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Women Who Kill in Self Defence Campaign

On the 2nd of October 1996, at the Supreme Court In Bendigo, Victoria, a jury found Heather Osland guilty of murdering her violent husband Frank Osland.

Heather Osland, 51, experienced 13 years of physical, sexual and psychological abuse from her husband. Frank Osland thrived on the abuse he administered to his wife and her four children. The physical abuse ranged from constant pushing and poking, being dragged by the hair or ears, to full force punches to the face and body. Sexual abuse was ongoing, forced vaginal, oral and anal penetration which resulted in recurring infections. The psychological abuse included Frank's control over all activities and strict rules to adhere to. Rules which included the need to have Frank's permission to shower, to walk from one room to another, to watch television, to eat and at times even to enter the house. Psychological abuse also included inhibiting Heather speaking to her children and forcing her to observe the abuse of her children and their pets. Frank also sexually abused some of the children but this was not known to Heather until her trial.

Over the years Heather made many attempts to leave her violent husband. She sought assistance from police on many occasions, took refuge with friends and neighbours, there were numerous separations which involved Heather shifting out of the house and moving to new premises. After years of abuse with no possibility of escape, Heather and her eldest son, David, took measures to save themselves from their abuser. David had been living with his mother and Frank in order to minimise the abuse of his mother, he and the other children feared that their mother would be killed by Frank. When Frank ordered David to leave the house on threat of death, the mother and son killed Frank to protect themselves.

Heather was sentenced to 14 and a half years in prison. At the same trial the jury were unable to reach a verdict for David, aged 29, and he was subsequently retired. At the retrial David was acquitted of all charges. Despite the fact that David struck the lethal blow to Frank and Heather did not herself use violence in the incident, an appeal against Heather's conviction and sentence was subsequently unsuccessful. While I would argue that both David and Heather should have been found not guilty on the grounds of self-defence one has to wonder why two people, one female and one male, both adults, both subjected to physical, sexual and mental abuse, both in fear o their lives, charged with acting in concert to murder the same person, should receive such divergent outcomes!

The legal system reflects the general community attitude that it is acceptable for men to kill in self-defence but it is not conceivable for a woman to do so. Women, who are thought of as passive and nurturing are not expected to kill or use violence, especially not against their husbands. So, while it was acceptable for David to kill to protect himself and/or his mother it was not seen to be acceptable for Heather to kill to save herself.

Heather's trial was complicated by the fact that evidence was led to indicate that she and her son planned to kill Frank and that the death was concealed. Evidence of planning was used by the Crown to argue that the actions were not an immediate response to threat and could not have constituted a sudden loss of control. It was argued that concealing the death demonstrated that the accused was not acting in self-defence and was indicative of a deceptive and manipulative personality. I will discuss the laws relating to homicide later. I would argue that anyone with an understanding of domestic violence could see why Heather and her son believed it was necessary to kill their abuser, and why under the circumstances it was necessary to plan and conceal their actions.

Women's justifiable fear in the context of domestic violence and women's lack of conditioning to use violence to defend themselves are two important factors for consideration. To understand women's actions in such cases it is necessary to acknowledge the impact of being subjected to violence, abuse and threats against your life, when fear of death is overwhelming and their is no way out and no one seems to be able to assist or to comprehend what is experienced daily - not the police, not the doctor, not even outside family members. If killing is perceived to be a women's only option then it is justifiable self-defence and a far better option than being killed by him, as are between thirty and forty women and children each year in Victoria (Women's Coalition Against Family Violence, 1994). Whether or not the woman had to plan her actions, in order to survive, and then concealed the death to protect herself from a justice system that has failed her too many times before, seems to me to be irrelevant to the fact that she killed to protect herself. But judges keep reminding us that they do not want to encourage women to 'self-help'.

In Heather's case the Judge stated:

"Whilst Frank Osland was a cruel and violent man, largely incapable of love and warmth and lacking in the ability to make true friendships, his life, nevertheless, had value, and the taking of it was a fully premeditated act done by you to turn your life around and preserve your situation. The taking by you of a human life in this way must be marked by condign punishment" (2093).

The Laws of homicide

The crime of murder requires that the offender intentionally caused the death of a person. Where there is evidence that the offender was provoked into the action the crime is reduced to the lesser crime of manslaughter. An example of provocation often cited in legal texts is a situation whereby the man kills his wife when he catches her in the act of infidelity. A man in this situation will be seen to have struck out in a 'passionate, hot-blooded, uncontrollable' rage. Needless to say, this example involves a number of presumptions abut what is appropriate male an female behaviour. It is unlikely that a situation in which a woman killed her unfaithful husband or his lover would be seen in the same light.

