General Defences in Criminal Law: Domestic and Comparative Perspectives

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In particular, they suggest adjudication which involves community processing and community courts, both of which would address the underlying problem in its broader social context, its consequences, and relationships, rather than merely the specific incident or individual case Worden, a. Battered women are particularly in danger if they want to separate; they are often assaulted when they attempt to leave abusive relationships Browne, experiencing what has been referred to as a "separation assault" Mahoney, Research also suggests that when battered women first approach the justice system they tend to underplay the extent of their injuries, feel shame and guilt about their victimization, and are very hesitant to mobilize the system for their protection.

The police most often are the agency of last resort. Recent changes in arrest policies have resulted in an increase in the number of women arrested for domestic violence Ferraro, a ; Hamberger, However, preliminary results suggest that the overwhelming majority of female offenders in domestic violence cases acted in self-defense, or retaliated against previous assault or abuse.

A substantial proportion of women also used aggression to express feelings such as frustration or anxiety Hamberger, Research also indicates that women who appeal to justice agents for help are often not taken seriously. Studies of woman battering underline the key role that "fear of reprisal" plays in battered women's reluctance to involve criminal justice system agents, particularly in cases of highly violent batterers Ewing, ; McLeod, ; Singer, Women lose interest in prosecution when their victimization is trivialized, concluding "the costs and risks of prosecution outweigh the potential consequences for assailants" Hart, , p.

For instance, victims engage the criminal justice system for practical reasons, such as protecting themselves from violence, attempting to get help for their batterer, and endeavoring to enforce collection of child support or recover property. Victims tend to withdraw from prosecution once they have reached their goals or accomplished their aims. Contrary to the criminal justice paradigm, victims rarely seek public condemnation or punishment of their batterers Lerman, ; Worden, a. Research that has addressed the adjudication of domestic violence cases in court has demonstrated that cases commonly include more serious cases of battering, with higher levels of injury and frequency.

They are more likely to reflect "patriarchal terrorism" rather than "common couple violence" Johnson, Such discourse underestimates the impact of the battering on women and their children and ignores the dynamics of battering relationships in addressing a specific incident Ferraro, b. Following the 19 th century legal changes that redefined wife abuse as a crime, there were few changes in state laws governing domestic violence until the s.

Over the past two decades, however, legislatures have enacted many innovative laws and judicial officers prosecutors and courts that have helped to expand the scope and responsibilities of criminal justice agencies in domestic violence. Recent legal innovations, which have addressed reforms within the prosecution and adjudication processes, include conditions under which protection orders can be obtained and recognition of special legal defenses for battered women who have killed their partners Fagan, Also, civil protection orders, at one time available only pending divorce, were extended through legislation to battered women who were not in divorce proceedings Hart, Through various pieces of legislation, attempts were made to improve prosecution strategies and victims, services, encouraging collaboration between victim services and criminal justice agencies Burnett, et.

The prosecution of domestic violence cases has been the target of reforms, which were aimed at producing more charging decisions, and courts generating more orders of protection. These reforms were based on the realization that many misdemeanor cases drop out of the criminal justice process at various points, as criminal justice officials have discretionary powers and use them for legal as well as organizational considerations. Some reforms were triggered by symbolic reasons; other had practical justifications, such as presumed deterrence, incapacitation or rehabilitation of batterers.

Self-Defence in Criminal Law

But regardless of the motivation behind them, there is little evidence that they have significantly altered patterns of prosecuting and adjudicating domestic violence cases. Other than injury, these elements or case characteristics are not usually present in domestic violence incidents, and their absence reduces the likelihood of prosecution. Yet, the debate surrounding the most effective ways to improve the prosecution of domestic violence cases has revolved around victims' behavior, particularly their lack of "cooperation.

There is also the belief that victims who have recanted their allegations or failed to "cooperate" may forfeit their entitlement to the benefits of the legal system Stanko, These views are based on the presumption that a cooperating victim is essential to the objective of prosecution, which in turn is based on the assumption that the aim of the prosecution is conviction. These two assumptions are not necessarily defensible in domestic violence cases. The aim of the prosecution, victim advocates argue, should be victim safety, which the batterer's legal entanglement may enhance Worden, a.

Prosecution can also be a way to send a message to the perpetrator that the battering is unacceptable, or it can serve as a measure to empower victims, whereby the criminal justice system serves as an ally at the victim's disposal Ford, , Lerman, As the next section suggests these descriptions do not characterize the majority of cases that currently are prosecuted by the criminal justice system.

Policy attempts to sidestep the perceived disinclination of victims to follow through with their domestic violence complaints or overcome early withdrawal from proceedings primarily included no-drop policies. These policies are supposed to allow prosecutors to go forward with the prosecution even when victims decide to withdraw the complaint or fail to cooperate with the prosecution.

