If ever the label attached a crime is a misnomer, perhaps it is the offence of ‘honour killing’.
This category of murder is where a person intentionally kills another to protect and/or restore the dignity and repute held hitherto for someone perceived to have been dishonoured.
The recorded history of honour killings spans thousands of years, and continues to be prevalent in many parts of the world to the present day.
A look back in time
During his reign as the first Roman Emperor from 270BCE, Octavian enacted a law called lex julia de adulteriis coercendis which empowered fathers to kill their own daughters in circumstances where the latter brought dishonour to the family by, for example, engaging in fornication or adultery.
Such acts of filicide were not only lawful, they were actively encouraged and fathers who failed to exact the punishment were often admonished, shunned and perceived as weak for failing to protect their honour.
Anthropological historians suggest honour killings were part of tribal customs of many nomadic societies such as the Bedouins, Scottish, English, Welsh and Irish herdsmen, as well as the Australian Aboriginals.
As in Rome, those perceived to have been dishonoured by the conduct of a family member were encouraged to take it upon themselves to exact the punishment – which could have been perceived as favourable to leaving the source of dishonour behind to their own devices.
Other examples of historical honour killings
While the beheading of England’s Queen Catherine, the 5th wife of King Henry VIII, was ostensibly on proven allegations of adultery, the act can equally be seen as a form of honour killing – as indeed many acts of adultery can – particularly when the murder is committed by a family member.
Indeed, the Inca permitted and even encouraged husbands to starve their wives to death if they suspected unfaithfulness.
Helen of Troy saw the first mass case of honour killings on the back of the Trojan War, fought to defend Zeus, the God of the Sky, after his choice of Helen’s husband.
Zeus, also regarded as the Protector and Father of all Gods and Humans, was the mythological father of Helen.
The property of men
Honour killings are overwhelmingly committed against women and girls, and can be seen as emanating from the view females are the property of men.
And such murders have been committed for reasons other than adultery or suspicions thereof; insolence and disrespect have been enough to justify and even warrant the degradation, humiliation, torture and murder of the person perceived to have stepped out of line.
Indeed, one of the main reasons for modern-day honour killings in subcontinental and African nations – as well as horrific crimes resulting in disfigurement such as acid attacks – is the refusal of a female to submit to, or remain in, an arranged marriage, and to instead marry or leave a marriage for the love of another.
Not associated with a particular religion
Collaborative research by the International Alliance of Research Unit’ (IARU) – which involved 11 major universities in 9 countries – as well as the Association of Pacific Rim Universities (APRU) – which comprises 60 leading universities in 19 countries – concluded it was a myth to associate the practise of honour killings with any particular religion.
The studies have, to the contrary, found that such practises are prevalent in nations across the globe; although their characterisation can differ, as can the way they are perceived by outsiders.
So while the popular media in Western nations will often label killings for the protection of honour in subcontinental and African nations (who variously practise Hinduism, Islam and Christianity) as honour killings, those same media outlets will similarly motivated acts committed by those from Anglo and Celtic backgrounds as domestic violence offences.
Indeed, the studies found that the prevalence of such killings on a per capita basis compares to that in nations where the West perceives these as endemic and even cultural.
Similar conclusions have been reached by Amnesty International, Human Rights Watch, the United Nations and the European Court of Human Rights.
The Australian judiciary
But it’s not just the general public in Western nations that point the finger and erroneously associate honour killings with foreign cultures.
The former Chief Justice of the Supreme Court of New South Wales, James Spigelman, made the following misguided and misinformed comment:
“There are important racial, ethnic and religious minorities in Australia who come from nations with sexist traditions which, in some respects, are even more pervasive than those of the West.”
Perhaps Mr Spiegelman should do some travelling – or at least get to know the people and cultures of whom he speaks – before pointing the finger in such an unsupported, generalized, ignorant, ethnocentric and indeed inflammatory and divisive way.
His Honour would be well-advised to read reports published by numerous respected research bodies which debunk that view, and to familiarise himself with the epidemic of domestic killings in his own backyard as exemplified by the ‘Counting the Dead’ project, before assuming knowledge of a matter in respect of which he demonstrates that he has no basic knowledge, experience or understanding.
How prevalent are honour killings
There are a number of reasons it is difficult to put a figure on the number of honour killings committed across the globe each year.
These reasons include differences in classification, under-reporting and inadequate record keeping.
That said, the United Nations Population Fund (UNFPA) estimates the number is close to 20,000; although many believe the figure is actually much higher.
The World Health Organisation (WHO) – supported by the United Nations International Children’s Emergency Fund (UNICEF), United Nations Educational, Scientific and Cultural Organisation (UNESCO) and the United Nations Office on Drugs and Crime (UNODC) has cautiously put the figure at 50,000.
Reforms designed to reduce the incidence of honour killings / domestic murders
In recent years, jurisdictions across Australia have introduced a range of measures designed to address the epidemic of spousal killings.
These measures include increased funding to domestic violence support services, payments to make it easier to leave abusive relationships, employer-paid domestic violence leave and, in New South Wales, changes to the law which criminalise coercive control, increase the penalties for domestic abuse and make it more difficult to defend murder charges on grounds of provocation.
