Contents

Chapter 2
Understanding family violence

Contemporary understanding of family violence

2.24The FVDRC calls for a change to the way New Zealand understands:

2.25Central to this Report is how we understand and interpret the action of a victim of family violence in killing their abuser. In particular, as we go on to explain in Chapter 6, a victim’s use of fatal force against her abuser must be regarded as “reasonable” in the circumstances for a claim of self-defence to succeed.

2.26Understanding victim responses to family violence can be difficult. People who have not experienced violence themselves can struggle to understand why a victim responded in the way that they did. The question commonly asked is “why didn’t she just leave?” The answer to questions of this kind can be complex and counter-intuitive. The FVDRC argues that victims’ responses can be properly understood only by viewing intimate partner violence as a form of “social entrapment”.106

Intimate partner violence as a pattern of harm

2.27The FVDRC suggests that, rather than a series of discrete events, family violence is best understood as a pattern of harmful behaviour.107 This behaviour, it is argued, belongs to the primary aggressor (not the relationship) and is bigger than both the constituent incidents of physical violence and the current relationship.
2.28In its submission on the Issues Paper,108 the FVDRC suggested that thinking of intimate partner violence as a pattern of harm enables a helpful shift in thinking. Episodes of violence can better be understood in the wider context of the primary aggressor’s behaviour (including physical violence as well as controlling and coercive behaviour) in both the current relationship and previous relationships.109
2.29Viewing intimate partner violence as a pattern of harm also reframes single violent episodes as components of an “escalating spiral of violence” rather than one-off events.110 This recognises the cumulative effect of such violence, which is more than the sum of individual acts of violence. The FVDRC’s regional reviews, for example, showed that:111

The cumulative and compounding effect of the abuse also frequently resulted in a raft of secondary issues. These included physical and mental health issues, histories of self-medicating with drugs and alcohol, suicide attempts and the inability to hold down employment. [Victims of intimate partner violence] often had difficulty in parenting their children, which – in some cases – resulted in them terminating pregnancies because they could not face bringing another child into “a nightmare situation” or their children being physically removed from them because they were unable to keep them safe.

2.30In a similar vein, American researcher Evan Stark notes it is difficult to reconcile long-term abuse and cumulative harm with the criminal law’s traditional focus on discrete incidents of violence. He says:112

Sheer repetition is not the issue. Even though pickpockets, muggers or car thieves typically commit dozens of similar offenses, because each harm is inflicted on a different person, the law is compelled to treat each act as discrete. But the single most important characteristic of woman battering is that the weight of multiple harms is borne by the same person, giving abuse a cumulative effect that is far greater than the mere sum of its parts. As British sociologist Liz Kelly has pointed out in her work on sexual predators, a victim’s level of fear derives as much from her perception of what could happen based on past experience as from the immediate threat by the perpetrator.

2.31When family violence is understood as a pattern of harm, misconceptions such as those discussed below can be addressed.

MISCONCEPTION 1:
“All he did was hit her now and again. The violence wasn’t that bad.”

Family violence is more than just physical assaults. It usually involves a combination of physical, psychological, emotional, social and financial abuse.113 Physical violence is generally only one method of maintaining power and control in the relationship.

Failing to understand family violence as being more than physical assaults overlooks the broader dynamics often involved in family violence, including the use of coercive control.114  Coercive control operates through the use of a range of abusive strategies tailored to the unique psychology of the target, designed to control the victim even when she is not in the presence of her abuser.115  Threats of physical violence, for example, are often as powerful in maintaining control over a victim as actual incidents of violence, as once a perpetrator has shown they are capable of carrying out the threats made, there is no need to resort to physical assaults.116  The often unpredictable nature of abusive outbursts leaves some women in a state of constant fear for their lives.117

MISCONCEPTION 2:
“Her fear is irrational or unreasonable.”

