Contents

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

The role of gender in the development of self-defence

6.4In New Zealand, the overwhelming majority of violent offenders are men.396 This is typical across the world.397 As a result, the law of self-defence has developed primarily in response to male violence and in the context of male standards of reasonableness. However, there is a substantial body of literature and empirical evidence that points to differences between who, why and how men and women kill and use defensive force.

Who do men and women kill?

6.5Men are more likely to kill strangers or acquaintances, while women are most likely to kill those with whom they have an intimate relationship.398 However, because female homicide offenders are proportionately small in number, intimate partner homicide is still overwhelmingly characterised by a male killing a female partner (or ex-partner). In New Zealand, the Family Violence Death Review Committee (FVDRC) reports that three-quarters of intimate partner homicide offenders are men and almost three-quarters of homicide victims are women.399 These figures mirror recent Australian data.400

Why do men and women kill?Top

6.6Research shows that when men kill in the context of intimate relationships, they tend to do so out of jealously or a desire for control.401 Men who kill in this context tend to also have histories of aggression. The FVDRC, in its submission on our Issues Paper,402 reported that 79 per cent of intimate partner homicides between 2009 and 2014 with a known abuse history were committed by a male predominant/suspected predominant aggressor.403 Women, by contrast, tend to kill intimate partners in response to long-term family violence.404 The FVDRC reported that 13 of the 15 women who killed an intimate partner between 2009 and 2014 with a known abuse history were primary/suspected primary victims of family violence.405 Two commentators explain the differences in why men and women kill as follows:406

Male killing is about power and control. Women killing abusers is about avoiding power and control … Women do not often kill from anger, while anger fuels many male killings.

How do men and women kill?Top

6.7When men kill an intimate partner, it is most commonly by “overkill”, which the FVDRC describes as “the use of violence far beyond what would be necessary to cause death and encompasses multiple stabbings and/or multiple forms of violence”.407 The way in which a woman kills is often dictated by her physical strength relative to the deceased.408 A woman may not be able to effectively defend herself with her bare hands in a direct confrontation with a bigger, stronger male partner, and so when women kill intimate partners, a weapon is almost always used, and it is most often a kitchen knife used to inflict one or sometimes two stab wounds.409

Gendered differences in claims of self-defenceTop

6.8Because of the differences in who men and women tend to kill, self-defence is claimed in different scenarios. When men kill in self-defence, they normally do so in the context of a spontaneous encounter with a male stranger or acquaintance of relatively equal strength.410 Women are more likely to claim self-defence in the context of an intimate partner relationship. Most often, they will be defending themselves against a violent assault, but sometimes they may kill in a non-confrontational situation, while the abuser’s guard is down, rather than waiting to match their strength against their abuser in a direct confrontation.411 As was observed by then Victorian Attorney-General Rob Hulls:412

[W]omen who kill in response to protracted campaigns of violence against their partners know only too well that any attempt to defend themselves when facing an immediate threat frequently leads to an escalation of the violence against them. Women in this situation are simply not capable of defending themselves then and there, whether because they lack the physical strength, because they are attempting to diffuse the assault or because they are trying to protect children who are, tragically, so often present when this kind of violence occurs.

6.9Not all women who respond to abuse with fatal force will be acting defensively,413 but the explanation for their conduct is nonetheless likely to be the psychological stress and trauma of intimate partner violence.414 We also note that sometimes women may be motivated by both fear and anger, and it is not always appropriate to try to separate out the two emotions.415
6.10This is borne out in empirical studies.416 The Victorian Law Reform Commission (VLRC) undertook a study of homicide prosecutions in that State between 1997 and 2001.417 They identified that self-defence was far more commonly claimed by men. It was most often raised in the context of a spontaneous encounter (such as a pub brawl), and it was most likely to be successful when raised in that context. In contrast, while women were most likely to kill in the context of sexual intimacy and in response to alleged violence perpetrated by the deceased, only two women were able to raise self-defence, and neither was successful, both being convicted of murder.418 The VLRC considered that this demonstrated the exclusion of women from the use of self-defence, in that “self-defence is seen to involve a single, isolated attack between two men of approximately equal strength, who are either strangers or acquaintances”.419
6.11The gendered differences in who, why and how men and women kill mean that the actions of women may not “conform to established patterns of male violence”.420 The failure to equally accommodate the ways women use lethal force to defend themselves or another constitutes a gender bias in the operation of the law. As one English commentator notes:421

