I. Introduction
This paper aims to examine the legal treatment of self-defence in cases involving ‘Battered Women Syndrome’ (‘BWS’) in Australia and Indonesia. It discusses the legal frameworks, judicial interpretations, and societal attitudes towards self-defence in the context of victims of domestic violence (DV) killing their partners. Drawing upon case studies from both jurisdictions, the paper analyses the challenges and opportunities for implementing women battered syndrome as a valid reason for self-defence in Indonesia, based on the Australian experience. The paper also proposes strategies for enhancing legal protections and support for survivors of domestic violence in Indonesia.
II. Battered Women Syndrome
A.Background and definition
Battered Women Syndrome, a term coined by Lenore Walker,[1] is used in forensic psychology to describe the psychological effects of surviving intimate partner violence (IPV). While there are a number of diverging theories regarding the appropriate definition of the term,[2] BWS as a form of PTSD present in survivors of gendered violence began to emerge in judicial literature from the 1980s, [3] and attempted to justify the act of reactive violence by women who kill their abusive partners. Since inception BWS has been heavily critiqued in feminist, sociological and legal literature, resulting in a shift away from the term.[4]
B. The relationship between battered women syndrome and self-defence
BWS has been found to result in women being more likely to perform retaliatory attacks on their abusers. Where these attack result in matricide, it has been historically difficult for these women to rely on traditional forms of self-defence. This was due to the general requirement for self-defence to be a necessary response to an imminent attack.[5] This difficulty in satisfying the requirements of self-defence as a general justificatory defence has resulted large-scale, international legal reform to make appropriate considerations regarding the complexities associated with BWS killings.[6]
III. Jurisdictional Considerations
It is important to note the differences of Australia and Indonesia’s differing legal systems to make appropriate comparisons and considerations of their respective legal frameworks.
The majority of Indonesia’s substantive criminal law is codified under national legislation, binding all districts. While provinces can enact their own legislation, the principal source of law is the Criminal Code, or Kitab Undang-Undang Hukum Pidana. The Criminal Code currently in force was adapted from the Dutch Criminal Code. In line with independence and toward decolonisation, this code is due to be replaced by a new National Criminal Code from 2026. As there were no changes made to effect the application of the articles relevant for this report, hereafter the Indonesian Criminal Code (ICC) referred to will be the new National Criminal Code, Criminal Code Act 2023.
In juxtaposition to the Indonesian national system, the Australian Constitution[7] limits the Commonwealth’s legislative powers in the area, giving state’s autonomy in most criminal law-making. Therefore, each state jurisdiction has its own independent criminal justice systems (CJS) made up of numerous sources of law and procedures. The most important distinction to make is the weight of judicial precedent in the Australian. Numerous states in Australia have moved towards a comprehensive codified approach to criminal law which gives priority to statutory provisions, but the role of precedent in judicial decisions remains binding on lower courts and cannot be understated.[8]
IV. Self-Defence Framework In Australia
A. Common law jurisdictions
Upon colonisation, Australia adopted the English common law system, and this remains the dominant legal system today. Of Australia’s nine jurisdictions, three remain solely embedded in common law: New South Wales, Victoria, and South Australia.[9] Each of these states still has its own respective criminal law acts, but there are a number of gaps in the legislation which are supplemented by common law rules and developing precedent.[10] The test for self-defence remains subjective in common law states, per the High Court decision in Zecevic:
‘The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.’[11]
B. Codified jurisdictions
Interestingly, some Australian states and territories have departed from the traditional common law system and implemented a codification process in drafting their criminal laws. These jurisdictions are considered code states or territories. Despite the implementation of ‘criminal codes’, all states and territories remain deeply embedded in common law tradition. Sir Samuel Griffith, the father of Australia’s first criminal code, drafted the Criminal Code 1899 (Qld) with the intention of merely reproducing the common law through codification,[12] rather than reform it. What appears to be a seemingly large disparity across jurisdictions, scholars describing the ‘jurisprudential difference between common law and the code traditions […] as one of emphasis rather than of kind’.[13]
This is evident when analysing the differences between self-defence across states, with code jurisdictions imposing a much stricter criteria for reliance. See Queensland’s provision below:
271 Self-defence against unprovoked assault
(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
Notable differences include the limitation of circumstances available for reliance, and objective standards of reasonableness and imminence.[14]
V. Self-Defence Framework In Indonesia
A. Current codified approach
There is no explicit article in the ICC relating to killings in a domestic setting, therefore, if charged with murder ‘battered’ women must rely on the general avenues for justification or excuse. These include self-defence and excessive self-defence.
