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. This is typical across the world. 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. 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. These figures mirror recent Australian data.
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. Men who kill in this context tend to also have histories of aggression. The FVDRC, in its submission on our Issues Paper, 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. Women, by contrast, tend to kill intimate partners in response to long-term family violence. 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. Two commentators explain the differences in why men and women kill as follows:
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”. The way in which a woman kills is often dictated by her physical strength relative to the deceased. 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.
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. 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. As was observed by then Victorian Attorney-General Rob Hulls:
[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, but the explanation for their conduct is nonetheless likely to be the psychological stress and trauma of intimate partner violence. 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.
6.10This is borne out in empirical studies. The Victorian Law Reform Commission (VLRC) undertook a study of homicide prosecutions in that State between 1997 and 2001. 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. 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”.
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”. 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:
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. 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.