Nyamweya is a Kenyan scholar who has done many years of research on a diversity of topics
Domestic violence cases in Australia have shot up and continue on a consistent basis. While a number of men have also been found to be victims of this vice, a majority are actually women who have suffered a lot in assault, sexual abuse, among other vices (Hegarty et al, 2020). On average between 2010 and 2014, it is noted that a female dies every ten days as a result of domestic violence (McGarry et al, (2016). The number has been increasing whereby; from 2015 to 2019, women accounted for over two thirds (65%) of all related homicides attributed to domestic violence in Australia. Interestingly, another report by the Australian Bureau of Statistics indicated that about 80 percent of women who suffered violence from the current partner did not contact law enforcers (Humphreys, 2020). The reason given for this failure to report was considered to be fear for further violence or revenge from the partner. Other than the rising case of women falling victim of homicides in the country, many women have also been hospitalized after being assaulted by their partners in the recent years (Australian Institute of Family Studies, 2015). It is within this reality that we intend to present the submission on the ongoing inquiry related to the battered women’s use of self defense in the context of domestic violence. This submission is done under this term of reference “is judicial understanding on the context of domestic violence adequate to accommodate women who kill in self defense? How does the judiciary frame domestic violence and does this affect legal outcomes?” The second term of reference under which this submission is made is on whether the laws of self-defense are adequate enough for the ongoing barriers to women accessing this defense. Lastly, the submission will also be centered on the effect of legal liberalism and blind justice on the legal assessment of womens claims of self defense in the context of intimate partner violence.
In essence, several studies have noted that many women have fallen victim of domestic violence and sometimes with serious repercussions. For instance, a study commissioned by the Australian government in 2004 estimated the number of domestic violence victims in Australia to number around 408,100. Out of these, approximately 87 percent comprised of women (Australian Institute of Family Studies, 2015). A later study undertaken by the Australian Bureau of Statistics (ABS) Personal Safety Australia in 2012 established that about one in six women in Australia or (16.9%) are subjected to some kind of sexual, physical or emotional harm from either a current or former partner right from the age of 15. Furthermore, since that age, one in four women experience some form of emotional or physical abuse under their significant others (Australian Bureau of Statistics, 2013). Donnellah, (2019) also reports a high number of women who get convicted in Australia due to crimes committed during self defense.
However, the interesting part of these scenario is that the current judicial structure has a tendency to ignore the context under which a homicide or assault occurs, especially those carried out by women under self defense within the realism of domestic violence. The high number of women facing criminal judges committed during self defense is in itself a clear indication that the judiciary has inadequate understanding regarding the context of domestic violence as it pertains to women involved in killing in self defense. Interestingly, the Australian judicial system has always framed domestic violence as any other crime and subjects any party involved in assault or murder to a standard penal measures with disregard to the circumstances surrounding the act.
The high number of abused women, those who have suffered violence and those who have been killed warrants a review of the current legal system in the country. In particular, there is indeed a greater need to have in place a legal framework that supports women who have committed a crime of murder, assault or injury when defending themselves against perpetrators, whether family related or not. Such a legal framework should make it
possible for the judges and magistrate to evaluate the scenario and circumstances leading to the criminal act prior to making decisions or issuing judgments against women who committed crimes under self-defense. Further, the legal protocols can be modified in such a way that the judicial and law personnel are allowed to execute legal liberalism rather than blind justice when dealing with cases involving women in domestic violence. If this is applied, the legal officers will be in a position to make appropriate legal assessments on the “reasonablessness” of the defendant’s claims of self-defense in criminal misdemeanors.
In light to what is happening within the Australian legal context as it regards to domestic violence against women, it is high time that laws are enacted to allow women use self-defense whenever necessary. This is important for them in avoiding the risks associated with domestic abuse and more crucially protecting themselves. This is because as observed by Sheehy et al, (2012) the deficiency of laws protecting self defense in Australia has presented a barrier to administration of justice especially to women subjected under domestic violence. It should be affirmed that violence against women is an outright violation of human rights. It also prevents the whole or partial exercise and enjoyment of women’s rights. In this case, the rights of these women are being violated as they should be allowed the right to defend themselves, thus the need for self-defense protection laws.
Sadly, there is a recurrent situation in our country of some women having found to have injured or killed their aggressors while defending themselves from violence acts (Easteal, 2018). However, although the defensive act could be as a response to domestic violence, the structural problems associated with access to justice for females in this country hinder administration of fair justice to women (Sheehy et al, 2012). In fact, a lot of women have ended up being tried for crimes related to grievous bodily harm and homicide when in fact; they were at risk and defending their lives or those of their children. Accordingly, this has prevented even many women from taking defensive measures even when they are in trouble just to avoid spending time in jail or being seriously punished for the eventualities. Since these women are afraid of defending themselves, the result is that these women end up facing the full force of this violence which at times, lead to them losing their own lives, those of their children or encountering a disfiguring of one or several of their body parts (Toole, 2012). This is a situation that needs to change in our country by instituting a legal system that protects women against the implications of their self-defense activities in domestic violence situations. The government and in this sense, the law makers need to review the extent in which the current institutional and legal frameworks address issues related to gender rights. Further, a consideration towards the use of legal liberalism model within the justice system as earlier suggested is paramount since it allows the judicial officers autonomy to make decisions as per the circumstances and not as per the protocols.
However, it should be noted many women and girls have no skills in self-defense and self-protection. As the government relooks into the existing legal and policy frameworks on self defense, they should not take for granted the fact that many of our women have no self-protection skills. In this regard, it is important that the authorities consider empowering these women and girls to acquire these skills for an effective safeguard of their rights. This can be done through organizing training sessions for women either for free or at a cheap price (Mattingly, 2016). Mendez Ruiz (2016) attests that it is important to encourage women to participate in Karate and self-defense training sessions on their volition as a way of protecting themselves against perpetrators. In light of this, the judiciary should also take the opportunity to educate and inform the defendants, complainants and court attendees on the need to train for self defense during court sessions. However, they can do this effectively from an informed point of view and that is where awareness programs come in.
As noted by Hooker et al (2017) most of the factors supporting or influencing VAW are society based. The complications and complexities regarding gender based violence are much reflected in the prevalent in the current institutional, policy and legal frameworks. A major indicator of the said intricacy and confusion is cited to be contradictory safeguards on the rights of the woman in general. In other words, there is no clear legal framework on the justice system for women who causes harm, injury or dead in the face of self-defense (Tyson Et al, 2015). In addition, the judiciary does not understand how and if to protect the women perpetrators involved in killing or causing serious harm when in self defense. As such, they apply a standard law to such defendants without taking into account the forces that led to the act (Schneider, 2015). As we already said earlier, this leads to many women becoming timid, elusive and even unresponsive when they are facing violence for fear of being subjected to a criminal system.
Therefore, in this submissive, we are in support of the proposal to create a legal framework aimed at protecting women in self defense. This also necessitates the incorporation of the legal liberalism model into the framework to enable the legal officers assess the circumstances of the crime under domestic violence. In addition, there is a create awareness programs to judicial enforcers on the need to protect women who happen to commit crimes such as murder or harm in the context of self defense.
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Australian Bureau of Statistics. (2013). Personal Safety, Australia, 2012. Available at:
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Donnellah, A (2019) How the justice system turned a domestic violence victim into an accused murderer. Available at: https://www.abc.net.au/news/2019-10-24/jonda-stephen-domestic-violence-abuse-victim-accused-of-murder/11590058 (accessed on 4th, June, 2020)
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