Untitled Document

SUBMISSIONS TO THE LAW COMMISSION ON

PRELIMINARY PAPER 41,

BATTERED DEFENDANTS: VICTIMS OF DOMESTIC VIOLENCE WHO OFFEND

Introduction

The Women’s Consultative Group of the New Zealand Law Society (the WCG) welcomes the opportunity to comment on this paper and commends the Law Commission for the detailed way it has commenced the discussion on what the WCG regards as an important albeit difficult area of the law, and one in need of reform.

To a considerable extent the WCG agrees with the responses by the NZLS Criminal Law Committee (the CLC) to the specific questions raised by the Commission. For those specific questions that have not been answered, the WCG concurs with the CLC. It should be noted that these comments are from the WCG only and are independent of the NZLS Board.

The format used follows that of the questions in the Report.

General comments

At the heart of the current law on domestic violence in New Zealand, as embodied in the Domestic Violence Act 1995, lies a very simple concept: domestic violence is about the use of power by men to control their women partners. That Act (enacted after a long period of review and public consultation) establishes a clear framework for the analysis of domestic violence based on a variety of international and national human rights instruments including the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.

It is somewhat surprising, therefore, to find a Law Commission discussion paper on domestic violence that appears to contain no reference to that Act or to the clear policy framework that already exists for the construction of domestic violence laws in New Zealand. One of the key criticisms of Busch and others has been the inadequate link of civil and criminal laws dealing with domestic violence (see report referred to p69 of discussion paper).

In addition, the paper contains no definition of domestic violence nor any clear articulation of the framework within which it is properly analysed. Namely, the power and control analysis developed in Duluth, Minnesota. The analysis is most commonly depicted in the Power and Control Wheel, which illustrates the factors that characterise violent relationships and illustrates how these factors (or spokes of the wheel) might be demonstrated by behaviour of the abuser. An abuser seeks to maintain power and control through a variety of tactics, many of which can be identified as psychological violence. Physical and sexual violence at the rim of the wheel keep other tactics in place and reinforce the system which keeps an abuser in control of the relationship.

This analysis has been adopted and used worldwide by women’s refuges’ services, the police, judiciary, legal academics and many others. For example, the power and control analysis is currently used by the New Zealand Police when investigating criminal offending relating to domestic violence (see for example the New Zealand Police Family Violence Policy and the Community Education Kit prepared by the then Family Violence Unit, Department of Social Welfare). The discussion paper also does not appear to cite any of the research or literature of New Zealand’s leading expert service agency on domestic violence, the National Collective of Independent Women’s Refuges.

Many of the proposals in the discussion paper have considerable merit and have obviously been given a great deal of thought. However, these basic legal framework omissions strongly suggest that the proposals for change are unlikely to result "in the realities of a battering relationship [being] presented in a way most likely to assist fact-finders" (see para 24, p 8 of the paper). On the contrary, these may act to perpetuate existing difficulties.

Chapter 3 – Self-defence

1. Whenever the evidence establishes a reasonable possibility that a defendant intended to act defensively, should questions about the reasonableness of the force used by the defendant always be left to the jury?

Like the CLC the WCG supports the proposition that, whenever there is an evidential basis to believe that a defendant acted in "defence" of herself, the question of the 'reasonableness of the force used' should be left to the jury.

In terms of evidence, we agree also that there should be provision in the proposed Evidence Code for the admission of relevant expert evidence about the causes and effects of domestic violence (see paras 28-30). In particular, the proposals for the Code should be amended to allow expert testimony of the effects of domestic violence on the defendant, including the physical, emotional, or mental effects upon the beliefs, perceptions or behaviour of victims of domestic violence. Such an amendment could make special defences largely unnecessary. For example, in self-defence cases, the use of expert testimony would assist the jury to determine:

whether the defendant actually believed it was necessary to kill or otherwise act in self defence;
whether her belief was reasonable;
whether her testimony is credible.

In these or other cases such expert evidence can be used to explain to juries:

what domestic violence is,
the basic patterns that occur in domestic violence cases,
how these patterns are explained (using the power and control analysis) and how prior incidents of violence fit within that analysis,
why a victim of domestic violence might recant her story or subsequently refuse to testify,
why she may not leave the relationship,
why she doesn’t listen to the Police or believe they can help her,
why children may not be protected,
how apparent inconsistencies in her testimony can be reconciled.

This evidence can be used to put before the jury (and the judge) the "realities of battering relationships" from experts who actually provide day-to-day services to women experiencing domestic violence. With this evidence, myths and stereotypes about battering and its effects on women are less likely intrude, with the result that any gender bias can be directly (rather than indirectly) countered. As the discussion paper suggests (see para 30), these experts are not generally psychologists or psychiatrists, but service workers including social workers, refuge advocates, and others.

2. Should it be possible for a defendant to be acquitted on the basis that he or she acted in self-defence where the danger sought to be avoided was inevitable but not imminent?

The WCG agrees with the CLC on this issue. In particular we believe that the concept of inevitability more appropriately reflects the reality of victims of domestic violence rather than the requirement for imminence of fatal harm. We also endorse the concept of lack of reasonable alternatives that we believe can be incorporated into the inevitability claim.

