Battered Women, Startled Householders and Psychological Self-Defence: Anglo-Australian Perspectives

This article provides a timely and critical reappraisal of the interconnected, but discrete, doctrines of loss of self-control, under ss 54–56 of the Coroners and Justice Act 2009, and self-defence within s. 76 of the Criminal Justice and Immigration Act 2008. The loss of control conceptualisation renders it difficult for defendants to claim the partial defence where exculpatory self-defence has been rejected, and fear of serious violence is adduced. This doctrinal incoherence has been exacerbated by the fact that s. 43 of the Crime and Courts Act 2013 effectively legitimises the use of disproportionate force in self-defence, but only in ‘startled householder’ cases. A more appropriate avenue of reform is provided by developments in Australian jurisdictions. This comparative extirpation engages the introduction of a new partial defence of self-preservation/psychological self-defence predicated on the notion of excessive utilisation of force in self-defence as in New South Wales, supplemented with a ‘social framework’ provision, akin to that in Victoria. The new defence would avoid the problems associated with requiring the abused woman to establish a loss of self-control and/or affording an affirmative defence in ‘startled householder’ cases.