Killing in a DV context and the forfeiture rule

Late last year I read a news report¹ which included the sentencing remarks from the case of Jean Louise Herholdt.

I noted she had pleaded guilty to manslaughter after stabbing her husband with a knife following a severe physical assault on her just prior and on many previous occasions. The context was that her husband had discovered the modest ‘nest-egg’ she had hidden in order to escape the relationship.

She pleaded guilty to manslaughter and was sentenced to 7½ years in jail, with immediate parole eligibility, due to time already served pre-sentence.

Nearly 20 years ago I co-authored a lengthy article (with Canadian professor Elizabeth Sheehy, an eminent expert on domestic violence and the law) on this issue,² particularly focusing on the application of the forfeiture rule to such circumstances.

Our research had shown that most women who kill in the context of severe domestic violence plead guilty to manslaughter, rather than try to argue self-defence to a murder charge and face a lengthy prison sentence.

The plea of self-defence

This happens for a number of reasons: the plea of self-defence was a masculine construct, because the law grew up in an era of predominantly male judges and lawyers. The law saw self-defence being raised, where a person struck back against an immediate assault.

It wasn’t until the 1990s in Canada,³ that the scope was widened to allow women to raise the plea in circumstances that did not fit the male paradigm. Despite R v Lavallee⁴ and other successful cases that followed in Australia also, even today, women generally still plead guilty to manslaughter rather than try to argue self-defence, because of the risks involved in a life sentence for murder.

It is also the case that there are too few defence lawyers aware of recent feminist research concerning arguing self-defence on behalf of a woman following severe domestic violence.

One recent notable case from the United Kingdom is R v Sally Challen,⁵ where a woman who killed her husband after 40 years of (mostly) emotional and psychological abuse had her conviction for murder and life sentence quashed and a new trial ordered, following the introduction of more recent evidence of the nature and impact of ‘coercive control’ and other relevant psychiatric evidence.

She was convicted of murder in 2011 and in 2019 the conviction was quashed. She was charged again with murder and the Crown accepted her plea of manslaughter on the grounds of diminished responsibility, but was eligible for parole on the basis of time served, in that case nine years.

The forfeiture rule

In any event the common law forfeiture rule (a person who kills cannot benefit from the estate of the person killed) applies both to a conviction for murder and for manslaughter.

Following a leading case in Troja v Troja,⁶ where the New South Wales Supreme Court (with a notable dissent by Kirby P) applied the forfeiture rule rigidly, without regard to the whole context of the killing, the NSW legislature passed the Forfeiture Act 1995 (NSW).

The Forfeiture Act allows judges to exercise their discretion to disallow or modify the effect of the forfeiture rule in circumstances where justice requires it, or where a layman may see the killing in as in “morally blameless circumstances” (the words used by Kirby P).

Other Australian states have followed suit,⁷ but not Queensland. This means the common law forfeiture rule still applies here. Our research showed that the common law rule had mostly been applied rigidly, but not always, even in cases of manslaughter, resulting in no right to the deceased’s estate.

Reflection on Jean Louise Herholdt

Having read the news report about Jean Herholdt, I linked it to Professor Sheehy, with a comment along the lines of “she pleaded guilty to manslaughter in circumstances that were calling out ‘self-defence’”, which our research showed is what usually happens, and then wondered whether the forfeiture rule would apply to disinherit her from his estate, if there was any property.

Then I added something like “probably good she did him in, even if she did spend some time in jail!”. That last comment sounds very unlawyerly, but in the context that we have seen in Australia – that a woman is killed by a partner or ex-partner almost weekly – it can be understood.

In most cases the woman who is killed is often at the point of separation or has separated. In many cases the woman has tried in vain to access police or legal assistance.

The ‘book club’ test

I told the women in my book club about the case and that I was writing about it.

