Amicus Curiae: Family Violence – Reforming Self-Defence

Content Contributor, Emily Ferguson

Killing an intimate partner in order to protect your own life is a situation most people will likely never experience, nor fully understand. Yet, such is the reality for many victims of family violence. Years of trauma and abuse gradually increase in severity and eventually escalate to a level where the victim fears their life is in danger, and subsequently takes action. Currently, a victim of family violence who kills their abuser is unlikely to succeed in a claim in self-defence, as they are often unable to meet the necessary elements for the defence. However, there is a growing sense of injustice among the legal community and the public about how the current legislation has been written and interpreted, and the Law Commission has drafted a proposal to re-evaluate and amend the current legislation.

Nearly half of all homicides in New Zealand are related to family violence, and the majority of these homicides are committed by an abusive intimate partner.[1] In most intimate partner violence deaths, the deceased are female victims who have been subject to long periods of abuse by their partner. A small number of victims of family violence kill their abusers after years of abuse, and as a result are often charged with murder or manslaughter. The Family Violence Death Review Committee believe that victims of family violence who kill abusers are not well served by the legal defences to homicide in New Zealand, the result being they end up with long prison sentences for murder rather than having their status as a victim recognised during sentencing.[2]

The Law Commission produced Understanding Family Violence: Reforming the Criminal Law relating to Homicide,[3] a report looking at whether the law can be improved for victims of family violence who kill their abusers. President of the Law Commission, the Hon Sir Grant Hammond, stated that:

“It became clear in reviewing and reflecting on the abuse suffered by victims of family violence who kill their abusers that, in many cases, the final acts of homicide were acts of desperation.”

In New Zealand there is no current specific legislation to deal with these rare cases. In response to this, the Law Commission examined whether the test for self-defence under section 48 of the Crimes Act 1961 needed to be modified to accommodate for victims of family violence that kill their abusers after years of abuse and trauma.

In its report, the Law Commission recommended there be:[4]

  1. Continued education to support an improved understanding of family violence among judges, lawyers and Police.
  2. Reforms to the Crimes Act 1961 to clarify that self-defence may apply when a defendant is responding to family violence, even when the threat is not imminent.
  3. Amendments to the Evidence Act 2006 to identify the kind of family violence evidence that may be relevant to claims of self-defence by victims of self-defence.
  4. Amendments to the Sentencing Act 2002 to ensure consistent consideration of a history of family violence as a mitigating factor in sentencing.
  5. Consideration by the Ministry of Justice of the application of the three strikes legislation to victims of family violence who commit homicide.

The law of self-defence was developed largely in response to one-off violent encounters, usually between men. It was developed primarily in response to male violence because most violent offenders are men. The courts have interpreted section 48 to require an imminent or immediate threat, and that there must be no available alternative to the use of force.[5] The report argues the law change is necessary to make self-defence more relevant and accessible for victims of family violence who kill their abusers.

Indeed, the current self-defence requirement of the threat being “imminent” is problematic for victims of family violence, as often they have been subjected to a history of abuse instead of one isolated confrontation, and feel under constant threat of violence. Some women will respond with considerable force to an apparently minor assault, because the real threat is one of an ongoing nature, and conversely, other women may not respond immediately when attacked, but will rather wait for a time when their response is more likely to be effective.[6] Therefore, victims often attack their abusers when they are more vulnerable, such as while they are sleeping, instead of during an imminent threat of violence. Differences in physical strength or previous failed attempts to protect themselves are also factors that play into a victim’s decision to attack their abuser while they are vulnerable.

Evidence also shows that the victim retreating and seeking help may not protect them from long-term abuse or death, as women are often at high risk of being killed or seriously injured when they leave their abusive partners.[7] As a result of these issues, the Law Commission has recommended a new provision be implemented into the Crimes Act 1961 to clarify that where self-defence is claimed in response to family violence, the threat the defendant is responding to need not be imminent.

Furthermore, the Report also makes recommendations which, if effective, will ensure that women who act in genuine self-defence will not be deprived of access to that defence. Other women who don’t kill in circumstances of self-defence, yet nonetheless have suffered abuse, will have the effects of such abuse taken into account by the courts. The Law Commission’s report concluded that: “for defendants in both categories, family violence should be seen, understood, and treated in a way that reflects the true nature and dynamics of this particular and insidious form of abuse”.[8]

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[1] Family Violence Death Review Committee Fourth Annual Report: January 2013 to December 2013 (June 2014) at 16.

[2] Family Violence Death Review Committee Fourth Annual Report: January 2013 to December 2013 (June 2014) at 39-41.

[3] Law Commission Understanding Family Violence: Reforming the Criminal Law relating to Homicide (NZLC R139, 2016).

[4] Law Commission Understanding Family Violence: Reforming the Criminal Law relating to Homicide (NZLC R139, 2016).

[5] R v Wang [1990] 2 NZLR 529 (CA) at 536.

[6] Law Commission Understanding Family Violence: Reforming the Criminal Law relating to Homicide (NZLC R139, 2016) at 23.

[7] Law Commission Understanding Family Violence: Reforming the Criminal Law relating to Homicide (NZLC R139, 2016) at 18.

[8] Law Commission Understanding Family Violence: Reforming the Criminal Law relating to Homicide (NZLC R139, 2016) at 58.