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Alternative Law Journal |
Gail Barnes
Gail Barnes is a PhD candidate in the School of
Humanities, Media and Cultural Studies, Southern Cross University, NSW.
The
author acknowledges the assistance of Associate Professor Suzanne Hatty in the
preparation of this paper.
Each year a small number of battered
women use lethal violence to defend themselves and/or their children against the
onslaughts of their male partners. This lethal response of battered women to
their partner’s violence is clearly dramatic, but in most cases it is a
final act of self-defence after surviving many years of violent attacks.
However, notions of reasonableness inherent in traditional interpretations of
self-defence limit the availability of that defence. As a result, it appears to
be virtually impossible for a battered woman who kills her partner to claim
self-defence if her lethal action involved premeditation or did not occur
immediately in response to an attack.
This article makes a comparison
between the cases of Heather Osland, David Albion and Said Morgan. In all three
cases the defendants were involved in a pre-emptive lethal assault in the
context of alleged private violence. The comparison between these cases is being
made in order to argue that gender constructions are integral to the
understanding of lethal violence as an act of self-defence. To begin this
argument, the cases of Osland and Albion will be outlined in order to
problematise the response of the legal system when a battered woman attempts to
defend herself. Morgan’s case will then be discussed with particular
reference to constructions of rationality and masculinity.
Heather Osland and David Albion admitted killing their husband and
step-father, Frank Osland, on 30 July 1991. Heather
Osland[1] had been married to the
deceased for 13 years, during which time he had terrorised and abused her and
her four children from a previous marriage, including Albion. Frank Osland had
bashed, choked, kicked and raped her on many occasions; he had also beaten and
terrorised her children. According to Osland, ‘Frank believed he owned the
air I breathed and told me he could stop that whenever he
liked’.[2] Osland had left, or
tried to leave, her husband many times. The deceased had tracked her down and
made threats to kill her and the children, so she had always returned. On one
occasion Osland had tried to leave with the children, her husband had pointed a
rifle at her head, exclaiming that if they walked out the door he was going to
kill them all ‘this time’. Heather Osland had called the police many
times. She claimed they only talked to him and then left. Heather believed that
the police were afraid of Frank.
On the night the deceased was killed,
Osland[3] admitted drugging her
husband’s dinner and, once he was asleep, David Albion (now an adult)
smashed his stepfather’s head with a steel pipe. Osland and Albion then
buried the deceased in a grave they had dug the night before. Osland reported
her husband missing to police and later began divorce proceedings. When she was
arrested, Heather Osland told police she had killed her husband because of
‘the violence, the mental stuff’, and she added ‘I’m no
murderer’. It wasn’t about murder, she said, ‘just getting rid
of him ...’[4]
On 2
October 1996, Heather Osland and David Albion were tried for a single count of
murder in the Supreme Court of Victoria. Both Osland and Albion claimed they had
acted in self-defence. They both gave evidence that Frank Osland’s
violence had escalated in the days before the lethal assault and that he had
threatened to kill Albion if he did not leave the
house.[5] Albion told the court that
he had considered leaving but was afraid for his mother if he did. Against a
history of violence and abuse both Heather Osland and David Albion feared for
their own and each others’ lives and so they killed Frank Osland in a
pre-emptive defensive assault.
However, the jury found Osland guilty of
murder and she was sentenced to fourteen and a half years gaol with a non-parole
period of nine and a half years. The same jury was unable to reach a verdict on
David Albion.
Osland was described by Justice John Hedigan at her trial
as devious and manipulative.[6] The
prosecution argued that Frank Osland’s violence had stopped some time
before his death.[7] The court saw
Osland’s actions as unreasonable acts of cold-blooded murder perpetrated
by a bad, revengeful woman.
On 12 December 1996, Albion was retried and
found not guilty of murder on the grounds of self-defence. It would appear that
Albion’s claim to self-defence was more convincing without the addition of
his mother’s claim.
On 1 August 1997, an appeal in the Supreme
Court of Victoria against Osland’s conviction and sentence was dismissed.
