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Abstract: Women who resort to violence against their abuser often face difficulties successfully pleading defences to criminal law charges. This is because defences have traditionally been defined and operationalised based on typical male forms of reaction that do not accommodate the experiences of women or contexts of abuse. Growing understanding about the gendered structure of the defences and better knowledge about the nature and effects of domestic abuse have led to reforms to defences across Australia and England and Wales. Yet, successfully accessing defences remains elusive. Currently, the Law Commission of England and Wales is examining the use of defences in homicide cases, including whether further reforms are required to existing defences, whether a bespoke defence should be introduced in the context of domestic homicide and whether laws of evidence should be reformed. This article addresses these questions though a comparative evaluation of recent reforms and proposed reforms in Australia and England and Wales relevant to victims of domestic abuse who cause harm to their abuser. The article finds that reforms to the substance of defences have often not improved justice outcomes for women who defend themselves against their abuser. Recognition of this has led some Australian jurisdictions to also legislate for the admission of evidence (including expert evidence) on domestic abuse and jury directions on the nature and impact of domestic abuse where such abuse is in issue. This article is novel in arguing that England and Wales can learn from Australia and introduce evidentiary measures to support the defence claims of women who cause harm to their abuser. Such provisions can help to overcome misunderstandings and stereotypes about the nature and effects of domestic abuse and help judges, magistrates, juries (as well as prosecutors and police) to assess the elements of defences through the lens of domestic abuse.
Keywords: coercive control; defences; domestic abus
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