They were outraged that she had been charged with murder. They were aghast that the police had the resources to charge a woman with murder and secure a conviction for manslaughter, (after she had been physically assaulted at the point of separation on discovery of her modest hidden ‘nest-egg’ to flee the relationship, and who in anger stabbed him, killing him while uttering some retaliatory words), but seemed incapable of effectively aiding the multitude of women who leave or are in violent relationships.

Recent history shows the likely end result is the woman’s death. The most prominent recent Australian case, though repeatedly we hear a similar version of the same story, is Hannah Clarke⁸ and her children: Hannah leaves a coercively controlling relationship, without physical violence, with the aid and shelter of her parents and accesses police and legal intervention to no avail. Within a few months of separation he ambushes her and their children in her car on a school-run and sets her and the children alight. All burn to death.

Research shows that women who leave violent relationships are in the greatest danger of being killed at the point of, or post separation. That a woman who fights back (such as Jean Herholdt) is treated so harshly says a lot about dysfunction in the legal system in the protection of women.

A feminist re-construction of ‘self-defence’?

When I wrote 20 years ago, I remember Prof. Sheehy urging me to consider that a woman may kill in self-defence in a much wider conception of a defence of ‘self’. She may not only be defending her bodily ‘self’, but her whole concept of being as a person (even though her self-esteem has been eroded by verbal abuse, humiliations, ‘gaslighting’ – i.e., psychological abuse, and/or physical violence).

Naturally, at that time we found no supportive authorities for this wider concept of self. The case of Sally Challen seems to have been the first time the nature and impact of ‘coercive control’ has been discussed explicitly and the introduction of such evidence led to the overturn of her conviction for murder.

It is probable that this evidence was allowed, because ‘coercive control’ had been criminalised in the UK in 2015. Following a retrial, it also led to a conviction for manslaughter on the grounds of diminished responsibility and immediate parole eligibility, and later a non-application of the forfeiture rule in the unusual circumstances of her case.⁹

When I considered the reported facts about Jean Herholdt, I thought the facts indicated she had come to the point where she was not only defending her physical self, but her very right to exist as an independent being.

She had built up the courage to leave a violent relationship in the face of repeated acts of physical violence (often witnessed by others), and had accumulated a modest ‘nest-egg’, so that it was financially possible. He had discovered the hidden funds and began assaulting her, including choking her in their front yard in front of other residents.

To lose any way out of the relationship in those circumstances would have been shattering. She picked up a kitchen knife and stabbed him in the back, killing him, saying “I hope you f…ing die, dog”. Naturally these comments were taken as indicative of retaliation, reaching beyond self-defence. To me they indicate her abnormal state of mind, when her means of escaping violence was taken from her.

The facts contrast somewhat with the story of Sally Challen. She was with the deceased for 40 years from the time she was 15. The violence in the relationship appeared to be mostly emotional and psychological (manipulative), rather than physical, and involved numerous infidelities on his part, including visiting prostitutes.

They had two children and he would threaten that she would lose access to them if she left him. She finally left him, but couldn’t cope on her own. She had commenced proceedings for a divorce, but he said he would reconcile with her, if she signed away any rights to property, in the event they did divorce.

Against her solicitor’s advice, she signed this agreement in her desperation to reconcile. The next day she went to see the deceased at the matrimonial home, found evidence he was seeing someone else and had been tricked into signing the agreement. She took a hammer out of her handbag and killed him, leaving a note which said:

“Richard said he would take me back if I signed a post nuptial agreement. I said I would and we both saw solicitors yesterday. I then found out he was seeing someone and sleeping with them and had no intention of taking me back. It was all a game so he could get everything. He was going to sign and then issue divorce proceedings. I can’t live without him.”¹⁰

The facts indicate a similar realisation of a final destruction of herself as a person (she then took steps to take her own life, but was talked out of it at the last moment), but despite the fresh psychiatric evidence and research considered of the impact of coercive control, self-defence was not considered an appropriate plea.