Osland’s case was then taken to the High Court of Australia (Osland v
The Queen [1998] HCA 75)[8] based
primarily on the inconsistency of the verdicts reached in relation to Osland and
her son. Other issues in the High Court appeal included that the trial judge had
erred in his directions to the jury relating to self-defence and provocation.
Also, the appeal argued that evidence favourable to Osland had been excluded and
evidence adverse to her had been accepted.
Two of the five judges
involved in the High Court decision agreed that Osland’s conviction should
be overturned and a retrial held but the other three judges voted to dismiss the
appeal. On 10 December 1998, as a result of the majority decision Heather
Osland’s appeal to the High Court of Australia was dismissed and she
remains in gaol.
The High Court found that Osland acted as a principal
offender in the killing of her husband and so she was equally responsible for
his death. It also ruled that it was possible for one principal offender to be
acquitted and the other found guilty of murder. The other issues of the appeal
were also argued unsuccessfully. Heather Osland will be seeking the support of
the Victorian Attorney-General in the granting of a petition of
mercy.[9]
Osland was diagnosed
as suffering from Battered Woman Syndrome (BWS). Women who fit the criteria for
BWS have developed a ‘learned helplessness’ response to the
battering.[10] The use of BWS
suggests that a woman’s actions are not ‘reasonable’; further,
the court accepts that the woman involved is suffering from a psychological
abnormality which causes her to believe her action was
necessary.[11] BWS can be used to
reinstate women who have taken an active role in defending themselves back into
a more passive role.
Ironically, Heather Osland would most likely have
received a much lesser sentence if she had pleaded guilty to manslaughter using
the defence of provocation. The defence of provocation, with its inherent
emphasis on an emotional loss of control, allows the court to condemn the
woman’s actions as unreasonable, at the same time as excusing them. The
defence of provocation fits well with a diagnosis of BWS and the court is able
to take a more lenient view of the battered woman’s actions in sentencing.
However, Osland believed if she had not killed her husband she would have been
killed by him and so, on the basis of legal advice, she chose to plead not
guilty to murder on the grounds of
self-defence.[12]
In another case of private violence (R v Morgan, unreported, NSW Sup.
Ct, Hidden JA, 1 August 1997), the outcomes were very different to those of
Heather Osland. As in the Osland and Albion cases, this case involved a degree
of premeditation, and a pre-emptive defensive assault. However, this case, like
David Albion’s, involves a very different reading of the defendant’s
lethal defensive action to that afforded Heather Osland.
On 26 May 1995,
Said Morgan,[13] a detective senior
constable stationed at Fairfield NSW, shot dead his brother-in-law who was
suspected of sexually molesting three young girls over a number of years. Two of
the young girls were daughters of the deceased, Morgan’s nieces, and the
third girl was a close family friend. Police had arrested the deceased on Monday
for allegedly molesting the girls and he had been released on bail on Thursday.
Just days before his arrest, the deceased had allegedly threatened to kill the
girls if they ever told of the abuse.
On Friday, four days after he had
first learnt of the abuse, Morgan went to Mount Druitt police station to
ascertain if he could have the deceased’s bail conditions reviewed. He was
told nothing could be done until Monday. Believing that the deceased would carry
out his threat to kill the girls, Morgan went to the deceased’s house.
Morgan entered the house at about 10 p.m. and shot his brother-in-law six times
at point-blank range. Morgan then rang the police on his mobile phone and waited
outside the house with his hands behind his head until they
arrived.[14]
In August 1997,
at the end of a nine-day trial, the jury took less than 45 minutes to acquit
Said Morgan of murder on the grounds of a version of self-defence — that
is, he had acted in defence of the three young girls. The jury had three options
when bringing in its verdict: the first option was to convict Morgan of murder;
the second was to find him guilty of manslaughter on the grounds of diminished
responsibility; and the third option was to acquit him on the grounds that he
acted in self-defence.[15]
Therefore, if the jury had not wanted to find Morgan guilty of murder they also
had the choice to find him guilty of manslaughter on the grounds of diminished
responsibility.