International reviews have consistently found that the number one risk factor for intimate partner homicide is prior family violence.118 This poses a considerable challenge in objectively assessing the risk of intimate partner homicide, as only a “tiny proportion” of men who have been violent eventually commit homicide, and there is clear empirical evidence to suggest that, qualitatively, men who kill their spouses do not differ greatly from those who use non-lethal violence.119

Instead, the research tells us that a woman’s own appreciation of risk is the most reliable predictor of her partner’s future violence towards her.120  This is because the victim will have become hypervigilant and attuned to signals of impending violence.121  Primary victims who misjudge the likelihood of future violence tend to underestimate, rather than overestimate, the risk of violence.122

Intimate partner violence as a form of entrapmentTop

2.32The FVDRC considers that two assumptions underpin current understanding of victims’ responses:123
2.33However, these assumptions are challenged when intimate partner violence is understood as a form of social entrapment with three dimensions:124
2.34The FVDRC argues:126

An entrapment approach requires an investigation in each case of the manner in which a particular victim’s choices have been constrained by the violence they have experienced. This includes considering past responses to their help-seeking and the larger structural constraints of their lives, including the structural constraints of their families, whanau and communities. It involves interpreting their behaviour in that context.

2.35This does not involve assuming all victims’ experiences of or responses to abuse are the same, nor does it assume victims automatically possess autonomy and choice or are deprived of autonomy and choice as a result of being abused.127
2.36By understanding family violence as a form of entrapment, the misconceptions identified below and others such as “if a victim stays in a relationship or returns to a relationship, the violence can’t have been that bad or the victim must have been partly to blame”128 and “a person’s cultural background or language is no barrier to accessing help”129 can be addressed.

MISCONCEPTION 3:
“She could have just left.”

A common assumption is that a primary victim can avoid further violence by simply leaving the relationship.130 However, the evidence demonstrates that it is in fact very difficult for primary victims to safely leave abusive relationships and that women are most likely to be killed by an abusive partner in the context of an attempted separation.131 The FVDRC states that “of the 85 [intimate partner] deaths from 2009–2014, Police records suggested that almost half took place in a separation context. Nine of these were planning separations, while 29 had already separated from the predominant aggressor.”132 This trend is consistent with overseas patterns.133 Indeed, some studies conclude that, following a break-up of a relationship involving intimate partner violence, the predominant aggressor stalks, harasses, attacks and sometimes kills their ex-partner in 75 per cent or more of all cases.134

MISCONCEPTION 4:
“She was violent too, so her fear was not real.”

Some women retaliate and resist coercive control by using violence themselves, sometimes in an attempt to try and establish a semblance of parity in the relationship, other times in violent self-defence, violent retaliation and violent resistance.135 Primary victims may also use violence when they sense another attack from the predominant aggressor is about to occur.136

However, while a predominant aggressor may not be the first party to initiate violence on any particular occasion, he or she will use violence more – and differently – across the relationship as a whole. The primary victim/predominant aggressor dynamic is important in assessing culpability for relationship violence because it takes account of the whole of the relationship, not just discrete events.

Social isolation, fear and coercion

2.37Coercive control is considered by many to be central to contemporary understandings of family violence and particularly intimate partner violence.137 Stark explains coercive control by separating the different tactics of “coercion” and “control”.138
2.38Coercion tactics involve the use of violence or threats to intimidate or hurt victims and instil fear. Examples include severe beatings, sexual violence and acts like strangulation, which has been described as “the domestic violence equivalent of water boarding”,139 as well as threats, stalking, destruction of property and violence against children or pets.140 Coercive behaviour is apparent in the cases we have reviewed. One expert, cited in the Victorian Law Reform Commission’s Report Defences to Homicide, explained the power of this kind of abuse:141

A commonly reported pattern of abuse is the limited use of physical assaults, with daily threats of physical abuse and verbal abuse. The threats of physical violence are often as powerful in maintaining control over a victim as the actual incidents of violence. Once the perpetrator has shown they are capable of carrying out the threats made, there is no need to resort to physical assaults. The often unpredictable nature of abusive outbursts leaves some women in a constant state of fear for their lives.