Self-defence is outlined in Article 34 of the ICC, and translates to the following:
Any Person who is compelled to commit a prohibited act shall not be sentenced, if said act is carried out due to a defence against an attack or threat of immediate attack which are unlawful upon oneself or another person, honour in the sense of decency, or property of oneself or that of another person.[15]
To access this justification, the following criteria must be met:
- there is an attack, where the attack must threaten at the same time or it is feared that it will happen immediately;
- the attack must be unlawful;
- there is a defence that is required and very necessary; and
- those defended are limited, namely: oneself or other people, the honour of oneself or others, or one’s own or other people’s property.[16]
If successfully met, article 34 acts as a justificatory defence and could exclude a defendant from criminal punishment.[17]
Article 43 of the ICC details the excusatory defence for circumstances of excessive self-defence:
Anyone who commits excessive self-defence, which is directly caused by a severe mental shock due to an attack or threat of immediate attack against the law, shall not be punished.
The requirements for this defence are similar to that of article 34, but to be used in circumstances where the reaction was excessive due to severe mental shock.
B. Intersection of battered women syndrome
With legislation not making considerations for the role of BWS in matricide cases, women are unlikely to be able to access the general routes of self-defence available. If a defendant is unable to rely on either of these defences, division one murder carries a sentence carries a sentence of 15 years imprisonment, and in circumstances of determined premeditation – and in some cases the death penalty.[18] In the recent case no. 907/Pid.B/2020/PN, Zuraida Hanum was charged, convicted and sentenced to death for the murder of her husband Jamaluddin. The pair were married with children, and evidence was brought in the proceedings citing a history of abuse, infidelity, and molestation on the part of Jamaluddin. Without an avenue of self-defence relevant to cases of BWS, Zuraida was failed by the Indonesian criminal justice system.
Zuraida’s desire to leave her abusive marriage were misconstrued as sinister intent, allowing the prosecution to build a strong case for a revenge killing, giving Zuraida motive and intent. The prosecution’s case rested heavily on witness testimonies, expert evidence, and Zuraida’s own coerced confession. Evidence was brought that Zuraida discussed her intention to kill Jamaluddin with M. Jefri Pratama and M. Reza Fahlevi, who agreed to help. She allegedly offered money and a marriage proposal to gain their assistance. This case exemplifies the overlooks the nuanced realities of Zuraida’s situation as a victim of DV. Zuraida’s actions, though extreme, arguably stemmed from a place of desperation and self-preservation rather than malice.
For Zuraida, additional aggravation was granted due to her relationship with the deceased, her killing the deceased while he was asleep in their home and the role of the deceased as respected community member.[19] A connection can be made to the outdated social connotations that undermine BWS research and inhibit the avenues for justice for victims of DV. For instance, it is proven that in cases of BWS, the female victim of abuse may feel as though their only option is kill their abuser.[20] It is likely these acts of reactive violence will occur in a non-confrontational situation, like when the perpetrator is asleep,[21] excluding women from accessing a self-defence at law, leaving Zuraida vulnerable to capital punishment.
