Two nations in a reform vacuum over family violence

Law reformers in New Zealand and Canada have much to learn from each other.

In the last year, both the New Zealand Family Violence Death Review Committee and the New Zealand Law Commission made recommendations for change that would improve access to justice for women who experience intimate partner abuse. Even though intimate partner violence has by no means abated, and the risk of intimate femicide remains urgent for New Zealand women, these recommendations have yet to be taken up by the legislature or the courts.

Canada too remains largely stuck in a reform vacuum. A woman is killed by her current or former partner every six days and this rate may be escalating. In Peel alone (a region that forms part of the greater Toronto area) five women were killed in January 2018, which is the same number of women killed in these circumstances in Peel for all of 2017. Indigenous women are at grave risk, for they are murdered at a rate of 12 times that of other women.

Yet we seem to be paralysed and unable to act – and if we cannot protect women from known danger, do we have the right to judge them when they act preventatively to save their own lives?

Canada has already reformed its law of self-defence, making it more available to battered women who kill their abusers, arguably even in advance of an ongoing attack. As of 2014, the new defence only requires that the defendant provide some evidence that she faced actual or threatened force, acted with the motive of self-protection (or protection of another), and that the use of force was reasonable (in light of a range of considerations such as imminence and proportionality). The defence is available for any crime, and clearly the defendant need not strictly show she faced an immediate threat of death or grievous bodily harm to get the defence before the jury. Further, a Canadian court has accepted expert evidence of “coercive control” offered by the defence in a murder trial, to make visible to the jury the escalated risks of intimate femicide when a perpetrator exercises coercive control over his female partner.

The New Zealand FVDRC published its Fifth Report Data: January 2009 to December 2015 in 2017. This report noted that when victims of intimate partner violence were killed by the predominant male aggressor in the relationship, the women’s deaths were often preceded by escalating coercive and controlling behaviours; demonstrated planning or premeditation; frequently involved the use of violence far in excess of what was necessary to cause death; and sometimes involved harm to multiple people (including people who attempted to protect the victim).

The 16 cases in which primary victims of intimate partner violence killed, rather than were killed by, the aggressor, provide a stark factual contrast. Twelve of these women were responding to an actual physical assault or the threat of a physical assault by the deceased, 13 used kitchen knives or implements that they had spontaneously grabbed in response to an escalating threat, 12 stabbed their partner once or occasionally twice, while 13 inflicted the fatal wound in their house (eight in the kitchen). The FVDRC concluded that there are strong defensive elements to these killings. While one might think many of these women (most of whom had endured years of abuse) would have cases for acquittal on the basis of self-defence, in fact, of the 14 resolved cases, only three were acquitted.

On the recommendation of the FVDRC, the NZ Law Commission examined whether the existing defences to homicide could be improved for primary victims who kill their abusers. The commission’s 2016 report, Understanding Family Violence: Reforming the Criminal Law Relating to Homicide recommended that the law on self-defence be reformed to abolish the requirement for an imminent threat; that education on the nature of intimate partner violence be given to police, lawyers and judges; and that the laws of evidence be amended to provide for a broad range of evidence in family violence cases, which could conceivably include coercive control evidence.

Yet, in 2018, nothing has yet been done in response to these recommendations.

The NZ legislature should look to its own experts and to the Canadian experience to reform self-defence. In turn, Canada has much to learn from NZ. Lacking both a national law reform body and a national body dedicated to studying and preventing intimate partner homicide, Canada can benefit from the expertise New Zealand has gained from having these organisations in place. The New Zealand Death Review Committee has studied the issue of intimate femicide and family violence deaths in depth and has suggested the development of a family violence safety system, capable of delivering culturally appropriate responses to Māori whanau.

It urges a conceptual shift in the way we understand intimate partner abuse that would affect women’s access to justice in the family and criminal courts, as well as in the medical, social welfare and child protection systems. Instead of viewing it as incidents or “one-off” acts of violence, it describes family violence as a pattern of harm that serves to isolate and disable women and instil fear. The Death Review Committee explains that this pattern of harm includes threats, surveillance and coercive control, that may not appear as “extreme violence” but are disabling and predictive of serious violence.

Family violence must be recognised as a complex problem that requires all systems to integrate, and demands that we draw upon the very best thinking available, whether in New Zealand or Canada. We urge New Zealand to reform the law of self-defence and rules of evidence, and Canada to adopt a national institution capable taking the searching and systemic inquiry performed by New Zealand’s FVDRC to the next level.

The lives of women, men and children depend on just such collaborations.

Professor Elizabeth Sheehy, from the University of Ottawa, is a distinguished visitor at the University of Auckland.

This article reflects the opinion of the author and not the views of the University of Auckland. 

Used with permission from Newsroom, Two nations in a reform vacuum over family violence published on 6 April 2018.