2.39Control tactics, on the other hand, are designed to isolate and foster dependence on the abuser and their lifestyle. They include deprivation, exploitation and micro-regulation of everyday life, for example, limiting access to money and food, or controlling how women dress.142 Together, coercive and control tactics undermine a victim’s ability for independent decision making and inhibit resistance and escape.143
2.40Not all family violence can be explained this way, but coercive and controlling behaviours are “prototypical” in intimate partner violence and help explain why victims stay in abusive relationships.144 Further, while coercive control has been applied and discussed principally in connection with intimate partner violence, non-intimate family relationships may also involve behaviours of coercion and control.145
2.41Stark has said that women with whom he has worked “[insist] that ‘violence isn’t the worst part’ of the abuse they experience”.146 In essence, family violence is more than physical assaults and isolates and entraps victims. The FVDRC states that:147

[The] nature of coercive control makes it almost impossible for many victims to remove themselves and their families from an abusive partner … The violence is directed at isolating the victim from potential support and undermining her self-determination.

2.42Examples of coercive controlling behaviour by the primary aggressor recorded by the FVDRC include smashing multiple phones so their partner is uncontactable and cannot contact others, keeping at least one child at home every time a partner leaves so the partner has to return, and controlling access to friends and relatives.148
2.43These behaviour types receive little attention in the cases we have reviewed. They are less obvious than physical assaults and may, of course, not be reported by primary victims. The FVDRC cautions that, within a coercive and controlling environment:149

Many women are hypervigilant in order to manage their and their children’s safety. Thus, apparent rejections of help or a lack of response to service enquiries may be an attempt to maintain their personal safety and that of their children.

2.44Just as it is important to consider the use of violence by predominant aggressors within the context of a pattern of harm, the FVDRC argues it is also important to think of violence used by primary victims as resistance to that pattern of harm rather than as an isolated incident of aggression.

Institutional responses to victims seeking help

2.45Despite the dangers separation poses for primary victims and the coercive and controlling tactics that may inhibit escape, the FVDRC records that many victims go to considerable lengths to try and protect themselves and their children. They may relocate to refuges, take out protection orders, or contact Police, other agencies or family, whānau and friends for help.150
2.46The FVDRC found in its death reviews that many victims of family violence were unable to access proper support to achieve safety, despite their attempts and the well-meaning efforts of many individuals working within the family violence system. It notes that the “reality is that real help within our current family violence system is sporadic, unpredictable and frequently not available for victims”.151

Structural inequities

2.47The FVDRC cautions that, beyond the dynamics of individual relationships, wider structures contribute to and support entrapment.152 It observed that a number of primary victims identified in the regional death reviews had unaddressed histories of childhood abuse and trauma and compounding experiences of victimisation throughout their adult life, which left them extremely vulnerable. Primary victims were often grappling with co-occurring issues such as addiction and mental health, and many were in positions of extreme economic disadvantage.153 It states:154

Gender inequity, racism, poverty, social exclusion, disability, heterosexism and the legacy of colonisation shape people’s experiences of abuse. Victims who are in the most dangerous social positions may face higher levels of violence and have less support and resources to manage. These victims may well have extended families and communities that are experiencing intergenerational trauma as the historical legacy of colonisation. They are also more likely to be confronted with discriminatory attitudes when seeking help from services charged with protecting and/or providing support to them and their children.

Māori

2.48Māori are disproportionately represented in family violence deaths as both offenders and victims.155 The FVDRC identified that:156

Māori women are likely to have lower levels of education, be poorer, live in areas with poor quality housing and have their children younger. Māori women are more likely to experience racist attitudes and indifference when seeking help from agencies and services. They are also almost six times more likely to be hospitalised because of assault and attempted homicide, and 1.6 times more likely to die of assault and homicide. When their children are harmed, Māori women tend to be socially demonised, evident in the media’s “mother blaming”, with little consideration of the horrific ongoing abuse and violence the women themselves live with.