VI. Implementing Women Battered Syndrome As A Defense: Australian Case Study
A. Legislative reform in Queensland
This portion of the report will consider Queensland’s implementation of a new defence designed specifically for victims of abuse who commit non-confrontational matricide. The Queensland Law Reform Commission (QLRC) released an extensive report on the application of the excuse of accident and the defences of self-defence and provocation in a domestic violence context.[22] Following a thorough consultation process involving multiple stakeholders, it was suggested that Queensland implement a stand-alone partial defence to murder. This defence would grant victims of domestic abuse the ability to kill their accused perpetrators if they believe it is essential for self-defence. This partial defence now sits under s304B of the Criminal Code Act 1899 (Qld). The section reads:
Killing in an Abusive Domestic Relationship
- A person who unlawfully kills another (the “deceased”) under circumstances that, but for the provisions of this section, would constitute murder, is guilty of manslaughter only, if—
(a) the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship; and
(b) the person believes that it is necessary for the person’s preservation from death or grievous bodily harm to do the act or make the omission that causes the death; and
(c) the person has reasonable grounds for the belief having regard to the abusive domestic relationship and all the circumstances of the case.[23]
Prima facie, by removing the requirement to prove imminence, killing due to BWS associated reasons could be excused by this provision. While there has been legislative movement in the area, there is still a long way to go for victims of DV in Australia.
B. Law enforcement and vulnerable peoples
An alternative to legislative change is the prioritisation of education and increased community awareness of gendered violence in a domestic setting. Attitude changes are required across the criminal justice system, beginning with law enforcement. The private nature of FV offences often deters victims from reporting the incidents, with 82% of women and 97% of men deciding not to report their abuse to the police.[24]
Primary source, Sergeant Elise Feltham,[25] relayed that a dominant issue in the law enforcement context in Australia is the lack of education surrounding the nuances of DV and the stigma.
‘There is still some poor culture within the police in relation to domestic and family violence. This involves some officers not recognising the risk factors and not using a victim centric approach when investigating DFV’.[26]
Additionally, the recent findings of the Commission of Inquiry into Queensland Police Service responses to family and domestic violence, detailed a number of ingrained cultural issues within the Queensland Police Service (QPS) which are directly affecting the outcomes of First Nations’ respondents and aggrieved.[27] Reactive killings that then stem from DV are an inherently gendered issue,[28] but it is important not to overlook the intersectionality of the issue and how the minority groups are uniquely affected by the phenomenon.
The report also stated that First Nations women are often misidentified as perpetrators of domestic violence and are being incorrectly charged.[29] This is contributing to a growing incarceration rate of First Nations women, who are 37.3 times more likely to be incarcerated for a domestic and family violence related charge than a non-indigenous woman.[30] Additionally, First Nations women are more likely to resort to resistive violence due to a perceived limited access to culturally safe services or remedies, like those provided by the police.[31] This is further perpetuated in the misidentification of First Nations victims, leaving these women fearful of incarceration and feeling the need to take justice into their own hands rather than trust the CJS.[32]
An important link can be drawn between victims of DV in Indonesia and Australian First Nations women, with the above case studies exhibiting comparable similar socio-cultural limitations and expectations. By taking a step back to before ‘battered women’ feel trapped to the point of reactive violence, reliance on judicial interference would decline.
VII. Recommendations And Conclusion
Legislative reform alone is not the only way to address the complexities of BWS. Instead, a multi-faceted approach is required, focusing on addressing the root causes of domestic violence, enhancing support services for survivors, and fostering societal change. Resources should be allocated towards comprehensive interventions, including education, awareness-raising, community outreach, and support networks, to tackle the underlying factors contributing to domestic violence.
