Contents

Chapter 2
Understanding family violence

The different forms of family violence

2.5Family violence comes in many forms, including intimate partner violence, child abuse and neglect, elder abuse, violence by children towards parents, and sibling violence. Family violence homicides are, however, most common in intimate partner relationships.61 Intimate partner violence is defined as “[a]ny behaviour within an intimate relationship (including current and/or past live-in relationships or dating relationships) that causes physical, psychological or sexual harm to those in the relationship”.62

The gendered nature of intimate partner violence

2.6Historically, consideration of family violence has focused on male aggression towards women and “battered woman syndrome” developed alongside the organised women’s movement. Family violence in intimate partner relationships is a gendered phenomenon. Perpetrators of violence are usually men, and victims are usually women and children.63 In this context, it needs to be recognised that men and women kill their intimate partners for different reasons and in different ways.64
2.7Family violence does, however, occur within other intimate relationships. The FVDRC identified one case of intimate partner homicide occurring in a same-sex relationship but reports that same-sex family violence deaths are likely to be undercounted.65 Intimate partner violence in lesbian, gay, bisexual, transgender, queer and intersex relationships has received less attention in the literature,66 but there is some evidence that indicates it may be as prevalent as heterosexual violence.67 Some contend the dynamics of same-sex intimate partner violence are similar to those in heterosexual relationships,68 while others suggest they may be different in material ways.69 In any event, it is widely acknowledged that further research is required.
2.8Concepts and models that have traditionally been applied to women in the context of intimate partner relationships might be applied to other victims. Most obviously, battered woman syndrome has in some cases been reframed as “battered person syndrome”70 and/or applied to victims of all genders. The nature and effects of family violence may perhaps more helpfully be conceptualised in terms of behaviours rather than participant characteristics.
2.9It does not seem to us to be problematic to extend our consideration to the positon of victims or aggressors who are not or who are only minimally represented in the available data. We agree with the Victorian Law Reform Commission that the same legal issues arise for all victims of family violence who kill their abusers, whatever their gender and whatever their relationship with the abuser.71

Family violence in other relationshipsTop

2.10While intimate partner relationships are the most common context in which primary victims kill predominant aggressors, victims of family violence also kill abusers within other close interpersonal relationships. Of the 24 New Zealand cases we have reviewed in which victims of family violence killed abusers,72 two involved killings of male parents by male children.73 A further case that was before the High Court at the time of publication of this Report involved a female defendant, Daryl Kirk, who, at the age of 19, shot and killed her mother’s partner during a violent confrontation.74
2.11In R v Erstich, the defendant had been subjected by his father to abuse that the Crown accepted amounted to “not much short of a reign of terror”.75 When he was 14 years old, after a decade of being subjected to physical and psychological abuse and witnessing violence towards his mother and brothers, the defendant killed his father by shooting him at close range. The killing was premeditated. Although he was charged with murder, he was convicted of manslaughter. At trial, he claimed the killing was provoked.76 He ultimately received a suspended sentence of two years’ imprisonment.77
2.12In R v Raivaru, the defendant was 15 years old when he stabbed his step-father to death with a carving knife in circumstances the sentencing Judge considered amounted to “serious provocation”.78 Before the killing, the stepfather had assaulted and verbally abused the defendant and his mother, and the Judge accepted the homicide arose from the defendant’s desire to protect his mother, which “regrettably, resulted in disproportionate use of force with a weapon”.79 The defendant pleaded guilty to manslaughter and was sentenced to four years’ imprisonment.
2.13Erstich and Raivaru are cases of homicide by children, not intimate partners, but both involved violence by the deceased against other family members, including the defendants’ mothers. The FVDRC notes that intimate partner violence and child abuse and neglect are “entangled” forms of abuse and that:80

It is well known that exposure to [intimate partner violence] is a form of child abuse and that there is a high rate of co-occurrence between intimate partner violence and the physical abuse of children. Many children affected by family violence are living with what Edleson et al have described as the “double whammy” – the co-occurrence of being exposed to family violence in relation to other family members and being a direct victim of child maltreatment. Children are also injured in the “crossfire” of a violent assault or attack against the adult primary victim and can be used as “weapons” by abusive (ex-) partners in the context of [intimate partner violence].

