perpetrators of homicide in homicides involving sexually intimate partners. She also found that whereas men are much more likely to kill women out of jealousy, possessiveness or control, women are much more likely to kill their male partners in response to violence from them.

In May 2010, 26-year-old Luke Middendorp was able to reduce the sentence for stabbing his partner in the back four times by successfully arguing an act of defensive homicide. It was the first time that a man had been convicted of defensive homicide against a woman – a law that was designed to protect women who reacted to their violent partners.

Middendorp stood at almost twice the size of his partner, 22-year-old Jade Bownds, who he claimed had tried to attack him. After being stabbed by her partner, Bownds stumbled out of her home in Brunswick, mortally wounded, with Middendorp heard to yell after her: “You filthy slut, you got what you deserved.”

Conviction for the lesser offence meant that Middendorp could be free in little more than six years from when he was jailed. Fitz-Gibbon says since the initial 2005 amendment, convictions for defensive homicide have overwhelmingly involved murders involving a male victim and a male perpetrator – well outside the context of family violence for which the law was intended.

“The offence has operated for over seven years in unintended ways that are out of line with the intentions of the original law reforms,” she says.

The defensive homicide law is flawed as it jails women who might otherwise be able to gain an acquittal through a complete self-defence argument, says Fitz-Gibbon.

Following this case, Victoria’s Justice Department ordered a review of defensive homicide and the ensuing report was released in September of this year. The government’s report proposed reforms to ensure women would be able to access an acquittal through complete self-defence where appropriate. Submissions on the issue close November 27.

5.     Indigenous Australians particularly at risk

Although battered women homicide cases are rare, Indigenous women are well over-represented in the statistics – both as victims and as offenders.

In August this year, Veronica Hudson was sentenced to six years in prison for stabbing to death her abusive partner, Edward Heron, in 2011.

The court was told Herron was appallingly violent. Hudson described how he was intensely jealous and suspicious, constantly accusing her of sleeping with other men. He would cut her arms, hand and throat, and pull her teeth out with pliers.

Earlier in 2006, Heron was jailed for causing grievous bodily harm to Hudson after he had punched, kicked and bitten her, and stomped on her face. After serving a five-year sentence in Alice Springs, Heron took up the relationship with Hudson again, but continued to threaten, intimidate, assault and rape her.

In December 2011, during a drunken argument outside the tent in which they lived, Hudson stabbed Heron once in the chest. She pleaded guilty to manslaughter.

A 2012 Australian and New Zealand Criminal Journal study found that Indigenous women in almost all cases where they commit homicide, do so by killing someone in their family or with whom they are in a domestic relationship. Indigenous men, on the other hand, kill in more varied circumstances.

Indigenous men are still over-represented in the statistics: out of an average sample of 100,000 Australians, 15 will be Indigenous men who have committed homicide – which makes them eight times more likely than non-Indigenous men to have committed homicide.

Indigenous women, on the other hand, are far less involved in homicide than their male counterparts – averaging just five cases per 100,000 Australians. But this makes them 25 times more likely than non-Indigenous women to have committed homicide – a gross inequality when compared to the rest of Australian women; 0.2 non-indigenous women per 100,000 Australians commit homicide, or 1 in 500,000.

The study found 67 finalised cases between 2000 and 2010 where a battered woman defendant was facing homicide charges after killing their partner. Indigenous women were greatly over-represented, accounting for 19 of 67 cases – 28 per cent compared to the 2.5 per cent of the Australian population that is Indigenous.

In the majority of cases that started out with murder charges, a plea of manslaughter was accepted. However, there were only 11 instances of total acquittal where self-defence had been successfully argued at trial. The authors of the study noted with concern “women’s abandonment of their self-defence claims in favour of accepting a manslaughter plea”.

But Indigenous women were once more over-represented among those women who pleased guilty to manslaughter rather than argue self-defence. This, according to the study, raised the question of whether Indigenous women were receiving equal access to quality legal representation as well as equal access to justice.

Justice Betty King, who sentenced Veronica Hudson, said: “There are so many appalling stories within the Indigenous community in Australia and it is hard to know where to start to do something about it.

“We cannot let this continue as a society. We must stop this appalling violence being inflicted one upon the other by members of the Indigenous community.”

The 2012 study recommended that defence lawyers reconsider going to trial on murder charges rather than manslaughter, giving the defendant a chance to argue self-defence. It concluded that the judiciary was too content to accept guilty pleas to manslaughter verdicts in cases where the battered woman appeared to have a strong self-defence argument.

In a 2011 paper on provocation as a sentencing factor, Felicity Stewart of the Victorian Sentencing Advisory Council and Arie Freiberg, Professor of Law at Monash University, argue that changing both professional and lay peoples’ behaviour and attitudes towards domestic violence is not easy. “Stereotypes die hard. Reform is not just about changing the words on a page.”