To be acquitted of charges of murder the defence must generally prove that the defendant acted in self-defence. The laws of self-defence require that there is imminent (immediate) danger and that force is met with equal force. This has been a problem for women who kill as responding to an attack of fists with a weapon such as a knife or gun has been seen to be disproportionate force (Scutt, 1983). These laws do not accommodate gender differences. Men's social conditioning and physical ability to fight allow for violent and spontaneous responses which meet the requirement of the immediate provocation element (Scutt, 1983). Given men's greater strength and ability to use violence, it is not feasible for a woman under threat of male violence to wait until danger is immediate and to retaliate with her fists. For this reason women often use weapons or kill when the opponent is asleep. Under these conditions the homicide appears premeditated and does not meet the strict requirements of provocation.

The threat of danger, the degree of force used and the element of provocation must all be considered to be reasonable in court. The acts of men and women are subject to a different set of expectations and demands (Jones, 1980). While male violence in certain contexts is perceived to be 'natural' and therefore socially acceptable, violent behaviour displayed by women is seen to be 'unnatural' an deviant. To illustrate this. on the day that Heather's appeal dismissal was reported in the newspapers an article on the same page reported the acquittal of a former police detective who killed a man who allegedly sexually assaulted his two nieces. As Gillespie so aptly puts it - 'the sense of reasonableness in law has been defined by men for application to men and interpretation by men' (1989;3).

Lloyd (1995) claims that, although women commit far fewer violent crimes than men, they are judged more harshly when they do, because not only have they broken the law but they have 'transgressed against the code of what it is to be feminine'. When women can be shown to be mentally and emotionally unstable (ie. mad rather than bad), they are likely to be treated more leniently than men (Llody,1995;70). The Battered Woman Syndrome has been used for this purpose.

The Battered Woman Syndrome, not a legal defence in itself, has been used in an attempt to overcome or compensate for the problems women face in the legal system. The Syndrome has been useful in explaining a woman's mental state and actions at the time of the homicide. Representing women as victims may be a valuable tool as the jury is more likely to sympathise with a woman identified as suffering from a mental illness (in the sense of a psychological syndrome). Given cultural stereotypes of women as passive and non-aggressive, it is likely to be extremely dangerous to imply in court that a woman was in control and powerful. These characteristics may be interpreted as vengeful and unnatural behaviour for women and will therefore incur a harsher penalty.

While the basic principles of the Battered Woman Syndrome may reflect the difficulties of women in battering situations and help to overcome some of the myths associated with women's behaviour and the nature of violence against women, it may be misinterpreted by the legal system. The Battered Woman Syndrome can work against some women. In Heather's trial the focus became whether or not Heather fitted into the criteria of the Syndrome rather than on demonstrating that her actions were self-defence. It has also been widely argued that the Battered Woman Syndrome perpetuates the stereotype of women as helpless victim.

The Campaign

Heather's case and the injustice of her sentencing prompted a campaign which has been gaining momentum and support since it's inception in November 1996. The campaign was initiated by Heather's advocate, Chris Momot, from Brimbank Community Centre. In February 1997, the campaign held a public forum - Women Who Kill in Self Defence. The forum chaired by Joan Kirner and Maria Dimopoulos opened with stories written by women who killed their abusive partners describing their experiences. Papers were presented on the legal context of domestic homicide (Bronwyn Naylor), a discussion about the Battered Woman Syndrome (Patricia Easteal), Law Reform (Helen Brown) and Investigating cases of women who kill (Debbie Kirkwood).

The Campaign has become two-tiered. One component is called the 'women who kill in self-defence campaign'. This group address issues such as the legal definitions of self-defence and provocation, the inconsistencies in their application and the limitations of the legal options available for women in domestic violence. The campaign aims to achieve reform of the laws relating to murder and manslaughter. It also seeks to provide community education about the experiences of women in domestic violence and the inadequacies of the Criminal Justice System, firstly in failing to assist women who are being abused and secondly, punishing women for saving their own lives.

The second p[art of the campaign is the Heather Osland Release Group. This group focuses specifically on Heather's case and representation and to secure her release from prison. The group approached Dr Jocelynne Scutt to represent Heather in a High Court Appeal. Dr Scutt agreed to represent Heather and together with Hilary Bonney made a submission for leave to appeal to the High Court on Heather's behalf.

The leave to appeal has been granted and the High Court case is scheduled for the end of April in Canberra.

If you are interested in supporting and being involved in the campaign contact Chris Momot on 9363 1811 or PJA at P.O.Box 1567 Collingwood 3066.

Written by Debbie Kirkwood, Women Who Kill in Self Defence Campaign