The relative scarcity of female killers has resulted in a paradigmatically male ideal model and this, together with the incompatibility of aggressive force with stereotypical femininity, means that the apparently gender-neutral concept of reasonableness is actually weighted against the female defendant.

6.12Because the overwhelming majority of victims of family violence who kill their abusers are women, the operation of any gender bias in the law is of central importance in this review. We recognise, however, that men can also be victims of family violence and can kill abusive partners or parents.422 We also recognise that family violence can be perpetrated in same-sex relationships. We agree with the VLRC that issues that arise for female primary victims who kill their abusive partners are also likely to arise for other victims of family violence who kill abusers, particularly when their relationship is marked by the characteristics of coercion and control discussed in Chapter 2.423
396Eighty-four per cent of offenders convicted of homicide and related offences in the past 10 years were male: Statistics NZ “Adults convicted in court by sentence type - most serious offence fiscal year” <nzdotstat.stats.govt.nz>. Statistics New Zealand data also shows that for the 12 months ending October 2015, men committed 82 per cent of homicide and related offences, 74 per cent of acts intended to cause injury, 96 per cent of sexual assaults and related offences, and 79 per cent of abductions, harassment and other related offences against a person: Statistics NZ “Recorded crime offenders statistics – unique offenders” <nzdotstat.stats.govt.nz>.
397Victorian Law Reform Commission Defences to Homicide: Options Paper (2003) at xiv; Toole, above n 394, at 255. However, some suggest that women account for as little as 10 per cent of homicide offending across Australia, Canada, England and the United States: Kathryn Whitely “Women as Victims and Offenders: Incarcerated for Murder in the Australian Criminal Justice System” (Thesis, Queensland University of Technology, 2012) at 12.
398Whitely, above n 397; Quick and Wells, above n 394, at 524; and Vickie Jensen Why Women Kill (Lynne Rienner Publishers, Boulder, 2001).
399For the period between 2009 and 2012: Family Violence Death Review Committee Fourth Annual Report: January 2013 to December 2013 (Health Quality & Safety Commission, June 2014) at 39.
400Tracy Cussen and Willow Bryant “Domestic/family homicide in Australia” (2015) 38 Research in Practice 1 at 2.
401Douglas, above n 394, at 368; and Quick and Wells, above n 394, at 524.
402Law Commission Victims of Family Violence Who Commit Homicide (NZLC IP39, 2015).
403Family Violence Death Review Committee submission at 9. The terms “predominant aggressor” and “primary victim” are discussed in Chapter 1 and are defined in the Glossary at Appendix D of this Report.
404Family Violence Death Review Committee, above n 399, at 40–41; Danielle Tyson and others “The Effects of the 2005 Reforms on Legal Responses to Women Who Kill Intimate Partners” in Kate Fitz-Gibbon and Arie Freiberg (eds) Homicide Law Reform in Victoria: Retrospect and Prospects (The Federation Press, Leichhardt, 2015) 79; Crofts and Tyson, above n 394, at 879; Douglas, above n 394, at 367; Quick and Wells, above n 394, at 524; Victorian Law Reform Commission, above n 395, at 61; Victorian Law Reform Commission, above n 397, at xiv; and Bradfield, above n 394, at 71.
405Family Violence Death Review Committee submission at 9.
406Quick and Wells, above n 394, at 524.
407Family Violence Death Review Committee, above n 399, at 47. In its submission on the Issues Paper the Family Violence Death Review Committee reported that overkill was the method of killing in 36 of the 85 identified intimate partner homicides for the period 2009–2014. All offenders who used overkill were male: Family Violence Death Review Committee submission at 19.
