- Women for Justice for Women Trust is a Christchurch (N.Z) based charitable Trust which, through its Women's Justice Service provides women with free legal information, education and support and carries out needs-based research and lobbying aimed at positive change for women.
- This was put before the English Parliament by the Rights of Women Organisation (ROW) which is a London based organisation whose work includes promoting legislation to benefit women.
- Julie Leibrich, Judy Paulin & Robin Paulin, Hitting Home. Men Speak About Abuse of Women Partners, Wellington: Department of Justice in Association with AGB McNair, 1995.
- This is likely to be a conservative estimate since it is based on men's reports of wife assault, rather than on women's reports.
- J. Gardner. Violence against Women. Adelaide: Attorney-General's Department of South Australia, 1994.
- For estimates from other studies carried out in New Zealand see: Jamie Ritchie, ‘Boys will be Boys: New Zealanders' Approval of Violence’, in Women's Studies Conference Papers 1981, Hilary Haines (ed), Auckland. New Zealand: WSA (NZ); David M. Fergusson, L. John Horwood, Kathryn. L. Kershaw, and Frederick T. Shannon, ‘Factors Associated with Reports of Wife Assault in New Zealand’, (1986) Journal of Marriage and the Family 48: 407–412; Paul E. Mullen, Sarah Romans-Clarkson, Valerie A. Walton, and G. Peter Herbison, ‘Impact of Sexual and Physical Abuse on Women's Mental Health’, (1988) Lancet I: 841–845.
- Ruth Busch, Neville Robertson & Hilary Lapsley Protection from Family Violence: A Study of Protection Orders Under the Domestic Protection Act, Victims Taskforce, Wellington, New Zealand, 1992.
- For example, R v Oakes (1992) 2 NZLR 73.
- See, for example, G v G (M 535/95, 15/10/1996) where the High Court awarded $85,000 exemplary damages against the plaintiff's ex-husband for violence against the plaintiff.
- Evidence of abuse was used by the defence to support reliance on the defence of compulsion in R v Witika (1993) 2 NZLR 424, but the defence was withdrawn from the jury. In R v Gordon (1993) 10 CRNZ 430 the Court of Appeal accepted that evidence that a woman is suffering from BWS may be a characteristic relevant to assessments of whether a reasonable person would have lost control.
- The Trust is also proposing a modified defence be introduced to be available to:
- a woman who acts to protect a child from being subjected to abuse;
- a child or young person who acts to protect a mother or sibling from being abused, as with a child or young person being victimised by sexual abuse who acts to prevent the abuse being carried out on a sibling.
- a household, or family members, acting together against a house-hold/family member who is abusing all of them.
- The English decision to advocate for a gender neutral defence was reported as a tactical decision by ROW in Justice For Women Information Pack, Justice for Women Collective, London N8 9NE, 1993.
- See for example, Jill Radford and Diana Russell (eds), Femicide. New York: Open University Press, 1993; Ian Millar. Murder in New Zealand 1988–93: Patterns of Victim/Offender Relationships and Putative Motivation Influences. Paper presented to the New Zealand Psychological Society Annual Conference, Hamilton, 24 August 1994.
- See, for example, the feminist campaign for Rape Law Reform in the 1980s and feminist involvement in the passage of the Human Rights Act 1993 and the recent Domestic Violence Act.
- The de-politicisation is evidenced by the constant characterisation of violence against women as ‘family violence’ amongst women refuge workers, the police and other ‘professionals' in New Zealand.
- In the author's view (as a lesbian), the place and validity of using law to achieve protection for lesbians at least, is by no means clear.
- That is, without the introduction of additional initiatives to address the situation of lesbians and gay men who kill abusive partners.
- Whilst these are not constitutionally entrenched, they are regarded as basic equality legislation in New Zealand.
- ‘Domestic Violence’ is defined in s3 of the Domestic Violence Act 1995.
- for example, Ellen Pence and Michael Paymar, Power and Control: Tactics of Men who Batter. Domestic Abuse Intervention Project, Duluth, 1986.
- Members of the New Zealand Court of Appeal, on occasions, have been unnecessarily insistent that abuse does not provide women with a defence (e.g in Ruka v Department of Social Welfare, C.A. 43/96, 1 October 1996; R v Oakes, (1995) 2 NZLR, 73), thus indicating they might be concerned by the temporal latitude of the defence.
- For example, the New Zealand requirement that a sufficiently proximate act be committed for a criminal attempt (s72 of the Crimes Act) means that acts which are well away, in terms of time, from the offence which was intended, as well acts connected closely in time to the intended offence may, depending on mens rea, constitute an attempt.
- Zecevic (1987) 162 C.L.R 645.
- For example in the Northern Territory, Queensland and Western Australia.