2.14The FVDRC notes, in addition, that intimate partner violence and child abuse and neglect are “not necessarily separate co-existing forms of violence” and that their co-occurrence may “only [make] sense if you understand family violence as a pattern of coercive control and that actions directed at one individual are not necessarily designed to impact only on that individual”.81 Other forms of family violence (for example, elder abuse or violence among siblings) can be similarly “entangled”.82
61Among the 126 deaths the Family Violence Death Review Committee reviewed for its Fourth Annual Report, 63 (50 per cent) were intimate partner deaths, 37 (29 per cent) were child abuse and neglect deaths, and 26 (13 per cent) were intrafamilial deaths. See Family Violence Death Review Committee Fourth Annual Report: January 2013 to December 2013 (Health Quality & Safety Commission, June 2014) at 32.
62At 14. The Family Violence Death Review Committee defines intimate partner violence as including acts of physical aggression, psychological abuse, forced intercourse and other forms of sexual coercion, and various controlling behaviours. See also Etienne G Krug and others (eds) World report on violence and health (World Health Organisation, 2002).
63At 41. In a small number of cases, however, men may be victims of intimate partner violence. One of the 55 intimate partner deaths considered by the Family Violence Death Review Committee in its Fourth Report about which relationship history information was available involved a male primary victim and a female predominant aggressor. In its recent discussion document on New Zealand’s legislative response to family violence, the Ministry of Justice noted men’s experience of domestic violence is often different to that of women. Intimate partner violence perpetrated by women against men is much less severe, and men are more likely to experience other forms of family violence, like sibling violence. See Ministry of Justice Strengthening New Zealand’s legislative response to family violence: A public discussion document (Wellington, August 2015) at 14.
64The different ways in which men and women commit homicide in the context of intimate relationships is discussed in detail in Chapter 6.
65Family Violence Death Review Committee, above n 61, at 39.
66For a helpful and recent discussion from the Australian Institute of Criminology, see Alexandra Gannoni and Tracy Cussen “Same-sex intimate partner homicide in Australia” (2014) 469 Trends & Issues in Crime and Criminal Justice 1. See also, for example, “Breaking the taboo of domestic violence in LGBTI relationships” (30 May 2015) Stuff.co.nz <www.stuff.co.nz>; Ally Fogg “LGBT victims of domestic abuse are rarely catered for – or acknowledged” The Guardian (online ed, London, 14 March 2014); Maya Shwayder “A Same-Sex Domestic Violence Epidemic Is Silent” The Atlantic (online ed, Washington DC, 5 November 2013); and Joanna Jolly “Is violence more common in same-sex relationships?” (18 November 2014) BBC News <www.bbc.com>.
67See for example Social Policy Evaluation and Research Unit (Superu) Reducing the impact of alcohol on family violence (April 2015) at 2. See also United States Centers for Disease Control and Prevention “CDC releases data on interpersonal and sexual violence by sexual orientation” (press release, 25 January 2013).
68Leonard D Pertnoy “Same Violence, Same Sex, Different Standard: An Examination of Same-Sex Domestic Violence and the Use of Expert Testimony on Battered Woman’s Syndrome in Same-Sex Domestic Violence Cases” (2012) 24 St Thomas L Rev 544 at 545. See also Social Policy Evaluation and Research Unit (Superu), above n 67.
69Gannoni and Cussen, above n 66. See also Evan Stark Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press, Oxford, 2007) at 397.
70In New Zealand, see RR v KR [2010] NZFLR 809 (HC). In Australia, see R v Monks [2011] VSC 626.
71Victorian Law Reform Commission Defences to Homicide: Final Report (2004) at 61.
72See Chapter 3 for a discussion of the cases reviewed.
73R v Erstich (2002) 19 CRNZ 419 (CA); and R v Raivaru HC Rotorua CRI-2004-077-1667, 5 August 2005. Both cases involved the partial defence of provocation, before its repeal in 2009. Provocation, and its repeal, is discussed in detail in Chapter 10 of this Report.
74Daryl Kirk was charged with murder and claimed self-defence. Shortly before publication of this Report the jury returned a verdict of manslaughter. She has yet to be sentenced.
75R v Erstich, above n 73, at [3].
76The Court of Appeal recorded at [3] the verdict “may have reflected acceptance of lack of intent to murder, but was more likely on the facts of the case to have entailed the jury’s acceptance of the partial defence of provocation”.
77The sentence of imprisonment was imposed on appeal. The defendant was, in the first instance, sentenced to two years’ supervision.
78R v Raivaru, above n 73, at [8].
79At [19].
80Family Violence Death Review Committee, above n 61, at 76 (footnote omitted).
81At 76–77.
82At 64–65.