New Zealand courts appear to have created a worrying precedent. After the abolition of the provocation defence, sentences that are more than the double of previous thresholds have been given to female victims of rape and sexual abuse who finally lash out and kill their abusers. R v Wihongi  NZLR 775 points towards a new threshold that is emerging, where the Court of Appeal increased an 8 year term of imprisonment to 12 years. Previously, sentences under provocation had resulted in around five years’ imprisonment; now, sentences lasting more than a decade are becoming more frequent.
Ms Wihongi was denied appeal to the Supreme Court and has exhausted all domestic remedies. EJP Pro Bono and On Campus were asked to prepare research on the possibility of an appeal to the United Nations Human Rights Committee or the Committee on the Elimination of Discrimination against Women.
Ms Wihongi has, as described by experts and accepted by Wild J in the High Court, a “history of victimhood”. She was repeatedly drugged, sexually abused, prostituted, and gang raped from a young age.
Her 17-year relationship with Mr Hirini was characterised by violence, most of which resulted from daring to refuse his sexual advances. One night in June 2009, Ms Wihongi fatally stabbed Mr Hirini following an argument. Ms Wihongi was sentenced by the High Court to eight years’ imprisonment, just short of the sentence of life imprisonment (with a minimum ten-year non-parole period). The Crown successfully appealed her sentence and the Court of Appeal increased Ms Wihongi’s sentence to twelve years’ imprisonment. It was held that the High Court’s departure from the presumption of life was not justified because Ms Wihongi was at “risk of violent reoffending” due to her “association” with the gang.
The Court of Appeal showed a startling and disappointing lack of understanding of sexual abuse, forced prostitution, substance abuse, and mental illness by further stating that they would only reduce her sentence if “Ms Wihongi discontinues any association with the gangs (and given their treatment of her, there is every incentive for her to do so)”. When more than 70 per cent of domestic violence injuries and death occur after women leave abusive situations, “disassociation” with the gang is rarely as simple as taking her children and walking out the door.
The Problem with Labelling
The label “battered woman syndrome” has caused problems in cases such as Wihongi. This label has been applied to women in situations of domestic abuse and has been criticised for syndromising women defendants who face homicide charges. Defendants are at risk of being treated as psychologically deficient: individual circumstances and the wider societal issues and perceptions of domestic violence are increasingly ignored.
This labelling arises from a lack of understanding of domestic abuse within New Zealand criminal law. The case report shows that the perception of criminal behaviour is coloured by broad gender stereotypes and generalisations about the way a particular defendant should behave (i.e. behaviours that separate “good women” worthy of our protection and “bad women” who deserve the abuse they receive). A defendant, such as Ms Wihongi, who does not conform to these gender expectations will be disadvantaged in sentencing.
The report investigated judicial approaches to murder cases involving domestic abuse in different jurisdictions. Prior to Wihongi, a sentencing discount had been applied in New Zealand cases involving battered defendants. This was similar to the situation in South Africa and, to a lesser extent, the United Kingdom, where domestic abuse is considered as a circumstance justifying a decreased sentence. Canadian case law also shows judicial awareness of the stereotypes surrounding battered woman syndrome. Australian case law, while differing across states, shows some judges have taken a compassionate approach in considering sentences for battered defendants.
But since Wihongi, New Zealand courts have not applied the sentencing discount in cases involving battered defendants. This suggests there could be a move towards the more strict approach under United States case law, where the psychological effect of abuse on battered defendants is rarely taken into account in sentencing, and systematic long-term abuse is regarded as an irrelevant or non-mitigating factor.
The Avenues of Complaint
Pro Bono and On Campus investigated the viability of making an application to either the Committee on the Elimination of Discrimination against Women (CEDAW) under the Convention on the Elimination of Discrimination against Women (confusingly, also CEDAW), or to the United Nations Human Rights Committee (HRC) under the International Covenant on Civil and Political Rights (ICCPR).
New Zealand is a party to the ICCPR and has ratified the First Optional Protocol. We have accepted the HRC’s jurisdiction to hear and make recommendations on alleged rights violations against individuals by the state.
In order for an application to be assessed by the Committee there must be a breach of a human right contained in CEDAW. The report found that a challenge could be made to the decision in Wihongi as the judiciary failed to refrain from discriminatory practices in interpreting the Sentencing Act 2002, article 2. The report referenced the Court’s failure to consider the systematic abuse in Ms Wihongi and Mr Hirini’s relationship as a mitigating factor in sentencing. The same standard applied to male offenders was applied in this case — ignoring systemic abuse that overwhelmingly affects women (but not men) discriminates against women.
An appeal to the HRC could be made on the basis that Wihongi breached the right to equal protection under the law (article 26). In increasing Ms Wihongi’s sentence, the Court of Appeal applied laws and defences that are framed in the context of male offending without taking into account the differences between men and women. The Court took factors such as Ms Wihongi’s association with Black Power and past history of violence as bases for increasing her sentence, rather than being symptomatic of her psychological trauma arising from persistent abuse. In doing so, the Court of Appeal incorrectly weighed the principle of gender equality against these competing concerns.
A further basis for appeal could be a breach of the right to liberty and security of the person (article 9). In failing to take mitigating factors personal to Ms Wihongi into account in sentencing, the courts failed to recognise that men and women can have different reactions to situations. The report found that New Zealand may have failed to meet the requirement to take affirmative action to prevent indirect discrimination by way of gender issues in the criminal law.
The research was undertaken jointly by EJP Pro Bono and On Campus. The scale of the research required inquiry into the relevant case law as well as some relevant academic commentary about the inequities of the justice system. Further research into psychology, criminology, and sociology were also undertaken.
The project was led by Adam Holden and Natalie Stagg, and edited by Shelley Deng, Gayathiri Ganeshan, Rosemary Judd, Ian Ko, and Helen Thompson. The research was completed by an extensive team of Pro Bono and On Campus volunteers.
Co-Project Leader Adam Holden found the compilation of the report exciting: “Having only been exposed to my own little niche of the research area for the Wihongi project, it was great to see everyone’s exceptional work all come together into a great, in-depth, informative, and concise report.” He put the success down to the many volunteers who worked hard as a team to produce the report in a relatively short space of time.
One of the volunteer researchers, Lilla Dittrich, discovered the work was no easy task, as the issues in Wihongi had not been previously considered under CEDAW. Despite this challenge, she found the case work rewarding: “It was exciting to be able to develop an argument for a potential cause of action that has not yet been taken up to the Committee and which is such an important issue. You got a real sense of developing the law.”
Adam admitted the content matter was demanding: “Overall the work was challenging, especially considering the extra-legal and sociological nature of some of the issues that confronted us. The fact situation in question was often stressful and difficult to confront given the tragic nature of cases involving domestic abuse in general and especially this particular case.” However, he maintained that this highlighted the importance of the Equal Justice Project’s role in “providing a volunteer team to work for individuals and groups who may not have full access to the intricacies of the justice system simply because of the financial and social circumstances they may find themselves in.”