No doubt her separation from the deceased, her insistence in signing a post-nuptial agreement against her solicitor’s wishes, and taking a hammer to her meeting with him, mitigated against this.

The Herholdt case appears to me a far stronger vehicle to argue self-defence, as she was being physically assaulted by him at the same time she realised that her means of escaping his violence had been taken from her.

Herholdt and the forfeiture rule

We do not know as yet whether there is property between the deceased and Herholdt, which could properly be subject to forfeiture under the common law rule.

In any event, Queensland has not to date passed a Forfeiture Act, which would give the court a discretion to waive application of the rule in the interests of justice. However, there is the dissenting judgment of Kirby P in Troja v Troja and certain other cases, where the forfeiture rule has not been applied rigidly, that suggest an approach like that taken in Challen v Challen¹¹ in the UK (where there is a Forfeiture Act),¹² should be taken here:¹³

“I am quite satisfied that the justice of this case requires that I should disapply the forfeiture rule to the facts of this case, taken as a whole. Of course, this does not mean that any person suffering from the effects of coercive control should expect without more to have the forfeiture disapplied in case she or he should kill the person exercising such control. Every case must be decided on its own merits. I emphasise that the facts of this terrible case are so extraordinary, with such a fatal combination of conditions and events, that would not expect them easily to be replicated in any other.”

Conclusion

That a woman is killed every week in Australia by a partner or ex-partner, despite often having tried to access police and or legal intervention, should give us pause to think the legal system is failing women.

One way of reversing this is to give women a more equal chance to argue self-defence, particularly where a person is actively trying to escape or has escaped a violent relationship, and likewise to prevent further punishment by way of a rigid application of the forfeiture rule. This is not giving women a licence to kill their spouse. It is arguing for a more equal application of the law.

It is self-evident and the subject of numerous reports and enquiries that more should be done to aid women to leave physically violent and/or coercively controlling relationships safely and equitably.

It is important that ‘coercive control’ be criminalised. It can be seen from the Challen case that criminalisation was relevant to the UK court allowing fresh evidence and her murder conviction being quashed.

There are other imperatives currently being discussed and trialled in Australia, particularly related to further training of police and legal professionals, as well as providing financial assistance to a woman trying to leave or who leaves a domestic violence relationship.

However the development of the law as a masculine construct is equally an impediment and should also warrant address. A more sympathetic approach from police and prosecutors to applying a feminist approach to self-defence is necessary, as is the enactment of a Forfeiture Act in Queensland, and other Australian states.

Barbara Hamilton BA LLB (Hons) LLM lectured in succession law, equity and trusts at QUT Law Faculty for many years until she retired in 2014. She now lives on a farm running Black Angus cattle in northern New South Wales.

Footnotes
¹ R v Jean Louise Herholdt, abc.net.au/news/2022-11-18/domestic-violence-jean-louise-herholdt-sean-murray-jail/101670464 (accessed 18 November, 2022).
² Barbara Hamilton and Elizabeth Sheehy, ‘Thrice Punished: Battered Women, Criminal Law and Disinheritance’ (2004) 8 Southern Cross University Law Review 96.
³ R v Lavallee [1990] 1 SCR 852.
⁴ Ibid.
⁵ [2019] EWCA Crim 916.
⁶ (1994) 33 NSWLR 269.
⁷ Forfeiture Act 1991 (ACT).
⁸ courts.qld.gov.au/__data/assets/pdf_file/0010/723664/cif-hannah-clarke-aaliyah-baxter-laianah-baxter-trey-baxter-and-rowan-baxter.pdf Coroner’s court findings of inquest 29 June 2022.
⁹ Challen v Challen [2020] EWHC 1330 (Ch).
¹⁰ Ibid at para [23].
¹¹ [2020] EWHC 1330 (Ch).
¹² Forfeiture Act 1982 (UK).
¹³ [2020] EWHC 1330 (Ch) [72].