Engaging with the survivor’s reality of domestic violence: A discourse analysis of judicial understanding in survivor-perpetrated homicides

Background

Domestic violence (DV) survivors who kill their abusive partners face significant challenges in claiming self-defence. These challenges centre on the extent to which legal actors are capable of understanding the reality of DV and its effects on survivor-perpetrated homicides. Since 2005, Victoria has introduced changes to the Crimes Act 1958 and the Jury Directions Act 2015 which aim to facilitate a greater understanding of DV. This project seeks to measure whether these provisions appear to have contributed to a more nuanced understanding of DV among Victorian judges. The results of this research indicate that the Victorian provisions have contributed to shaping judicial understanding of DV and its role in these killings, thus facilitating more equal justice for survivors.

Aim

This project aims to assess whether legislative changes, which intend to facilitate a greater understanding of DV through the lens of the survivor, do have any such effect upon the judiciary.

Methods

Critical discourse analysis was conducted of 26 judgments (16 in Victoria; 10 in New South Wales) in which an intimate partner homicide committed by a primary victim of DV against an abusive partner was sentenced. Relevant text was extracted by identifying three key categories of discourse relating to DV. These extracts were re-analysed and coded on the basis of whether each accorded with social entrapment discursive practices. We also further critically analysed the language used to discern the (mis)understanding of DV (and its relationship to the homicide) expressed. In addition, we noted if the judge referred to expert evidence and if so, the type of expert. Each Victorian extract was also coded for whether the family violence evidence provisions appeared to be explicitly drawn from, or implicitly considered by, the judicial officer.

Significance

This research starts to fill the gap concerning the question of whether legislative provisions can improve judicial engagement with the reality of DV. An improved lens is most often directly linked to the family violence evidence provisions, confirming that the Victorian legislative model with its informed imagining is facilitating more equal consideration in cases of survivor-perpetrated homicide. By encouraging engagement with the reality of DV on a systemic level, the provisions provide the legislative framework necessary to engender cultural change throughout the legal system. Further evaluative research is necessary but we recommend that this type of legislative provision be enacted in other jurisdictions, thus facilitating the testimony of witnesses with expertise in the social entrapment model of coercive control.

Project start date

June 2020

Expected completion date

July 2021