Scope, context and approach
Context of this review
The Family Violence Death Review Committee
1.4The impetus for this Report is a recommendation from the Family Violence Death Review Committee (FVDRC) that the Government:
- considers modifying the test for self-defence set out in section 48 of the Crimes Act 1961 so that it is more readily accessible to victims of family violence; and
- considers the introduction of a partial defence to murder that can be utilised by primary victims of family violence who are not acting in self-defence at the time they retaliate in response to the abuse they have experienced.
1.5These recommendations were made in the FVDRC’s Fourth Annual Report, published in June 2014, which reported that, over the period 2009–2012, there were 126 family violence deaths. The FVDRC identified that 10 family violence deaths involved a killing by a victim of family violence of their abusive partner. The defendants in all those cases were women. A further three deaths involved killings by children who had been abused by fathers or step-fathers and had witnessed their mothers being abused.
1.6The FVDRC observed that victims of family violence who kill their abusers are usually charged with murder and, if convicted, can face long terms of imprisonment rather than having their long-term history of victimisation and, at times, extreme abuse recognised in the criminal justice response to their crimes. The FVDRC concluded, as a result, that victims of family violence who kill their abusers are not well served by the New Zealand justice system. The FVDRC observed that, compared with similar international jurisdictions:
… Aotearoa New Zealand is out of step in how the criminal justice system responds to [intimate partner violence] primary victims when they face homicide charges for killing their abusive partners … Firstly, it can be attributed to the fact that the defence of self-defence has been interpreted in a restrictive manner in Aotearoa New Zealand, making it difficult to apply in cases involving primary victims. Secondly, by abolishing provocation New Zealand now has no partial defences to murder for those primary victims whose circumstances do not fit within the full defence of self-defence. These defendants will now be convicted of murder rather than manslaughter. And thirdly, Aotearoa New Zealand retains a presumption of life imprisonment for murder, which is difficult to overturn even in such cases and, when it is overturned, still results in long sentences of imprisonment. As such the violent circumstances (that offenders who were [primary victims] were entrapped in and responding to) do not appear to be reflected in local verdicts to the same degree as they are in comparable international jurisdictions.
Government family violence initiativesTop
1.7Also in 2014, the Minister of Justice and the Minister for Social Development announced that family violence and sexual violence are amongst their top priorities and undertook a package of initiatives. One of the key initiatives was publication in August 2015 of a discussion document about strengthening the legal response to family violence. Within the scope of the review are the Domestic Violence Act 1995, the Care of Children Act 2004, the Crimes Act 1961, the Bail Act 2000 and the Sentencing Act 2002.
1.8Submissions on that document closed in September 2015, and a report is likely in mid-2016.
Law Commission projects on family violence and sexual violenceTop
1.9This review is one of three family violence or sexual violence projects referred to the Commission. The other two were:
- Alternative models for prosecuting and trying criminal cases. We were asked to identify best practice for improving the court experience for complainants, with a particular focus on sexual offence cases. We recommended:
- establishing an alternative process outside of court for resolving sexual violence cases (such as in situations where the victim wants to maintain a relationship with the perpetrator);
- improving the court experience for victims of sexual offending by mechanisms such as statutory time limits to ensure speedier case resolution, introducing less traumatic methods for complainants to give evidence at trial, and piloting a specialist sexual violence court with expert judges and lawyers who are trained and accredited in dealing with sexual violence cases; and
- establishing a sexual violence commission to coordinate and oversee wraparound care and services for victims of sexual violence.
This reference was tabled in Parliament in December 2015.
- Creation of a separate crime of non-fatal strangulation. In that Report, we examined the case for a new offence of strangulation. The Commission found that the risks following strangulation are not well understood by Police, judges and others who assist victims of family violence. In at least half of all cases, strangulation does not result in an obvious external injury, which makes it difficult to lay serious charges against the perpetrator and means that perpetrators of strangulation are often getting a much lower sentence than they deserve. The Commission makes seven recommendations to improve the way that the criminal justice system responds to strangulation in family violence circumstances, including a recommendation that a specific offence of strangulation should be enacted.
This reference was tabled in Parliament in March 2016.