These policies were met with both enthusiasm as well as dismay by observers. At the extreme, some prosecutors maintain that they would subpoena reluctant victims to testify to ensure conviction of their batterers Worden, a. While this may be a benefit in some cases to victims, it may produce disempowerment of victims in other cases. Criticism raised against the no-drop policies is similar to that raised against mandatory arrest to the extent that such policies strip victims of their agency, autonomy, and freedom to choose their course of action.

Prosecutors have undertaken other strategies to increase their ability to prosecute crimes with reluctant victims, or those who withdraw their complaints, as is the case in domestic violence incidents.

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Another strategy is evidence-based prosecution, the practice of building cases without relying on victim testimony. These approaches hold promise as they take pressure off victims. The "battered woman syndrome" has been employed as a legal defense in cases in which a battered woman assaulted or killed her abuser. Legal defenses for Battered Women The "battered woman syndrome" has been another reform introduced in justice proceedings as a way to correct past practices of ignoring the plight of the battered woman in defending herself in court, or the need to apply standards of law, or legal defenses such as self defense, that were not suitable for situations of battering.

Often these are incidents in which a woman who has been abused for a prolonged period of time, and consequently experienced what has been termed "murder by installment" Ewing, , has reacted by injuring or killing her abuser. These are often cases in which a battered woman had assaulted her abuser without any provocation, but nonetheless has been perceived as defending herself due to her special psychological state of mind.

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Such a woman is often considered as being in imminent danger to herself or her children and therefore can benefit from this defense, even though she killed without provocation, or assaulted her abuser while the abuser slept or was otherwise off guard Gillepsie, It will also address the role of physical evidence, and prosecution orders. Stern public messages to defendants were more helpful to victims than subtle clues; the latter were perceived by victims as not helpful, conveying a message that that they do not have the support of the court Goolkasian, Less complex ways to increase the prospects of initiating prosecution or "winning" a case are to increase the strength of the physical evidence for prosecution.

The Role of Physical Evidence in Domestic Violence: Medical Reports Recent research has noted the importance of precise medical reporting for strengthening cases of domestic violence. Clinicians are also advised to use medical terms and avoid legal phrases such as "alleged perpetrator" or "assailant" or "assault. Considering the importance of physical evidence in domestic violence cases, adherence to these suggestions may significantly strengthen the cases and help in their prosecution.

Research has most commonly addressed one aspect of court processing, namely the issuance and enforcement of protection orders.

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Victims seek protection orders for the same reasons they pursue prosecution. The decision is often not related to the gravity of the incident preceding the violence but rather to various practical and safety matters, which suggests that victims are rational and motivated individuals seeking to construct barriers against violent partners Worden, a.

Many victims believe that protection orders will help them in being safe Finn, , a fact that has led some to fear for victims cultivating a false sense of safety in jurisdictions where orders are not easy to enforce Klein, ; Zorza, Protective orders were also not associated with a higher chance of receiving child custody. It is common knowledge that issues of domestic violence are not easily compartmentalized, and often the division between criminal and civil remedies is illusory or artificial.

General Defences in Criminal Law: Domestic and Comparative Perspectives

For instance, it is often necessary to address within the same court various issues related to partner abuse, such as custody, visitation and protection orders together with issues related to victim safety. Therefore, a movement to replace criminal and civil courts with specialized domestic violence courts has emerged; some jurisdictions have experimented with such courts. There is little evidence, however, to evaluate the way in which these courts have performed and with what kind of results Worden, a.

The research evaluating the effectiveness of batterer intervention programs and other sanctions commonly imposed in battering cases has not produced any conclusive findings on the effectiveness of any specific sanction or its relative advantages as compared to other options. The importance of a coordinated community response to an effective way to address domestic violence, has been, however, confirmed. Integrating criminal justice and community networks in responding to woman battering may be more productive in addressing the problem than acting separately or without networking and community cooperation.

Various jurisdictions have experimented with such cooperative efforts, for example, police departments join together with shelters and hospitals to address abuse, concluding that integrative and cooperative efforts are efficient and effective ways to respond to battered women, and to pull together resources and expertise Worden, b.

Research has shown that by almost any definition of domestic violence, this crime is a common occurrence. Because physical violence within families is so prevalent, and as historically society has placed a high value on family privacy and male authority, particularly within the confines of the familial unit, the criminal justice system for a long time has resisted criminalizing acts of family violence. These views and attitudes have undergone revisions over the last two decades, and the field has witnessed increased understanding of the causes of domestic violence, the behavior patterns of abusers, and the reactions of their victims.

Yet, there are still many questions left unanswered about the ways to conceptualize domestic violence and establish acceptable intervention strategies. The criminal justice response to woman battering has been a major area of concern for both activists and academics. Over the last two decades, many jurisdictions in the U. Underlying these legal reforms is an assumption that implementing policies, which force the police to arrest, will help prosecutors pursue cases and prevent fearful victims from dropping the charge. The pendulum has swung from allowing battering victims a major role in criminal justice decision making toward mandating the state to initiate its own course of action Stereotypical views of battered women and abusive relationships held by law enforcement agents continue to underlie at times police and court practices.

