{"id":13470,"date":"2025-08-05T19:52:52","date_gmt":"2025-08-05T12:52:52","guid":{"rendered":"https:\/\/ijrs.or.id\/?p=13470"},"modified":"2025-08-06T11:00:04","modified_gmt":"2025-08-06T04:00:04","slug":"comparative-analysis-of-self-defence-laws-in-cases-of-battered-women-syndrome-a-study-of-australia-and-indonesia","status":"publish","type":"post","link":"https:\/\/ijrs.or.id\/en\/2025\/08\/05\/comparative-analysis-of-self-defence-laws-in-cases-of-battered-women-syndrome-a-study-of-australia-and-indonesia\/","title":{"rendered":"Comparative Analysis of Self-Defence Laws in Cases of \u2018Battered Women Syndrome\u2019: A Study of Australia and Indonesia"},"content":{"rendered":"

I. Introduction<\/strong><\/p>\n

This paper aims to examine the legal treatment of self-defence in cases involving \u2018Battered Women Syndrome\u2019 (\u2018BWS\u2019) 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.<\/p>\n

II. Battered Women Syndrome<\/strong><\/p>\n

A.Background and definition
\n<\/em><\/strong>Battered Women Syndrome, a term coined by Lenore Walker,[1]<\/sup><\/a> 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]<\/sup><\/a>\u00a0 BWS as a form of PTSD present in survivors of gendered violence began to emerge in judicial literature from the 1980s, [3]<\/a><\/sup>\u00a0 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]<\/sup><\/a><\/p>\n

B. The relationship between battered women syndrome and self-defence
\n<\/em><\/strong>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]<\/sup><\/a>\u00a0 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]<\/sup><\/a><\/p>\n

III. Jurisdictional Considerations<\/strong><\/p>\n

It is important to note the differences of Australia and Indonesia\u2019s differing legal systems to make appropriate comparisons and considerations of their respective legal frameworks.<\/p>\n

The majority of Indonesia\u2019s 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. <\/em>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.<\/em><\/p>\n

In juxtaposition to the Indonesian national system, the Australian Constitution[7]<\/sup><\/a> limits the Commonwealth\u2019s legislative powers in the area, giving state\u2019s 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]<\/sup><\/a><\/p>\n

IV. Self-Defence Framework In Australia<\/strong><\/p>\n

A. Common law jurisdictions
\n<\/em><\/strong>Upon colonisation, Australia adopted the English common law system, and this remains the dominant legal system today. Of Australia\u2019s nine jurisdictions, three remain solely embedded in common law: New South Wales, Victoria, and South Australia.[9]<\/sup><\/a> 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]<\/sup><\/a> The test for self-defence remains subjective in common law states, per the High Court decision in Zecevic:<\/em><\/p>\n

\u2018The 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.\u2019<\/em>[11]<\/sup><\/a><\/p>\n

B. Codified jurisdictions
\n<\/em><\/strong>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 \u2018criminal codes\u2019, all states and territories remain deeply embedded in common law tradition. Sir Samuel Griffith, the father of Australia\u2019s first criminal code, drafted the Criminal Code 1899 <\/em>(Qld) with the intention of merely reproducing the common law through codification,[12]<\/sup><\/a> rather than reform it. What appears to be a seemingly large disparity across jurisdictions, scholars describing the \u2018jurisprudential difference between common law and the code traditions [\u2026] as one of emphasis rather than of kind\u2019.[13]<\/sup><\/a><\/p>\n

This is evident when analysing the differences between self-defence across states, with code jurisdictions imposing a much stricter criteria for reliance. See Queensland\u2019s provision below:<\/p>\n

271 Self-defence against unprovoked assault<\/em><\/p>\n

(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.<\/em><\/p>\n

Notable differences include the limitation of circumstances available for reliance, and objective standards of reasonableness and imminence.[14]<\/sup><\/a><\/p>\n

V. Self-Defence Framework In Indonesia<\/strong><\/p>\n

A. Current codified approach
\n<\/em><\/strong>There is no explicit article in the ICC relating to killings in a domestic setting, therefore, if charged with murder \u2018battered\u2019 women must rely on the general avenues for justification or excuse. These include self-defence and excessive self-defence.<\/p>\n

Self-defence is outlined in Article 34 of the ICC, and translates to the following:<\/p>\n

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]<\/strong><\/sup><\/a><\/em><\/p>\n

To access this justification, the following criteria must be met:<\/p>\n