ABSTRACT
We agree with that literature, but in this paper our focus is somewhat different. Legal analysis in Australian cases typically pays insufficient attention to the social context of the defendant and the offence. Therefore, in this chapter we examine the consequences of the failure of the criminal law to recognise and respond to structural disadvantage. We argue that what Norrie (2001) has termed the ‘psychological individualism’ of the criminal law, sometimes in conjunction with psychiatric discourse, typically forecloses the opportunity for social context to be considered other than in a limited and unsatisfactory fashion at sentencing. The individualised focus of the criminal law too often translates structural disadvantage into individual deficit or pathology and obscures the gender inequality of domestic violence. The deficiencies of such a legal analysis are most stark in some cases involving indigenous women. We also argue for greater attention to prosecutorial discretion as an important domain of legal decision-making. Most of the recent cases we have identified of women charged with a homicide offence against a background of domestic violence have resulted in guilty pleas. Few have gone to trial.
