Contents

Chapter 8
The conceptual framework for reduced culpability

Introduction

8.1In Chapter 3, we introduced some aspects of the law of homicide and the key features of the 24 New Zealand cases we have identified in which victims of family violence have been prosecuted for killing their abusers since 2001. In Part 2 we examined how the law of self-defence applies to these defendants. Self-defence is a complete defence to a charge of murder or manslaughter. A person who successfully defends a homicide charge on grounds of self-defence will be acquitted.

8.2In this part, we put self-defence to one side and turn to consider cases where a homicide cannot be justified but the defendant can point to circumstances that reduce their culpability. Building on our introductory discussion of homicide law in Chapter 3, we consider how the law deals with people who commit homicide in extenuating or mitigating circumstances:

The main mechanisms: charge and sentence

8.3There are two principal means by which reduced culpability may be recognised in homicide cases:

8.4As we noted in the Issues Paper, over the past 15 years there has been significant law reform activity in New Zealand and overseas that has addressed victims of family violence who commit homicide and the role of charging, partial defences and sentencing in recognising reduced culpability. It is apparent from this body of work that there is a range of ways reduced culpability can be taken into account. A great deal turns on the circumstances of and prevailing attitudes in individual jurisdictions and their wider homicide law.671
670Sentencing and Parole Reform Act 2010. We consider the implications of the three strikes law for victims of family violence who commit homicide in Chapter 11.
671See discussion at paragraph [10.36] below, and the footnotes therein.