During the trial, a forensic psychiatrist for the
defence suggested that Morgan had become obsessed with the sexual assaults on
the young girls. According to the consultant psychiatrist for the crown, Morgan
had some impairment of judgment and control leading up to the shooting because
of the burden of responsibility he felt for the care and protection of the
girls.[16] Morgan himself claimed he
was driven to kill and admitted under cross-examination that he would do the
same thing again if necessary ‘without a
doubt’.[17]
During the
trial Morgan told the court:
When I sit back and reflect, I felt I was there on both legal and moral grounds ... What I did was not right or wrong. What I did was for the ultimate protection of those three young girls. I was prepared to say or do anything in the world to ensure the safety of those three girls.[18]
It would appear that the jury believed Morgan was not suffering
from diminished responsibility at the time of the shooting and that his actions
were justified and therefore excusable. After the verdict was handed down,
Morgan declared that finally ‘the welfare of the girls is well and truly
secure’.[19]
Juries have the capacity to reflect community values, including the emotions
and prejudices of contemporary society. According to Mark Findlay, the Deputy
Director of the NSW Institute of Criminology, the jury wanted to acquit Morgan
‘because of the nature of both victim and accused — who was doing
the killing and who was being
killed’.[20] Findlay also said
‘juries might think if they hadn’t done what they had, then justice
wouldn’t have been done. Juries don’t have confidence that judges
will sentence
properly’.[21]
It is a
deep-seated assumption in patriarchal ideology that men are rational and women
are emotional. Morgan’s action was seen to be a rational and therefore a
reasonable response to the circumstances. Yet, when a battered woman kills her
husband while he is asleep or with a degree of premeditation, her lethal assault
is never totally justified. Rather, it is most often interpreted as an emotional
loss of self-control or as a vindictive act of murder. In some cases it may be
perceived as the result of a psychological abnormality. In the rare instances
where battered women have made a successful claim to have acted in self-defence,
they have had to prove that they suffered from BWS. As already noted, this is a
controversial defence which, some claim, pathologises the woman in
question.
Morgan’s position as a police officer, and an
Egyptian-born patriarch who heads a large extended family, worked in his favour.
His overt masculinity proved to be advantageous. He was not pathologised.
Apparently the jury saw Morgan’s lethal action as
‘reasonable’.
Morgan’s position in the community meant
that he fitted within the dominant construction of masculinity. What if Morgan
had been a homosexual, a drug addict or even an Aboriginal man? Would the jury
still have seen his action as reasonable? It is possible that if Morgan had been
other than the dominant construction of masculinity he would have been
marginalised, distanced or even feminised so that his actions were constructed
as irrational or unjustified.
To many in the community Morgan was a hero
with his agency clearly intact. In just the first few days of Morgan’s
trial, and in an unusual display of approval, several jurors were reportedly
nodding to him in acknowledgment as he entered the
courtroom.[22] One morning during
the trial a group of supporters sat outside the court with banners saying,
‘Justice has already been done. Thank you Said
Morgan.’[23] In addition,
a spokesperson for the organisation ‘Mothers of Child Abuse Victims’
reportedly described the Morgan verdict as ‘great’ and ‘the
ultimate
justice’.[24]
As
further evidence of the public support for him, Morgan was invited to speak
along with State MP’s at a vigil outside State Parliament for the victims
of child abusers.[25] After the
trial Morgan was even confident that he would be readmitted to the police
force.[26] However, even though
Morgan was acquitted of any wrongdoing by the court he has been refused
readmission to the force. Police Commissioner Ryan said ‘there were
sufficient other issues outside the actual finding in the court which brings
into question the suitability of [Mr Morgan as] a police
officer’.[27]
Paradoxically, the Morgan case comes at a time when community attitudes have
been moving toward the Right with calls for tougher penalties for crimes. Since
the early 1990s governments have reflected this change with new laws to reduce
judicial flexibility and encourage a ‘tough on crime’
attitude.[28] At the same time
people see the criminal justice system as not doing its job adequately so there
has been a rise in the acceptance of vigilante behaviours and attitudes,
especially against particular offenders.