2.49The FVDRC considers this is a matter of significant concern and suggests that “patterns of normalisation of violence” revealed by the regional reviews may be “a legacy of colonisation and institutional racism”.157 It states:158

Violence within Māori whānau (immediate and wider family) cannot be addressed without considering the impacts of colonisation on Māori whānau. The colonising agenda was assimilation of Māori and the dispossession of their land, language and cultural practices. The loss of land, along with the urbanisation of many Māori, disconnected them from their tūrangawaewae (place connected with whakapapa to stand) and their cultural connections. With this disconnection came the loss of the protective supports that are inherent in the traditional functioning of whānau, and also the important cultural beliefs that saw women and children as valued and protected members of Māori society.

These losses, combined with the imperative that Māori conform to dominant (ie, colonial) cultural traditions, meant the collective responsibility and obligation to protect and nurture women and children within whānau and hapū disappeared. In addition to structural changes to many whānau, gender roles that were traditionally complementary and involved men having an active role in caring for tamariki were changed. Instead, whānau became the private domain of men, and male dominance became a feature in Māori society. Māori women no longer held equal positions and could not rely on the protective korowai (cloak) of the wider whānau. In today’s society, many Māori men are exposed to, and influenced by, dominant non-Māori forms of masculinity.

2.50The Ministry of Justice, in Strengthening New Zealand’s Legislative Response to Family Violence, also suggests:159

... compounded disadvantage rather than individual risk factors may underlie the risks of wāhine and tamariki Māori being victims of family violence and tāne Māori being apprehended and convicted of a family violence offence.

2.51The Ministry of Justice also identifies Pacific people and ethnic migrant communities as experiencing higher rates of intimate partner violence than the general population.160 These groups can face distinct socio-economic, cultural and practical barriers that may make it more difficult to seek help. Other groups of people identified as being particularly vulnerable to family violence include older people, who may be at risk of intimate partner violence or financial abuse by other family members, and disabled people, who may rely on others for day-to-day care, increasing the risk of family violence.161