Genoveva Alicia, UNAIDS researcher, highlighted the importance of considering alternatives to a policy driven approach, especially in an Indonesian context. While legislative reform in Australia was evident after a decade, advocates for social justice and lobbyists in Indonesia have faced a much longer timeline in the pursuit of equitable criminal justice – with the passing of the new ICC taking upwards for forty years.[33] Genoveva Alicia hypothesised the introduction of more expansive education for solicitors, to provide stronger representation defendants.[34] Moreover, collaboration between legal institutions, government agencies, civil society organisations, and international stakeholders is essential to develop strategies for addressing to best tackle the large scale of the issue.[35]
While Australia has made significant legislative reforms to recognise WBS as a valid defence in cases of domestic violence, the effectiveness of these reforms in achieving justice for survivors remains to be seen. Despite legislative changes, challenges persist in the interpretation and application of the law,[36] highlighting the need for ongoing scrutiny and evaluation of legal frameworks. The comparison with Indonesia underscores the complexities and difficulties in implementing similar legislative reforms in a different cultural and legal context. The legal recognition of BWS as a defence faces substantial hurdles in Indonesia, including cultural attitudes, limited resources, and institutional barriers.
In conclusion, while legislative reform is an important step towards recognising BWS as a defence in cases of domestic violence, it must be complemented by broader societal interventions to achieve meaningful change.
IIX Bibliography
Alfitri Alfitri, ‘Protecting women from domestic violence: Islam, family law, and the state in Indonesia’ (2020) 27(2) Studia Islamika 273
Australian Bureau of Statistics 2017
Colvin, Eric, John McKechnie and Jodie O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary (LexisNexis Butterworths, 7th edition, 2015) Chapter 1. Andreas Schloenhardt, Queensland Criminal Law (Oxford University Press, 4th edition, 2015) Chapter 1
Commission of Inquiry into Queensland Police Service responses to domestic and family violence (Final Report, November 2022)
Dutton, Mary Ann, ‘Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome’ (1993) 21(4) Hofstra Law Review 1191
Edgley, Michelle and Elena Marchetti, ‘Women who kill their abusers: How Queensland’s new abusive domestic relationships defence continues to ignore reality’ (2011) 13(1) Flinders LJ, 128
England, Christina ‘The battered women’s syndrome: A history and interpretation of the law of self-defense as it pertains to battered women who kill their husbands’ (2007) 3(1) Vanderbilt Undergraduate Research Journal
Hancock, Linda, ‘Aboriginality and Lawyering: Problems of Justice for Aboriginal Defendants—Focus on Partner Homicide’ (1996) 2(4) Violence Against Women 429
Hubble, Gail, ‘Feminism and the Battered Woman: The Limits of Self Defence in the Context of Domestic Violence’ (1997) 9(2) Current Issues in Criminal Justice 113
Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, (Report, No 68, September 2008)
Walker, Lenore, ‘Battered Women Syndrome and Self-Defense’ (1992) 6(2) Notre Dame Journal of Law: Ethics and Public Policy 302
Santoso, Topo, Principles of Indonesian Criminal Law. Bloomsbury Publishing, 2023
Schloenhardt, A, Queensland Criminal Law (Oxford University Press, 4th edition, 2015) LXVII
Walker, Lenore, The Battered Women (Harper and Rowe, 1979)
Walker, Lenore,‘Battered woman syndrome: Empirical findings’ (2006) 1087(1) Annals of the New York Academy of Sciences 142
B Cases
Zecevic v Department of Public Prosecutions (Vic) (1987) 162 CLR 645
C Legislation
Criminal Code 1899 (Qld)
Criminal Code Act 2023
Kitab Undang-Undang Hukum Pidana
[1] Lenore Walker, “Battered woman syndrome: Empirical findings,” Annals of the New York Academy of Sciences 1087, no. 1 (2006): 142-157.
[2] Walker, “Battered woman syndrome: Empirical findings,” 143.
[3] Lenore Walker, “Battered Women Syndrome and Self-Defense” Notre Dame Journal of Law: Ethics and Public Policy 6, no. 2 (1992): 302.
[4] Mary Ann Dutton, “Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome,” Hofstra Law Review 21, no. 4 (Summer 1993): 1191-1242, 1195.
[5] Gail Hubble, ‘Feminism and the Battered Woman: The Limits of Self Defence in the Context of Domestic Violence’ Current Issues in Criminal Justice 9, no. 2 (1997): 113.