However, while the proposed inevitability test has merit, it does so only if it is grounded in a power and control analysis that makes it clear why a woman may consider an attack is inevitable. Seen in this light, for example, Wang’s actions would not have resulted in a trial judge refusing to allow the jury to consider self-defence. Under the evidence code proposal, the judge could have allowed evidence as to her subjective belief of imminent (or inevitable) harm and whether that belief was reasonable. Evidence could also have been adduced about the reasonableness of her belief of lack of alternatives, the proportionality of the defensive action, and the seriousness of the perceived attack.

In addition, the power and control analysis helps to explain when and why a woman may attack in self-defence (such as sometime after an assault, when the power imbalance can be altered) compared to a man (who may attack in self-defence spontaneously based on a belief of equal or greater physical power). The analysis also explains why a woman may use a weapon in response to a physical assault: a weapon acts to equalise the power imbalance. Again, any gender bias about women’s use of force can be directly addressed.

Chapter 4 – Excessive self-defence

3. Should a new partial defence of excessive self-defence be introduced in New Zealand?

The WCG supports the introduction of such a defence and, like the CLC, favours the draft proposed by the Criminal Law Revision Committee of England and Wales. Having said that we are unclear how this defence will work in practice and suggest that the Commission look further at the experiences of other jurisdictions. Essentially the question must be whether in practice such a defence will work for battered women who kill their abusers, or whether it is more likely to add to the defence armoury of the violent male offender.

Chapter 5 – A new defence for battered defendants

4. Should a special defence for victims of domestic violence who kill or assault their abusers be enacted?

We are not in favour of the introduction of a special defence for victims of domestic violence who kill their abusers. We agree with the CLC that reform in this area can be better achieved by extending the defence of self defence, introducing the partial defence of excessive self defence and, possibly introducing the defence of diminished responsibility.

In particular, we agree that it is not helpful to attempt to define the term "battered women’s syndrome" or in fact to even use it. This term is increasingly discredited in the United States (by both the US Department of Justice and leading feminist legal scholars) and in other countries for the following reasons:

It implies there is one syndrome that all women fit.
It has pathological connotations which suggest that battered women suffer from some sort of sickness.
Expert testimony on domestic violence refers to more than women’s psychological reactions to violence.
It focuses attention on the battered woman rather than on the batterer’s coercive and controlling behaviour.
It creates an image of battered women as suffering victims rather than as active survivors.

5. If so, which of the defences discussed in this section do you favour, or should the defence take another form?

See question 4 above.

Chapter 6 – Provocation

6. Should the defence of provocation be abolished:

(a) if the mandatory life sentence for murder is replaced with a sentencing discretion?

The WCG concurs with the views of the CLC on this issue. While acknowledging that, on occasion, the availability of this defence may lead to conclusions that seem unfair or even repugnant to justice (R v Tepu is an example), we believe that its abolition will leave significant and inappropriate gaps in the defence armoury, not all of which would be met by the introduction of, for example, the defence of diminished responsibility. Perhaps a more compelling reason from the WCG's point of view is that the abolition of the defence of provocation should be accompanied by a sentencing discretion. On this issue, we are not in favour of the abolition of mandatory life sentences for murder.

(b) if the mandatory life sentence is retained?

No. See question 6(a).

Chapter 7 – Diminished responsibility

7. Should New Zealand adopt a partial defence of diminished responsibility?

While accepting that the arguments advanced by the CLC in support of the introduction of this partial defence are sensible, the WCG has some reservations about such an introduction.

In principle - and accepting that each case will inevitably be unique - we tend to the view that, in general terms, the victims of domestic violence who resort to killing their assailants are not suffering an 'abnormality of mind' but are individuals who see a fatal battering as inevitable and that there are no reasonable alternatives to avoiding that battering but the death of the perpetrator.

Further, we are concerned that the application of this defence in practice will inevitably invite the introduction of medical evidence to effectively create the abnormality of mind. In other words, we see this defence at risk of becoming artificial and, as with the battered women syndrome to date, a question of 'ticking the boxes' to arrive at the conclusion rather than inviting experts and juries to look at all the circumstances of a particular case.

Nor do we overlook the experience in the United Kingdom where one study found that 38% of diminished responsibility pleas were wife killings arising from jealousy and possessiveness and not from any psychosis on the part of the offender. (see page 40 of the Report)

Having said this, the WCG concedes that factual scenarios are unlimited in the area of criminal trials and that this partial defence may have a place in the criminal law. If it is introduced we agree that the NSW Law Commission proposal is the preferred draft version.

8. If the answer to question 7 is yes, which version of diminished responsibility do you prefer?

The views of the WCG are diverse on this significant issue. However we tend to the collective view that, within the scope of this paper, mandatory life sentences should be retained. We consider this to be a complex and difficult issue and perhaps one that would benefit from a more specific and detailed approach by the Law Commission. Irrespective of whether the mandatory sentence for murder is abolished, however, we concur with the CLC in the retention of the partial defences. In our view, issues of culpability should be determined separately before consideration of sentence and by

the appropriate finders of fact. If such issues are left to the judge, then s/he could be in the unenviable position of having to impose sentence on the subjective, selective and often uncontested submissions and evidence adduced by counsel.

Ema Aitken and Mary O’Dwyer
Co-conveners
Women’s Consultative Group

8 November 2000