- R v Witika (1993) 2 NZLR 424 is an example of discrimination by omission in sentencing. The New Zealand Court of Appeal upheld a sentence of 16 years which had been imposed on a battered woman for being a party to the killing of her daughter. Although evidence was presented at trial that Tania Witika was severely abused by her co-offender, neither the sentencing court nor Court of Appeal reduced her sentence in recognition of this.
- For example, rape law reform legislation which was gender neutral and supported by feminist groups in the 1980s in New Zealand has meant that rapes which most closely resemble male conceptions of harm (e.g involve the use of weapons and are committed by strangers) are seen as ‘real rape’ while those committed most often; by men known to women, are seen as falling within the range of permissible heterosexual sex.
- Alison Young, ‘Conjugal Homicide and Legal Violence: A Comparative Analysis’ (1993) 31 Osgoode Hall Law Journal, 760 at 783 points out that in many cases in England self defence is not even relied on by the defence, apparently because acquittals for husband-killing would be generally regarded as ‘unthinkable’.
- Unlike the jurisdictions of New South Wales, Queensland, the Australian Capital Territory and the Northern Territory, a statutory defence of diminished responsibility is not available in New Zealand.
- As defined in s48 of the Crimes Act, self defence involves three elements:
- (i) a defensive purpose; and
- (ii) die defendant's belief in circumstances; and
- (iii) the use by the defendant of reasonable force (objective limb.)
- If all three elements are present, s48 justifies the exercise of force by a person, whether or not the force is used to defend against a threatened or actual assault.
- See for example R v Wang (1990) 2 NZLR 529.
- R v Wang, above n30, 529.
- In R v Oakes, above n21, 673 the Court of Appeal recognised that gender is relevant to whether or not proportionate force was used. Specifically, that by reason of gender socialisation, women may have to use what first appears as disproportionate force.
- See for example R v Wang, above n30, 529; R v Oakes, above n21, 673.
- Zecevic, above n23, 645.
- Such an emphasis is based on a conception of danger which is far removed from the everyday danger familiar to women who are subjected to prolonged male spousal abuse. Cynthia Gillepsie, Justifiable Homicide, Columbus: Ohio State University Press, 1989, traces the development of self defence to two situations: one involving a sudden assault by a stranger and the other involving a dispute between two persons of equal size and strength getting out of control.
- This has been emphasised as a common characteristic of killings by women of abusers. See, for example, R. A. Rosen, ‘On Self Defence, Imminence, and Women Who Kill Their Batterers' (1993) 71 North Carolina Law Review at 371; M.J. Willoughby, ‘Rendering Each Woman Her Due: Can a Battered Woman Claim Self Defence When She Kills Her Sleeping Batterer?’ 38 University of Kansas Law Review 169. However, in the United States, Holly Macguigan ‘Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals’, (1991) 140 University of Pennsylvania Law Review 379, found in her study of self defence cases that most women do not kill their partners when they are asleep, or otherwise incapacitated: 75% kill in the context of physical confrontations.
- As accepted by the Supreme Court of Washington in State of Washington v Wanrow Wash 559 P 2d 548, women lack access to training in the skills needed to repel an assailant without using deadly force or weapons. In R v Oakes, above n21, 676 the New Zealand Court of Appeal accepted this, but appears to undermine its recognition of this, by re-describing women's lack of access to defensive training and skills as women's ‘physical limitations’.
- A woman's belief may come from: having lived with the constant threat of harm to herself and/or her children; an ability to predict the onslaught and gravity of threatened violence; past unsuccessful attempts to escape and a resulting perception that there is no other way out. Walker found in her study, that most women who had killed an abusive partner had tried on several occasions to escape. See Lenore Walker, Terrifying Love: Why Battered Women Kill and How Society Responds, New York: Harper & Row, 1990. For accounts from New Zealand women of unsuccessful attempts to escape and seek help see, Busch, Robertson & Lapsley, Protection front Family Violence, above, n7.
- R V Oakes, above n21, 673.
- Lavallee v The Queen (1990) 55 CCC (3d) 97.
- R v Oakes, above n21, 673.
- Although it has become common to talk of a woman having been diagnosed as suffering from BWS, it is the author's view that this simply marks the way in which psychological explanations have re-invented social and political explanations of the effects of abuse on women.
- In comparison with New Zealand, there have been cases in Australia where a woman has relied on self defence where she has killed her abuser whilst he was asleep. See, for example, in South Australia R v Kontinnen (SC 30/3/1992, unreported).
- For example in Ruka v Department of Social Welfare, above n21, the majority of the New Zealand Court of Appeal seemed unprepared to extend Oakes, so that BWS evidence could be used to support a defence of lack of intent to defraud.
- R v Wang, above n30, 529.
- Ibid.
- Provocation comprises three main elements:
- (i) words or conduct from the deceased; and
- (ii) causing a loss of self control on the part of the defendant; and
- (iii) that a person with the characteristics of the defendant but otherwise having the ordinary power of self control, would have lost self control.
- See, for example, Elisabeth McDonald, ‘Provocation, Sexuality and the Actions of “Thoroughly Decent Men’” (1993) 9 Women's Studies Journal 126.