Earlier this year, the Crimes Legislation Amendment (Coercive Control) Bill 2022 (NSW) inserted a new section 54D into the Crimes Act 1900 (NSW) which makes it an offence punishable by a maximum penalty of 7 years’ imprisonment where the prosecution proves the following elements beyond a reasonable doubt:
- A person is was at least 18 years of age (‘the defendant’),
- The defendant engaged in a course of conduct against another person (‘the complainant’)
- The defendant’s course of conduct consisted of abusive behaviour against the complainant,
- The defendant and complainant were or are intimate partners,
- The defendant intended by the course of conduct to coerce or control the complainant, and
- A reasonable person would consider that the course of conduct would be likely, in all of the circumstances, to have caused any or all of the following, whether or not the fear or impact was in fact caused:
- Fear that violence would be used against the complainant or another person, or
- A serious adverse impact on the capacity of the complainant to engage in some or all of his or her ordinary day-to-day activities.
Meaning of abusive behaviour
Section 54F of the Act defines ‘abusive behaviour’ as that which consists of or involves:
- Violence or threats against, or intimidation of, the complainant, or
- Coercion or control of the complainant.
It explains that abusive behaviour may include that which:
- Causes harm to a child if a person fails to comply with demands made of them,
- Causes harm to the complainant, or another adult, if the complainant fails to comply with demands made of the person,
- Is economically or financially abusive to the complainant,
- Shames, degrades or humiliates the complainant,
- Directly or indirectly harasses the complainant, or monitors or tracks his or her activities, communications or movements, whether by physically following the complainant, using technology or in another way,
- Damages or destroys the complainant’s property,
- Causes injury or death to an animal, or otherwise makes use of an animal to threaten the complainant, or
- Deprives the complainant of his or her liberty, restricts his or her liberty or otherwise unreasonably controls or regulates his or her day-to-day activities
- Prevents the complainant from doing any of the following or otherwise isolating him or her making or keeping connections with his or her family, friends or culture, participating in his or her cultural or spiritual ceremonies or practices, or expressing his or her cultural identity,
Examples of abusive behaviour
In relation to economic or financial abuse, the definition provides the following examples:
- Withholding financial support necessary for meeting the reasonable living expenses of the complainant, or another person living with or dependent on the complainant, in circumstances where the complainant is dependent on the financial support to meet his or her living expenses.
- Preventing, or unreasonably restricting or regulating, the complainant seeking or keeping employment or having access to or control of his or her income or financial assets, including financial assets held jointly with another person.
In relation to deprivation of liberty, the definition provides these examples:
- Making unreasonable demands about how the complainant exercises his or her personal, social or sexual autonomy and making threats of negative consequences for failing to comply with the demands
- Denying the complainant access to basic necessities including food, clothing or sleep.
- Withholding necessary medical or other care, support, aids, equipment or essential support services from the complainant or compelling him or her to take medication or undertake medical procedures.
Meaning of course of conduct
Section 54G defines the term ‘course of conduct’ as behaviour engaged in repeatedly and/or continuously.
It explains that such conduct does not have to be a series of unbroken incidents, nor do the events need to have occurred in immediate succession.
The definition encompasses conduct within New South Wales as well as that which occurs within the state and another Australian jurisdiction.
Meaning of intimate partner
The Act defines an ‘intimate partner’ as someone who has been or is:
- Married to the complainant,
- A de facto partner of the complainant, or
- In an intimate personal relationship with the complainant, whether or not this was or is sexual in nature.
Reforms to the defence of provocation
And years ago in 2014, the Crimes Amendment (Provocation) Act (NSW) overhauled the partial defence of provocation contained in section 23 of the Crimes Act 1900 (NSW) which, if successfully argued, reduces an offence of murder to manslaughter.
Among many other things, the new section prevents a defendant from having a murder charge reduced to manslaughter on grounds of provocation where his or her response is to sexual indiscretions by others; such as unfaithfulness by a partner.
The section provides that a person who would otherwise be guilty of murder, must instead be found guilty of manslaughter, if the act or omission that constituted the murder was in response to extreme provocation by the deceased.
Conduct occurred in response to extreme provocation if, and only if, the deceased’s conduct:
- Was towards or affected the defendant,
- Amounted to a serious indictable offence,
- Caused the defendant to lose self-control, and,
- Could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.
A ‘serious indictable offence’ is one that carries a maximum penalty of at least 5 years in prison which includes larceny, stalking or intimidation and assault occasioning actual bodily harm.
For present purposes, it is noted that infidelity does not amount to a serious indictable offence in New South Wales, or any offence for that matter.
‘Grievous bodily harm’ has been defined by the courts as ‘really serious harm’ and includes any permanent or serious disfiguring, any grievous bodily disease and the destruction of a foetus.
The deceased’s conduct does not amount to extreme provocation if:
- It was only a non-violent sexual advance to the defendant, or,
- The defendant incited the conduct as an excuse to use violence towards the deceased.
Conduct can amount to extreme provocation even if it did not occur immediately before the deceased’s killing.
Evidence of self-induced toxication cannot be considered when determining whether an act occurred in circumstances of extreme provocation.
In the event the defendant is able to raise evidence of extreme prosecution, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the conduct was not due to extreme provocation.
The defendant must be acquitted if the prosecution is unable to do this.