Gang association

2.52The FVDRC also highlights that gangs are frequently environments where the members compound and exacerbate traditional assumptions about women’s roles and justifications for violence against women.162 Women who live with gangs are at greater risk of more frequent and severe violence.163 The FVDRC posits that violence against women and children in gang cultures is often more frequent and extreme than in other contexts, and victims’ fears of retaliation if they leave abusive relationships may be greater. In its submission on the Issues Paper, the FVDRC stated that resistance to a partner’s violence is likely to be impeded and made more dangerous “due to the collective tactics of entrapment and coercion that gang membership can enable”.164 Women may be abused by other gang members as well as their partner, and fear of gang retaliatory violence and intimidation are “very real barriers” to seeking help or leaving a violent relationship.165
2.53Seven of the 12 cases the FVDRC identified between 2009 and 2014 in which female primary victims of intimate partner violence killed abusive male partners had a gang element,166 yet in our review of cases since 2001, a gang element was identified in only one sentencing decision,167 in which that aspect of the defendant’s background was addressed in expert evidence filed on appeal. Some degree of gang association appears also to have been a feature of in three further cases168 although our source of information in those cases is media reports.
106Family Violence Death Review Committee, above n 60, at 36.
107At 36.
108Law Commission Victims of Family Violence Who Commit Homicide (NZLC IP39, 2015).
109Family Violence Death Review Committee submission at 11. See also Family Violence Death Review Committee, above n 60, at 36.
110Family Violence Death Review Committee, above n 60, at 36.
111Family Violence Death Review Committee, above n 61, at 79.
112Stark, above n 69, at 94.
113Family Violence Death Review Committee, above n 61, at 71; and Victorian Law Reform Commission, above n 71, at 161.
114Family Violence Death Review Committee, above n 61, at 71.
115At 72.
116At 71.
117At 71.
118Jennifer Martin and Rhonda Pritchard Learning from Tragedy: Homicide within Families in New Zealand 2002-2006 (Ministry of Social Development, April 2010) at 38.
119At 39, discussing M Aldridge and K Browne “Perpetrators of spousal homicide: a review” (2003) 4 Trauma, Violence and Abuse 265. According to a Report commissioned by the United States National Institute of Justice (USNIJ) in 2005, several studies have examined “escalation” within intimate partner violence and found that, while patterns vary across different types of relationship and different types of violence, increases in the frequency and intensity of domestic violence were common and unpredictable: Alex R Piquero and others Assessing the Offending Activity of Criminal Domestic Violence Suspects: Offense Specialization, Escalation, and De-Escalation Evidence from the Spouse Assault Replication Program (United States National Institute of Justice, NSJ 212298, December 2005). The findings of another study undertaken for the USNIJ similarly “contradicted overgeneralisations about high-risk batterers” who are not “easily ‘typed’ or predicted”: D Alex Heckert and Edward W Gondolf Predicting Abuse and Reassault Among Batterer Program Participants (United States National Institute of Justice, NCJ 199730, 2004) at 50. Findings of these Reports are discussed in Kellie Toole “Self-Defence and the Reasonable Woman: Equality before the New Victorian Law” (2012) 36 MULR 250 at 276–277.
120Victorian Law Reform Commission, above n 71, at 162.
121Toole, above n 119, at 276–277.
122At 276–277.
123Family Violence Death Review Committee, above n 60, at 37; and Family Violence Death Review Committee submission at 11.
124Family Violence Death Review Committee, above n 60, at 39.
125The Family Violence Death Review Committee refers to this, at 39–42, as the “indifference of powerful institutions to the victim’s suffering”.
126At 39.
127At 39.
128Victorian Law Reform Commission, above n 71, at 168.
129Family Violence Death Review Committee, above n 60, at 37; and Victorian Law Reform Commission, above n 71, at 165.
130A 2008 New Zealand survey on individual attitudes, values and beliefs about family violence found that 67 per cent of respondents believed that a woman who is beaten by her partner just needs to leave the relationship to be safe. See McLaren, above n 87, at 14. Australian research in 2013 found nearly eight in 10 people found it hard to understand why a woman would stay in a violent relationship, with more than half agreeing women would leave a violent relationship “if they really wanted to”: VicHealth Australians’ attitudes to violence against women: Findings from the 2013 National Community Attitudes towards Violence Against Women Survey (NCAS) (P-MW-147, 2014) at 12. United States research found two-thirds of people believed that women could exit abusive relationships: Alissa Pollitz Worden and Bonnie E Carlson “Attitudes and Beliefs About Domestic Violence: Results of a Public Opinion Survey: II Beliefs About Causes” (2005) 20 Journal of Interpersonal Violence 1219 at 1238.