- The need for a specific triggering event is related to the need for proof of loss of self control, and has been one way in which the common law has sought to distinguish between murder in cold blood and murder in circumstances where emotion has taken over (then accepted as excusable). Note that the New South Wales Court of Appeal has accepted that a woman may lose self control without a specific triggering incident having occurred under s23 of the NSW Crimes Act: R v Muy Ky Chhay (1994) 72 Australian Criminal Review 1.
- As highlighted by Donald Nicholson and Rohit Sanghvi in “Battered Women and Provocation’, (1993) Criminal Law Review 728 at 730, women will commonly react and kill an abuser in response to a whole history of his abuse.
- For example, see R v McGregor (1962) NZLR 1069; R v Duffy (1949) 1 All ER 932.
- See Young, ‘Conjugal Homicide and Legal Violence’, above n27, 761.
- The concepts of cumulative and revived provocation in New Zealand allow for the possibility that women may be provoked by seemingly trivial remarks or conduct, in the context of a history of abuse. However both concepts have been shaped around requirements that there be a triggering event and a ‘sudden explosive loss of self control’.
- Note that the Court of Appeal in R v Oakes accepted that evidence of BWS was admissible and relevant to also support the defences of lack of mens rea and duress.
- For example, BWS evidence had no apparent impact on the verdicts in R v Gordon, above n10, 430; R v Witika, above n25, 424 and R v Oakes, above n21, 673. Each of these cases raised issues which have been discussed as problematic for women, in this paper.
- A difference in the quality of expert evidence is evidenced, for example, by a comparison of the evidence quoted in R v Oakes, above n21, 673 and Ruka v Department of Social Welfare, above n21.
- The ways in which BWS evidence has been manipulated by the psychiatry profession have been highlighted by many distinguished authors including Lenore Walker, ‘The Battered Woman Syndrome Is a Psychological Consequence of Abuse’, in Richard J. Gelles and Donileen R. Loseke (eds), Current Controversies On Family Violence, Sage Publications, 1993;. Elizabeth Sheehy, Julie Stubbs, Julia Tolmie ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ (1992) 16 Criminal Law Journal 369; Elizabeth M. Schneider, ‘Describing and Changing Women's Self-Defence Work and the Problem of Expert Testimony on Battering’ (1986) 9 Women's Rights Law Reporter 195. A tendency or preference of members of the New Zealand Court of Appeal to characterise women who rely on BWS evidence as ‘suffering from a mental disability’, has become apparent in the recent cases of Ruka v Department of Social Welfare, above n21,96 and R v Oakes, above n21, 673. On a more positive note is Thomas J's acknowledgement in Ruka, that a focus on BWS when discussing the effects of abuse on women, may be too restrictive (at 12–13 of decision).
- See for example, Stubbs and Tolmie, ‘Defending Battered Women on Trial’, above n57, 369–394; Julie Stubbs and Julia Tolmie, ‘Race, Gender and the Battered Woman Syndrome: An Australia Case Study’, (1995) 8 Canadian Journal of Women and the Law/RFD 122–141.
- As highlighted in Busch, Robertson & Lapsley, Protection From Family Violence, above n7, the myths about domestic violence such as: women cause or provoke violence; enjoy it or else they wouldn't stay; women lie about violence or exaggerate about it; nobody saw it therefore it didn't happen; account for a history of non-action on male spousal violence by the police and other helping agencies in New Zealand. It is highly likely these same myths, or beliefs, adversely influence jurors and undermine a woman's credibility and the effect of BWS evidence. As was submitted by the appellant in R v Oakes, above n21, 673, a judicial direction or warning to juries about the dangers of acting on evidence based on these myths is required in New Zealand.
- See, for example, Ann Jones, Women Who Kill, Gollancz, 1991; Helena Kennedy, Eve Was Framed. Women and British Justice, London: Vintage Books, 1992.
- An Australian study shows typical differences between men and women who kill their partners. Both male and female killings generally involve a history of dispute and violence. However, when men kill they are usually separated from their victims. By contrast, women rarely kill out of jealousy, or once a relationship is over. Instead the killing is usually a response to severe abuse; see Kenneth Polk and David Ranson. ‘The Role Of Gender in Intimate Homicide’ (1992) 24, ANZ Journal of Criminology 15, at 23: When men kill their women partners, in most cases this will be an act of ultimate control over a woman. When women kill, the impetus will most often be protection.
- See, for example, the current Self Defence Review being carried out in Canada of the cases of women who are in prison and who were denied the benefit of the Supreme Court's decision in Lavallee, above n40, 97; and the review of cases of 100 women in prison in the State of Ohio by Governor of Ohio in 1990. This review resulted in clemency being granted to a total of 29 women who had been convicted for killing, or assaulting an abusive spouse or companion.
Australian Feminist Law Journal
Volume 8, 1997 - Issue 1