Editorial

This special issue of the Australian and New Zealand Journal of Criminology focuses on legal responses to lethal violence. This is not an area that is settled or where there is a prevailing moral, legal or criminological consensus. On the contrary, as the articles in this issue attest, there is much ongoing debate about the boundaries of homicide, relevant laws and their affects, and the divergent directions of law reform. As Oliver Quick and Celia Wells demonstrate in their analysis of recent homicide law reforms in England and Wales, especially concerning the new partial defence of loss of control, homicide laws remain contested, complex, and in some aspects incoherent.

As we prepared this issue of the journal, debates surrounding legal responses to homicide have reignited in several Australian jurisdictions. For instance, in New South Wales, a Parliamentary Inquiry into the partial defence of provocation was established in June 2012. In Victoria, an internal government review is underway into the operation of defensive homicide. In Queensland, following the election of a new government, there has been renewed activism seeking to prevent the use of provocation where a man has killed another man following a non-violent homosexual advance. Thus, the publication of this special issue is particularly timely.

This special issue is not a comprehensive coverage of the area, nor could it hope to be. However, it has taken as its main focus key concerns that have underpinned recent debates and developments in homicide law reform. Gendered violence is one such concern. Taking the social context of gendered violence seriously continues to challenge and unsettle conventional legal understandings of homicide; it has implications for the substantive law of homicide, defences and evidential rules, and sentencing laws and practices, and demands attention to how these different aspects of homicide laws interact.

Our article begins the issue by offering an account of divergent directions in reforms to homicide laws and of different approaches to law reform across jurisdictions, which have been shaped by particular local histories and high-profile cases. Jenny Morgan examines the value of placing the social context of homicide at the centre in order to drive progressive reforms, in contrast to reform that is framed by traditional legal categories. She considers the engagement by formal agencies of law reform with feminist ideas in discussions surrounding the laws of homicide, and the shifting attention given to violence against women over time.

Heather Douglas examines specific provisions recently introduced in Victoria – ‘defensive homicide’ – and Queensland – ‘killing for preservation in an abusive domestic relationship’ – which were motivated, in part, by a concern for battered women who had killed an abusive partner. Her analysis of the cases in which these new provisions have been raised suggests that the statutory provisions themselves may be less significant in shaping outcomes than evidence of the social context of domestic violence. With a similar focus on battered women who kill, Elizabeth Sheehy, Julia Tolmie and Julie Stubbs provide an international comparison of homicide cases in Australia, Canada and New Zealand which cautions against any simple assumption that case outcomes map neatly against formal legal provisions. They find that partial defences to homicide continue to play an important role for battered women, including in plea bargaining. They highlight the importance of evidentiary rules, and encourage future research to pay more regard to prosecutorial discretion and to aspects of legal culture which shape decision-making. Building upon this examination of the law’s response to intimate killings, the study by Myrna Dawson provides a quantitative evaluation of Canada’s statutory requirement that harsher penalties be applied to those who abuse a spouse or child. She, too, highlights the importance of plea bargaining, and finds that intimate partner homicides more commonly result in a guilty plea than other homicides.

Stephen Tomsen and Thomas Crofts examine another form of gendered violence as they consider the role of perpetrator masculinity in male on male killings with a dual focus – on the excuse of accident, available in some code jurisdictions, and on the successful use of the provocation defence in homosexual advance killings. They see parallels in these phenomena, and in legal and cultural resignation about male on male violence, which they also link to the partial condoning of male violence against women.

The articles bought together in this special issue provide empirical data and critical analysis and reflection on legal responses to lethal violence, which challenge some common assumptions and invite a more considered approach to understanding the factors that shape legal practice in homicide cases. They have the potential to inform current debates surrounding homicide law in Australian and beyond, and perhaps to prompt new ones. They should also provide a stimulus for further research in this area.