Conceptions of woman abuse as "family violence" and the myth of woman battering as "mutual combat" have compromised attempts to treat battering cases as crimes and protect women from violent men. Victim-blaming attitudes occasionally held by police, prosecutors, judges and other court staff in woman battering cases may distort the reality of domestic violence dynamics, play down the danger posed to women in abusive relationships and inhibit battered women from utilizing the system.

Common court practices employed by defense attorneys to defend batterers, such as attacking the veracity of the complaint and the credibility of the complainant, have made it difficult to convict the few batterers whose cases reach the courts. Recent trends in policy reforms to overcome the difficulties in responding to woman battering include removing arrest and prosecution decisions from battered women, increasing the use of restraining orders, and implementing batterer treatment programs as sanctions. The pendulum has swung from allowing battering victims a major role in criminal justice decision making toward mandating the state to initiate its own course of action-- be it arrest or prosecution -- even without the victims' consent or cooperation.

Pulling together resources and coordinating efforts may improve our response to domestic violence. Including educational, religious, political, cultural, media or health professionals or institutions in a coordinated response can help in addressing this persistent social problem. Awareness of available research on the potential of each response to help or harm victims may constitute another step toward the elimination of domestic violence.

Edna Erez, LL. E-mail - eerez kent. Edna Erez, L. D, has a law degree from Hebrew University of Jerusalem and a Ph. She also conducted postdoctoral studies in criminal justice evaluation research at the University of Southern California. Her research interests include sociology of law, victims of crime, and women in crime and justice.

Her most recent research addresses violence against immigrant women and evaluation of intervention programs with woman batterers. Bard, M. Training police as specialists in family crisis intervention.

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The law relating to general defences is one of the most important areas in the General Defences in Criminal Law: Domestic and Comparative Perspectives, 1st . General Defences in Criminal Law: Domestic and Comparative Perspectives. Front Cover. Matthew Alan Reed, Michael Bohlander, Nicola Wake, Emma Smith.

New York: Garland Publications. Violence and Victims 13 3 , Battered women and the criminal justice system: The perspectives of service providers. European Journal of Criminal Policy and Research 6, The prosecution and adjudication of domestic violence cases: An evaluation study. Patriarchal terrorism or common couple violence: Attorneys' views of prosecuting and defending woman batterers. International Review of Victimology , 7 , Ewing, C. Battered women who kill. Fagan, J. Contributions of research to criminal justice policy on wife assault. Coleman, ed. Note de recherche : traite en partie de la philosophie kantienne;.

Wise and Gerhard O. Mueller, eds.

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Thomas, , x, p. Frey and Christopher W. Morris, eds. Bochover, ed. Chiesa, et al. Robinson, Stephen P. Garvey and Kimberly Kessler Ferzan, eds. Fletcher and Luis E.

Right of self-defense

Chiesa, ;. Shillinglaw, Dana D. DeHart, and Kathryn J. FOX, James J. Hebermann et al. FUNK, T. But the murder is only wrongful if it was not justified in self-defense. Logically, there is no difference between the elements of a crime's definition and justifications.

See supra note Note , at p. A crime's definition establishes the positive conditions that must be present for the action to have been wrongful, such as intentional killing in the case of homicide -- the elements of the crime establish the duty not to kill. Such a justification would remove the wrongfulness of the act.

Thomas Aquinas;. Glazebrook, ed. Research Note : very good article that could significantly help battered women if policy makers would read it and understand it ;. Vers une nouvelle version des Western-Spaghetti? Self-Defense: Retreat and the Innocent Aggressor" at pp. The soldier in combat is trapped within this tragic Catch If he overcomes his resistance to killing and kills an enemy soldier in close combat, he will be forever burdened with blood guilt, and if he elects not to kill, then the blood guilt of his fallen comrades and the shame of his profession, nation, and cause lie upon him.

He is damned if he does, and damned if he doesn't. Kates Jr. F47 MRT;. Nunes [ S. PDF accessed on 1 May ;. Wright and J. Mitchell Miller, eds. Research Note : bibliography at pp. J ;. Spanos, Cheryl A. Bobbitt , So. Thomas, , xxi, p. C ; Table of Contents - Whitley R. Kaufman, ;. KAYE, J. Expert is currently a Special Advisor for the same research group, as well as advising the University's Centre for Criminal Law and Criminal Justice on Islamic jurisprudence.

Is also an expert on Islamic law, having acted extensively as an Independent Consultant and academic in various cross border public law, criminal law and human rights litigation within both English and foreign courts. And has been widely employed in immigration cases since Research interests in Iranian Law and procedure, forensics and authentication of legal and official Iranian documents, ethnic and religious minorities, human rights and restrictions in Iran.

Expert is known for practical knowledge and experience of the Iranian Judicial system and procedure, as well as forensic document analysis.