131Walter S DeKeseredy, McKenzie Rogness and Martin D Schwartz “Separation/divorce sexual assault: The current state of social scientific knowledge” (2004) 9 Aggression and Violent Behavior 675 at 677.
132Family Violence Death Review Committee submission at 22.
133In the United States and Canada, compared to married women, separated women are 25 times more likely to be assaulted by ex-partners and five times more likely to be murdered: Deborah K Anderson and Daniel G Saunders “Leaving an Abusive Partner: An Empirical Review of Predictors, the Process of Leaving, and Psychological Well-Being” (2003) 4 Trauma, Violence, & Abuse 163 at 179. In Australia, a quarter of intimate partner homicides (1989–2002) occurred between separated, former or divorced couples, with 84 per cent of those victims being women: Jenny Mouzos and Catherine Rushforth “Family Homicide in Australia” (2003) 255 Trends & Issues in Crime and Criminal Justice 1 at 2.
134Elisabeth McDonald “Defending Abused Women: Beginning A Critique of New Zealand Criminal Law” (1997) 27 VUWLR 673 at 680–681.
135Family Violence Death Review Committee, above n 61, at 74.
136At 74.
137See for example the Ministry of Justice’s recent discussion document: Ministry of Justice, above n 63. See also United Kingdom Home Office Strengthening the Law on Domestic Abuse Consultation – Summary of Responses (December 2014).
138Discussed in Family Violence Death Review Committee, above n 61, at 72.
139Susan B Sorenson, Manisha Joshi and Elizabeth Sivitz “A Systematic Review of the Epidemiology of Nonfatal Strangulation, a Human Rights and Health Concern” (2014) 104(11) Am J Public Health 54 at 57. Strangulation is the subject of another Law Commission Report: Strangulation: The Case for a New Offence (NZLC 138, 2016).
140Family Violence Death Review Committee, above n 61, at 72.
141Victorian Law Reform Commission, above n 71, at 161.
142Family Violence Death Review Committee, above n 61, at 72.
143At 72.
144Stark, above n 69, at 12. See also Evan Stark “Re-presenting Battered Women: Coercive Control and the Defense of Liberty” (paper presented to Violence Against Women: Complex Realities and New Issues in a Changing World, Quebec, Canada, 2012) at 7: “The primary outcome of coercive control is a condition of entrapment that can be hostage-like in the harms it inflicts on dignity, liberty, autonomy and personhood as well as to physical and psychological integrity.”
145See for example United Kingdom Home Office, above n 137. In a consultation on the proposed enactment of a new offence of domestic abuse to criminalise patterns of coercive and controlling behaviour, the Home Office received submissions on “the importance of any new offence capturing inter-familial abuse as well as intimate partner abuse” and noted, at 9, that, while some respondents considered coercive control is limited to intimate partner relationships, others had submitted it was not and that such behaviours may affect other victims, including the elderly. As enacted, the offence of “controlling or coercive behaviour in an intimate or family relationship” applies both to people in intimate personal relationships and family members who live together: Serious Crime Act 2015 (UK), s 76.
146Stark, above n 144, at 16.
147Family Violence Death Review Committee, above n 60, at 35.
148Family Violence Death Review Committee, above n 61, at 72.
149At 73.
150At 80.
151Family Violence Death Review Committee, above n 60, at 42; and Family Violence Death Review Committee submission at 13.
152Family Violence Death Review Committee, above n 60, at 80–81.
153Alcohol and drug abuse is strongly correlated with family violence in New Zealand, and research demonstrates that alcohol escalates aggressive incidents. See Social Policy Evaluation and Research Unit, above n 67, at 4. Alcohol was identified as a factor in 14 of the 24 cases we identified in which victims of family violence killed their abusers.
154Family Violence Death Review Committee, above n 60, at 45 (footnote omitted).
155Family Violence Death Review Committee, above n 61, at 49.
156Family Violence Death Review Committee, above n 60, at 42–43 (footnote omitted).
157Family Violence Death Review Committee, above n 61, at 81.
158Family Violence Death Review Committee, above n 60, at 43 (footnotes omitted).
159Ministry of Justice, above n 63, at 14.
160At 15.
161At 15.
162Family Violence Death Review Committee, above n 61, at 85.
163At 85.
164Family Violence Death Review Committee submission at 15.
165At 15.
166At 19.
167R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775 at [36].
168In relation to R v Brown see “Jail time led to p addiction, a life of crime – and a violent death” The New Zealand Herald (online ed, Auckland, 12 January 2010). In relation to R v Keefe see “Jessica Keefe not guilty of murder” (19 September 2013) Stuff.co.nz <www.stuff.co.nz>; and “Murder charge unwarranted – lawyer” (21 September 2013) Radio New Zealand < www.radionz.co.nz>. In relation to R v Tagatauli (also known as Amanda Taitapanui) see “Fatal stabbing in the leg leads to rare sentence of home detention” (21 April 2016) Stuff.co.nz <www.stuff.co.nz>.