Contents

Summary

A change to the law of self-defence

20The central inquiry of Part 2 of this Report is whether the law of self-defence in section 48 of the Crimes Act accommodates the circumstances of victims of family violence who kill their abusers. Self-defence is often claimed in this context, but is not usually successful.

21It should be noted that section 48 applies to all occasions when recourse is made to self-defence; the section is not limited to homicide. It states:

Every one is justified in using, in defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.

22The problems encountered by victims of family violence who kill their abusers in claiming self-defence has been the focus of much academic comment and law reform activity in New Zealand and overseas. It has, as one commentator puts it, become “trite” to point out that defences to murder do not equitably accommodate the circumstances in which victims of family violence, typically women, tend to kill their abusers.12

23The inequity is said to arise because the law of self-defence was developed primarily in response to the “stereotypical” scenario of a one-off violent confrontation between two male strangers of relatively equal strength. Therefore, the immediacy of the threat and the proportionality of the response have emerged as central concepts. However, these concepts can fail to accommodate the very different experiences of women, who, the research tells us, typically claim self-defence in the context of ongoing intimate partner violence. Due to physical disparities, women in such circumstances will typically use a weapon to defend themselves against a stronger male aggressor. Some women will respond with considerable force to an apparently minor assault, because the real threat is one of an ongoing nature. Conversely, other women may not respond immediately when attacked, but will rather wait for a time when their response is more likely to be effective. These realities tend to preclude any claim of self-defence from being successful.

24Section 48 has also been the subject of much judicial inquiry. The aspect of self-defence that is said to be of greatest concern for victims of family violence is the requirement for a defendant to be responding to an immediate or imminent threat with no alternatives available. This requirement was confirmed by the Court of Appeal in the case of R v Wang,13 in which the defendant had stabbed and killed her abusive partner when he was in a drunken stupor. He had, earlier that evening, threatened to kill the defendant and her sister unless the defendant’s family in China sent him money. This decision has been applied by the Court of Appeal subsequently, although not in the context of family violence.14
25The requirement for an imminent threat in claims of self-defence requires the judge and jury to focus on danger that is close at hand, and can limit the inquiry to the discrete incident of violence or threat immediately preceding the defendant’s use of force. This is difficult to reconcile with contemporary understandings of family violence. More often than not there is a cumulative pattern of harmful behaviour, rather than any one violent incident. Tactics of coercion and control can mean there is a constant and ongoing threat. Accordingly, the danger faced by the victim of family violence is not from one isolated attack, or even a series of attacks, but from an ongoing life of abuse and fear.15

26Despite this, the law as it stands means that unless the victim of family violence is responding to an imminent threat, self-defence may not be available. The Commission considers that imminence should not be a strict requirement where a victim of family violence claims self-defence. The focus should instead be on whether, in the words of section 48, the use of force was, in all the circumstances as the defendant believed them to be, “reasonable”.

27The Commission considered three options to substantively reform section 48. The first option was to introduce a provision that would clarify that self-defence is available even if the threat is not imminent, with further consideration required as to whether such a clarification should be limited to the family violence context. The second would allow self-defence if the threat was inevitable. The third option would introduce a new defence specifically applicable for victims of family violence who kill their abusers.

28The Commission adopts the first option and recommends that a new provision be introduced into the Crimes Act 1961 to clarify that, where a person is responding to family violence, section 48 may apply even if that person is responding to a threat that is not imminent, provided that the defendant believed their actions to be necessary, and the response was otherwise reasonable. This would apply where a victim of intimate partner violence kills their abusive partner, as well as in other family violence contexts, such as where a person kills a parent or partner of their parent in response to family violence. To avoid the unintended consequence of violent offenders being able to take advantage of the change of law, this amendment is only made available to victims of family violence. It applies in all circumstances where self-defence is relevant and would not be limited to charges of homicide.

29Our review of section 48 found other issues that can also make it difficult in cases of family violence for a defendant to run a successful plea of not guilty on the basis of self-defence. In particular, the traditional focus on the immediate circumstances of the alleged offending means a jury is less likely to hear evidence on the history of the relationship, or if the jury does hear such evidence, it may only be for the limited purpose of understanding the circumstances of the immediate event. Such evidence may not be sufficient to enable a jury to gain a proper understanding of all of the circumstances of the alleged offending. We therefore make a recommendation to identify in legislation the full range of evidence of prior family violence and expert evidence that may be relevant to a jury’s assessment of whether a defendant who is a victim of family violence was impelled to act in the way they did. Expert evidence is likely to assist by explaining the social context of the homicide rather than by focusing on the outdated and much criticised battered woman syndrome.

RECOMMENDATIONS

12Julia Tolmie “Battered Defendants and the Criminal Defences to Murder – Lessons from Overseas” (2002) 10 Wai L Rev 91 at 91.
13R v Wang, above n 2.
14Afamasaga v R [2015] NZCA 615. See also the observations of the Supreme Court in declining leave to appeal in Vincent v R [2016] NZSC 15.
15Stella Tarrant “Something is Pushing Them to the Side of Their Own Lives: A Feminist Critique of Law and Laws” (1990) 20 UWAL Rev 573 at 598.