An article in the Weekend
Australian referring to the Morgan case states ‘A detective turns
himself into Dirty Harry, blowing away an alleged paedophile who is out on
bail’.[29] This symbolism of
masculinity was a common occurrence with many newspaper stories at the time of
Morgan’s trial also referring to gun-toting Hollywood heroes when they
were reporting the case. A vast array of popular culture has depicted men,
particularly rogue cops, taking the law into their own hands and killing the
‘bad guys’. Indeed, these rogue cops rarely, if ever, face
prosecution or even disciplinary action.
Connell argues that the
production of heroes or ‘exemplary masculinities is integral to the
politics of hegemonic
masculinity’.[30] He claims
that culture is one of the disciplinary practices which sets the standards of
the gender order and discredits those who fall short. According to Connell, the
importance of exemplary masculinities has increased over the last 200 years with
the ‘decline of religious legitimations for patriarchy in the
west’.[31] It must be noted
that these icons of ‘exemplary masculinity’ are still mostly white,
middle to upper class and overtly heterosexual males. It is virtually
impossible to find any comparable images of women. Certainly Heather
Osland was not portrayed in popular culture as a heroine who had rid society of
yet another menace.
According to Andrew Goldsmith, Professor of Legal
Studies at Flinders University, ‘one of the strategies of the Morgan
defence was clearly to play up the supposed heinousness of the person who was
killed’.[32] The deceased was
an alleged child molester, a paedophile. Since the Wood Royal Commission
findings into paedophilia, Australia has been experiencing heightened moral
panic in relation to paedophilia. A survey conducted by Roy Morgan
Research[33] found that rural
Australians rated ‘lenient sentences for child molesters/sex
offenders’ as the greatest problem facing the nation, and ‘trusted
people sexually abusing others’ as the sixth worst. Amongst city people
these issues rated seven and six respectively.
Connell suggests that:
Hegemony relates to cultural dominance in the society as a whole. Within that overall framework there are specific gender relations of dominance and subordination between groups of men.[34]
Paedophilia is aligned with a subordinated form of masculinity
which is disparaged by those subscribing to dominant constructions of
masculinity. Connell posits that within dominant constructions of masculinity
the use of force and even violence is accepted as a means of asserting and
maintaining dominance. As a result, it appears that the jury thought it was
reasonable for Morgan, an exemplary male, to kill a man who was a suspected
paedophile.
It is also possible that in David Albion’s case the
jury perceived his lethal use of violence as a reasonable assertion of his
masculinity over a violent and oppressive step-father. According to Salom, the
jury which acquitted Albion bought him a chocolate-coated Father Christmas
wrapped in tinsel.[35] The gift
suggesting empathy for a young man who has suffered.
Naylor suggests that
male violence is seen to exist on a continuum. According to Naylor:
... male violence is less unexpected [than female violence]. It is explicable within the framework of ‘normality’. This is not to deny that male violence, especially killing, is censured, but the censure is ambivalent. The soldier defending his country, or the Indiana Jones-style adventurer has a positive image, but one could also think of the ambiguous public response to the Yorkshire ripper some years back, and to characters such as Rambo and Mad Max.[36]
Yet, if a woman kills a man, her partner, who has abused her
and/or her children, the courts rarely support or excuse her action.
Lloyd[37] argues that women who kill
are seen as ‘doubly deviant’. That is, they are seen to have
transgressed the criminal law and also the ‘natural’ law of
‘proper womanhood’ which suggests women are ‘passive carers,
not active aggressors’.
The battered woman who kills has stepped
outside the patriarchal order and thus her actions are perceived as a threat to
hegemonic social relations. Connell suggests that patriarchal definitions of
femininity result in a ‘cultural disarmament’ of
women.[38] This disarmament
effectively precludes women from legitimate forms of self-defence especially
against the authority of a dominant husband.
The trial and eventual
acquittal of Said Morgan and David Albion exists in stark contrast to that of
Heather Osland and many other battered women who have killed. Morgan was
portrayed within legal and public discourse as a hero, an exemplary male whose
actions were rational and whose acts could be legitimately conceptualised as
self-defence. Yet, Heather Osland’s involvement in the lethal assault on a
brutal husband and father from whom there was no escape was seen as totally
unreasonable and unjustified. At the same time, David Albion’s lethal
action was justified by the court. It seems that battered women are expected to
be killed rather than use lethal action to defend
themselves.
