Why intimate partner violence is difficult to see as grounds for self-defence: Old common law legacies

In the past 30 years, considerable attention has been paid to the difficulties women have had in accessing the law of self-defence when they have responded with lethal force against intimate partner violence (IPV). This article examines why successful reliance on self-defence remains rare in these circumstances despite significant changes to the law: decision-makers in the criminal justice system continue to call on deeply held cultural assumptions about violence and relationship that directly undermine a defendant’s claim to have acted to defend herself. The first half of the article examines the old common laws of “marriage” and “self-defence” to reveal the cultural paradigms those laws embodied. The “fight” paradigm underpinning se defendendo and the doctrine of marital unity that constituted marriage as a status hierarchy resulted in there being no real foundation for a claim of self-defence by a wife. The second half of the article examines in close detail a recent, typical homicide trial, Liyanage v Western Australia (Liyanage), to demonstrate that, in spite of significant law reforms, there are similarities between the implicit conceptualisations the State relied on to construct its case, and those that underpinned the old common law. The State’s case in Liyanage was: (i) anchored to the “fight” paradigm of self-defence; (ii) presented and structured so that sexual violence against a wife was “invisibilised”; and (iii) failed to perceive the status-hierarchy in the marriage as
itself abusive. It is argued not only that the State’s case in Liyanage was in line with the old common law, but that because of these features, the State did not discharge its obligation to prove the defendant did not act in self-defence. Just one illustrative case is analysed in order to probe far deeper into how the law is operating than is possible to discern from the rules themselves.