Chapter 6
Self-defence and family violence – is there a problem?

Submitters’ views on whether there is a problem

6.77Almost without exception, submitters considered that a victim of family violence should be entitled to rely on self-defence even if the harm sought to be avoided was not imminent or the fatal force was not strictly proportionate to the threatened harm.

6.78The FVDRC emphasised the need to assess the actions of victims of family violence in the context of the threat they were experiencing because of their ongoing relationship with a violent perpetrator, not just because of what was happening on any one particular occasion. That assessment must be informed by an understanding of family violence as a form of entrapment. The FVDRC considers legislative reform is necessary to address the decision in Wang. It also notes the decision in Richardson (discussed at paragraph [6.32] above), which it says has the potential to present a further legal barrier for a victim of family violence who is responding to an omnipresent threat that has the potential to crystallise at any point in time and that the Police are unable to defuse.

6.79The Auckland Coalition for the Safety of Women and Children said that, all too often, the assessment of what has occurred when the defendant is responding to family violence is “heavily influenced by male gendered normative notions of the options available to women victims of domestic violence”. They note a number of factors that must be considered relevant to any consideration of self-defence in this context, such as whether the defendant had access to a telephone, whether she could speak English, whether she knew what agencies to contact for help and what help she received in the past if she did make contact, the size of the defendant relative to the deceased, whether the deceased had invaded the home of the defendant and whether the defendant had been raped by the deceased. The idea that the use of a weapon means the use of force was disproportionate is, the Coalition says, highly gendered when a woman is unable to defend herself effectively in any other way.

6.80Members of the relevant committees of the New Zealand Law Society543 were divided on this issue. Some noted a major concern with the concepts of imminence and proportionality and considered that the approach in Wang needs to be changed. They observed that imminence can act as a “roadblock” for defendants because it requires a defendant who has suffered cumulative abuse over a lengthy period of time to artificially nominate a single point of confrontation and wrongly assumes threats of violence are always avoidable and that a delayed threat will always allow for non-violent intervention. One member also noted that the concept of imminence can be particularly problematic for youth offenders and must be balanced against their ability to foresee consequences when they have themselves experienced abuse throughout their lives. Other members, however, were equally concerned that these conclusions were based on unconfirmed assumptions about jury behaviour and that, while self-defence is historical, and applies mostly to male violence, this did not necessarily lead to the conclusion that the existing law is inadequate for victims of family violence. We note, however, that our previous discussion focuses not on jury verdicts for which reasons are unknown but on authoritative statements of the law by the higher courts.

6.81The Criminal Bar Association and the Public Defence Service also considered that section 48 should be amended to remove any requirement for imminence or proportionality where self-defence in the context of family violence is in issue. The Public Defence Service noted, however, that proportionality should not be quite as significant an impediment as imminence, because proportionality is assessed in the circumstances as the defendant believes them to be, which allows the defendant’s account of a history of physical disadvantage vis-à-vis the deceased to be introduced. They also noted that proportionality ties in with the need to recognise that imminent harm is not a requirement for use of force to be reasonable, in light of the fact that, due to disparity in size and strength, a pre-emptive strike may be justified. An academic also noted that proportionality should not be interpreted to permit disproportionate force in every case but rather that the concept of proportionality ought to be interpreted in light of the context that force is used, including not only on the threat of harm but also the respective sizes of the parties and the history of abuse between the parties.

6.82Some submitters noted that, while they agreed that imminence and proportionality should not be requirements, it should still be open to the court to reject a claim of self-defence because the harm was not imminent or proportionate where those questions are central to the assessment of reasonableness. The few submitters that took a contrary view expressed concern that the sanctity of life may be diminished or that undeserving defendants might exploit any change in the law.

543The Criminal Law Committee, Youth Justice Committee and Family Law Section.