[6] Christina L. England “The battered women’s syndrome: A history and interpretation of the law of self-defense as it pertains to battered women who kill their husbands,” Vanderbilt Undergraduate Research Journal 3 (2007): 3.
[7] Commonwealth of Australia Constitution Act, s 51.
[8] Sonali Walpola, “The development of the high court’s willingness to overrule common law precedent,” Federal Law Review 45, no. 2 (2017): 293.
[9], Andrew Hemming, Criminal Law Guidebook: Queensland and Western Australia. Oxford University Press, 2015: 6.
[10] Eric Colvin et al, Criminal Law in Queensland and Western Australia: Cases and Commentary (LexisNexis Butterworths, 7th edition, 2015) Chapter 1. Andreas Schloenhardt, Queensland Criminal Law (Oxford University Press, 4th edition, 2015) Chapter 1, 6.
[11] Zecevic v Department of Public Prosecutions (Vic) (1987) 162 CLR 645.
[12] A. Schloenhardt, Queensland Criminal Law (Oxford University Press, 4th edition, 2015) LXVII.
[13] Colvin, “Queensland and Western Australia: Cases and Commentary,” 7.
[14] Arlie Loughnan and Clare Davidson, “Proposed and actual reforms to self-defence laws in Australia and their impact on women experiencing family violence,” Centre for Womens Justice (2023): 6. https://static1.squarespace.com/static/5aa98420f2e6b1ba0c874e42/t/64a58aac48b25f2af05ac74f/1688570542199/CWJ+Arlie+Loughnan+and+Clare+Davidson+Australia.pdf.
[15] Criminal Code Act 2023 (Republic of Indonesia), article 34.
[16] Topo Santoso, “Principles of Indonesian Criminal Law,” (Bloomsbury Publishing, 2023), 147.
[17] Santoso, “Principles of Indonesian Criminal Law,” 7.
[18] Criminal Code Act 2023 (Republic of Indonesia), article 458.
[19] 907/Pid.B/2020/PN.
[20] Alfitri Alfitri. “Protecting women from domestic violence: Islam, family law, and the state in Indonesia.” Studia Islamika 27, no. 2 (2020): 273-307. 275
[21] Michelle Edgely and Elena Marchetti, “Women who kill their abusers: How Queensland’s new abusive domestic relationships defence continues to ignore reality,” Flinders Law Journal 13, no. 1 (2011): 125
[22] Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, (Report, No 68, September 2008).
[23] Criminal Code 1899 (Qld), 304B.
[24] Australian Bureau of Statistics 2017.
[25] Officer in Charge at the Vulnerable Persons Unit at the Queensland Police Service (QPS).
[26] Interview with Elise Feltham, Officer in Charge at the Vulnerable Persons Unit at the Queensland Police Service (QPS).
[27] Commission of Inquiry into Queensland Police Service responses to family and domestic violence (Report, November 2022) (‘Commission of Inquiry’) 42.
[28] Edgely and Marchetti, “Women who kill their abusers: How Queensland’s new abusive domestic relationships defence continues to ignore reality,” 125.
[29] Commission of Inquiry, 222.
[30] Commission of Inquiry 223.
[31] Commission of Inquiry.
[32] Commission of Inquiry 217.
[33] Topo Santoso, Principles of Indonesian Criminal Law (Bloomsbury Publishing, 2023), 40.
[34] Interview with Genoveva Alicia, UNAIDS, 2 February 2024.
[35] Evelyn Rose, “A feminist reconceptualisation of intimate partner violence against women: A crime against humanity and a state crime,” Women’s Studies International Forum 53, (2015): 31. <https://www.sciencedirect.com/science/article/pii/S0277539515200118>.
[36] Edgely and Marchetti, “Women who kill their abusers: How Queensland’s new abusive domestic relationships defence continues to ignore reality,” 125.
