Journals Articles and Book Chapters by Patricia Easteal
Monash Law Review, 2016
This article seeks to draw conclusions about the potential impact of the Crimes Amendment (Abolit... more This article seeks to draw conclusions about the potential impact of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic). We do so by considering whether defensive homicide served as a safety net in the 2014 case of Director of Public Prosecutions (Vic) v Williams. The article presents a detailed analysis of the trial transcript and sentencing remarks to support the contention that the defence did in fact achieve this purpose. The conclusion rests, principally, upon understanding the jury finding that Williams killed in the belief that her actions were necessary for her own protection, but apparently determined that she had no reasonable grounds for that belief (thereby failing the legal test of self-defence as it then stood). Having looked at how the 2014 legislation also amended relevant evidence laws, and reinforced jury directions to accommodate considerations of family violence, we then consider the implications of these reforms for battered women who kill. We suggest that, in the absence of the offence of defensive homicide, women like Williams may in the future be convicted of murder, even when they kill in response to family violence and with a genuine belief that their actions are necessary in self-defence.
Papers by Patricia Easteal
Social Science Research Network, 2021
Social Science Research Network, Feb 27, 2010
ABSTRACT This article looks at why expert testimony is necessary in Australian trials of women wh... more ABSTRACT This article looks at why expert testimony is necessary in Australian trials of women who have killed a violent partner. It also overviews some concerns about syndromizing women’s experiences and suggests how battered woman’s reality could be argued instead. Situational expertise can explain how the abused woman’s act could be self-defense since it often does not take place immediately in response to violence, why the battered woman did not leave, and her possible absence of remorse.
ACT Government Report, Dec 14, 2021
Social Science Research Network, 2019
This article considers recent trends in the judicial interpretation of workplace vicarious liabil... more This article considers recent trends in the judicial interpretation of workplace vicarious liability provisions with respect to sexual harassment matters under the Sex Discrimination Act 1984 (Cth) (SDA). In a study undertaken by the authors in 2008, we found that the Federal Court and Federal Magistrates Court appeared to be taking a 'broad-brush' approach in interpreting employers' duty to take 'all reasonable steps' to prevent sexual harassment and defining 'in connection with employment'. The authors update that analysis and evaluate a sample of cases from 2011 to 2018, concluding that it is possible the Courts are approaching these legislative elements of vicarious liability with an increasingly narrow brush.
This special issue of the Canberra Law Review Symposium, convened on 3 June 2011 by the ANZSOG Ju... more This special issue of the Canberra Law Review Symposium, convened on 3 June 2011 by the ANZSOG Justice (Access and Administration) Group at the University of Canberra as an opportunity to showcase the justice research projects of the University of among a wider community of legal academics and practitioners. The theme of the Symposium, 'Justice Connections', was designed to facilitate discussion of common themes and problems relating to justice in d traditional categories of law and institutional divides. There were four sessions, each examining a different sub-theme: Justice Behind the Scenes; Justice in the Workplace; Justice, the Individual and the Courtroom; and Justice in a Comparative Context.
We look at mothers who have lost parental responsibility and who have been ordered to spend no or... more We look at mothers who have lost parental responsibility and who have been ordered to spend no or at best minimal supervised time with their child(ren). Our case sample included 50 recent interim and final first instance judgments heard in the Federal Circuit Court or the Family Court, as well as 13 judgments from the Family Court of Australia Full Court. We discover that the nature and quality of the pre-existing attachment of mother and child are outweighed by a view that the child(ren) would be at an unacceptable risk of harm in the mother’s care attributable to some sort of maternal dysfunction or an inability to acknowledge (and/or treat) its impact on her parenting capacity. The most common maternal harm identified by judicial officers was emotional and included the mother’s inability to facilitate a meaningful relationship between the father and his child(ren); in some matters this derived from the mother’s concerns about physical or sexual harm perpetrated by the father. In addition, decision-making themes found in our analysis included siblings, children’s views and the important role of the independent children’s lawyer and family consultant. We conclude by highlighting areas of concern and make recommendations to prevent inconsistencies and undue influence in proceedings.
Equality is a fundamental concern of human existence. Expressed in the principle of equality befo... more Equality is a fundamental concern of human existence. Expressed in the principle of equality before the law it requires that those who come before the law are entitled to be treated as being of equal value and to be given ‘equal consideration’. In circumstances where those who come before the law are marked by their differences, giving of equal consideration requires that difference be understood and taken into account. The identification of difference does not of itself determine the question of whether different treatment is warranted in the interests of equality. However, this article argues that understanding difference is a precondition for the promotion of true equality and that, in pursuit of understanding difference, it is necessary for us to acknowledge the limitations of our capacity to understand the lived experience of ‘others’ and to actively work to engage with these experiences. In the context of the criminal justice system, we over abused women who kill as illustrative of this need, focusing upon the availability and operation of self-defence in England/Wales, Queensland and Victoria. In doing so, we consider the capacity of the law, legal process and legal actors to engage with the lived experiences of these women, highlighting the im portance of ‘informed imagining’.
Social Science Research Network, 2008
Feminist research and theory show how substance and process of law are substantially affected by ... more Feminist research and theory show how substance and process of law are substantially affected by its patriarchal context. Accordingly, a number of Australian studies have identified how gendered myths and other factors impact on the assessment of victim credibility in sexual assault hearings. In this article we look at sexual harassment cases in Australia lodged under the Commonwealth Sex Discrimination Act (SDA) between 2000 and 2006 and the Australian Capital Territory (ACT) Discrimination Act from 2001 to 2005 to see if similar variables to those in rape cases play a role in the perception of witness believability. We find that credibility is more likely to correlate with being Anglo, very young, a rational (masculine) demeanor/ presentation in giving evidence, corroborative witnesses and legal representation. In addition, respondents' counsel in federal harassment hearings or respondents themselves in correspondence to the ACT Commissioner, just as defence barristers in rape trials, attempt to make the victim appear as an incredible witness through highlighting evidentiary inconsistencies and/or delayed reporting. Also evidence about sexual history or behavior that evokes an image of provocation may be adduced.We identify a varied response to these myths and to measurement of credibility by the individual ‘gatekeepers’ - the Federal Magistrates, judges and the ACT Discrimination Commissioner.
Australian Journal of Social Issues, Aug 1, 1998
It has been speculated that the effects ofsexual assault on victims are exacerbated by non-disclo... more It has been speculated that the effects ofsexual assault on victims are exacerbated by non-disclosure. It is therefore important to explore the reasons why survivors do not disclose or make formal reports. This paper looks at some of the factors that have stopped many survivors ofsexual assault or exploitation by health professionals from reporting sexual assault. A sense of shame is the principal deterrent; this is coupled with other factors derived from the nature of the relationship~the inequality and trust inherent between the patient and practitioner and, in counselling contexts, possibly the added power inequity in transference. For those who do report, their experiences with complaints units, Medical Review Boards and the courts may prove to be less than satisfactory. The article looks in depth at an example of the latter. illustrating how interpretations of consent in sexual assault legislation can be particularly problematic with health practitioner perpetrators. The courts and boards may fail to understand the consent issue and delay in reponing from the point of view of survivors. Consequently, their voices will continue to be suppressed.
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Journals Articles and Book Chapters by Patricia Easteal
Papers by Patricia Easteal