References
[1] Osland, H.,
‘Heather’s Story’, Release Heather!, p.12, The Women
Who Kill in Self-Defence and Release Heather Osland Campaign, Brimbank Community
Centre, 822 Ballarat Rd, Deer Park Vic. 3023, tel 03 9363
1811.
[2] Osland, H.,
above.
[3] Facts of the Osland case
were cited online at
http://www.austlii.edu.au/au/cases/cth/high_ct/1998/75.html, 3 January,
1999.
[4] Tippet, G., ‘A
marriage made in hell’, Age, 21 February 1998,
p.3.
[5]
http://www.austlii.edu.au/au/cases/cth/high_ct/1998/75.html,
p.3.
[6] Salom, T. ‘Father
killer cleared’, West Australian, 13 December 1996,
p.3.
[7]
http://www.austlii.edu.au/au/cases/cth/high_ct1998/75.html,
p.30.
[8] Facts of the High Court
appeal were cited online at
http://www.austlii.edu.au/au/cases/cth/high_ct/1998/75.html.
[9]
Information pamphlet from the Release Heather Osland Campaign, January
1999.
[10] Walker, L., The
Battered Woman, Harper & Row, New York, 1979,
p.55.
[11] The use of BWS has
generated considerable debate among feminists as to its usefulness or otherwise
for battered women who kill. Some commentators argue that BWS pathologises
battered women and others see it as a way to explain battered women’s
actions. See the debate between Julie Stubbs & Patricia Easteal in
Current Issues in Criminal Justice for the two sides of this
argument.
[12] Osland, above,
p.13.
[13] Facts of the Morgan
case were cited online
at
http://www.austlii.edu.au/au/cases/nsw/supreme_ct/unrep269.html,
6 March 1998.
[14] Curtin,
J., ‘How three people killed and got away with it’, Sydney
Morning Herald, 9 August 1997,
p.5.
[15] Yeo, S.,
‘Editorial — Rethinking self-defence’ (1997) 21 Criminal
Law Journal 253.
[16] Balogh,
S., ‘One man’s justice: jury clears killer officer’, Sydney
Morning Herald, 2-3 August, 1997,
p.26.
[17] Balogh, S.,
above.
[18] Murphy, D.,
‘Acted out of fear, not anger’, The Bulletin, 16 August 1997,
(116) p.20.
[19] Balogh,
above, p.3.
[20] Curtin, above,
p.5.
[21] Curtin,
above.
[22] Curtin,
above.
[23] Curtin, above,
p.38.
[24] Guilliatt, R. and
Drury, B., ‘The jury and the law’, Sydney Morning Herald, 5
August 1997, p.13.
[25]
Lagan, B. and Bearup, G., ‘Murder acquittal a worry for Ryan’,
Sydney Morning Herald, 20 August, 1997,
p.1.
[26] Guilliatt &
Drury, above, p.13.
[27]
Papadopoulos, N., ‘It’s my destiny to rejoin police, says
killer’, Sydney Morning Herald, 21 August 1997,
p.2.
[28] Ragg, M., ‘They
killed and walked’, The Bulletin, 19 August 1997, (116)
p.19.
[29] Woodley, B. and
Fife-Yeoman’s, J., ‘The abuse excuse’, Weekend
Australian, 9 August 1997,
p.28.
[30] Connell, R. W.,
Masculinities, Allen & Unwin, Sydney, 1995,
p.214.
[31] Connell, R.
W.
[32] Woodley and Fife-Yeoman,
above, p.28.
[33] Ragg, above,
p.19.
[34] Connell, above,
p.78.
[35] Salom, above,
p.3.
[36] Naylor, B.,
‘Media images of women who kill’, Legal Service Bulletin
15(1) 4-8.
[37] Loyd, A. (1995),
Doubly Deviant, Doubly Damned: Society’s Treatment of Violent
Women, London: Penguin,
p.36.
[38] Connell, above,
p.83.