408Toole, above n 394, at 256–257; and Douglas, above n 394, at 368.
409In its submission on the Issues Paper the Family Violence Death Review Committee reported that in 11 out of 12 cases where a female primary victim killed a male predominant aggressor, a kitchen knife or implement was used: Family Violence Death Review Committee submission at 19. All of those homicides took place at the family home, half of them in the kitchen. In our case review, we identified one or two stab wounds as the cause of death in 17 out of 24 cases since 2001. See also Family Violence Death Review Committee, above n 399, at 47; McKenzie, Kirkwood and Tyson, above n 394; and Toole, above n 394, at 256–257.
410Toole, above n 394, at 256; and Victorian Law Reform Commission, above n 395, at 61.
411Tasmania Law Reform Institute Review of the Law Relating to Self-defence (Final Report No 20, 2015) at 65; Kim, above n 394, at 6; McKenzie, Kirkwood and Tyson, above n 394; Toole, above n 394, at 256; Victorian Law Reform Commission, above n 395, at 62; and Law Commission Battered Defendants (NZLC PP41, 2000) at 12–13.
412At the launch of the Crimes (Homicide) Act 2005 (Vic) in October 2005. Victorian Department of Justice Defensive homicide: Review of the offence of defensive homicide: Discussion paper (August 2010) at 30.
413Family Violence Death Review Committee, above n 399, at 119.
414Whitely, above n 394; Fiona Leverick Killing in Self-defence (Oxford University Press, Oxford, 2006); Jensen, above n 398; and Melanie Randall “Domestic Violence and the Construction of ‘Ideal Victims’: Assaulted Women’s ‘Image Problems’ in Law” (2004) 23 St Louis U Pub L Rev 107 at 119.
415See also paragraph [3.40] above. Law Commission of England and Wales Partial Defences to Murder (Law Com No 290, August 2004) at 53. The same point has been made elsewhere. See for example Victorian Law Reform Commission, above n 395, at 90; and Brenda M Baker “Provocation as a Defence for Abused Women Who Kill” (1998) 11 Can J L and Jurisprudence 193 at 196. Baker argues that “it is hard to credit the idea that women are always driven solely be fear or terror when they kill or risk such killing, although this is a dominant emotion in many homicides and one that is almost always operative to some degree and so almost always has some explanatory relevance”.
416A number of empirical studies have been undertaken in Australia in particular. See discussion in Tyson and others, above n 404; Toole, above n 394; Victorian Law Reform Commission, above n 397; Bradfield, above n 394; and Tarrant, above n 394.
417Victorian Law Reform Commission, above n 397.
418At 110.
419At 110.
420Toole, above n 394, at 257.
421Aileen McColgan “In Defence of Battered Women Who Kill” (1993) 13 Oxford Journal of Legal Studies 508 at 515, discussed in Catherine Elliot “A Comparative Analysis of English and French Defences to Demonstrate the Limitations of the Concept of Loss of Control” in Alan Reed and Michael Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, Farnham, 2011) 231 at 233.
422We are aware of at least four cases in New Zealand in which the defendant was a son or stepson of the deceased and killed in response to a long history of abuse from the deceased, although none involved a claim of self-defence: R v Raivaru HC Rotorua CRI-2004-077-1667, 5 August 2005; R v Erstich (2002) 19 CRNZ 419 (CA); R v Powell CA393/30, 4 June 1991; and R v Gillatt (1989) 5 CRNZ 1 (CA). We are also aware of one case in Victoria where the defendant was the male de facto partner of the female deceased and successfully claimed self-defence: DPP v Bracken [2014] VSC 96.
423Victorian Law Reform Commission, above n 395, at 61.