In 2001 the Law Commission published a report examining the legal defences available to protect those who commit criminal offences as a reaction to domestic violence: “Some Criminal defences with Particular Reference to Battered Defendants” LCR73. Of particular note the Report recommended repeal of the partial defence to murder of provocation, an amendment to the defence of self-defence and abolition of the mandatory sentence of life imprisonment for murder.
In 2002 Parliament introduced discretionary sentencing in murder cases, subject to a presumption in favour of life imprisonment.
In 2007 the Law Commission published a second Report: “The Partial Defence of Provocation” LCR98. The Report again recommended repeal of this partial defence. The Commission concluded that its major deficiency was that the partial defence of provocation had been primarily used by violent offenders in respect of unwelcome advances or slights against their honour. It was seldom available to victims of family violence. Given this conclusion, the Commission re-examined whether the defence of self-defence should be amended to ensure that it is available to victims of family violence in appropriate cases. In answering this question the Commission noted the work undertaken as part of the Government Response to the Commission’s 2001 Report. That work concluded that amendment to section 48 of the Crimes Act 1961 (self-defence and defence of another) was not required to meet the needs of battered defendants, and might be undesirable in light of the fact that the section is generally regarded as working well. The Ministry reviewed recent case law, which tended to suggest that problems previously encountered were being ironed out in the courts; it thus concluded that the real problem previously was one of social awareness, rather than of law. The Ministry found that overwhelmingly stakeholders were comfortable with letting matters take their course. The Commission stated: “we are content at this stage to concur with the Ministry’s conclusions”.
In 2009 Parliament repealed section 169 of the Crimes Act 1961, which had provided for the partial defence to murder of provocation.
Since the 2009 repeal, the Family Violence Death Review Committee has been gathering data on all family violence homicides in New Zealand. In its Fourth Annual Report published in 2014, the Committee concluded that New Zealand is out of step in how the criminal justice system responds to victims of family violence when they face criminal charges for killing their abusive partners. To address this, the Committee recommended that the Government re-examine the options for amending the defence of self-defence and introducing a targeted partial defence to murder.
The Government has asked the Law Commission to conduct the re-examination recommended by the Family Violence Death Review Committee.
Terms of reference
The Law Commission will re-consider whether the law in respect of a victim of family violence who commits homicide can be improved. As part of this review the Law Commission shall consider:
- Should the test for self-defence, in section 48 of the Crimes Act 1961, be modified so that it is more readily assessable to defendants charged with murder who are victims of family violence; and
- Whether a partial defence for victims of family violence who are charged with murder is justified and if so in what particular circumstances; and
- Whether current sentencing principles properly reflect the circumstances of victims of family violence who are convicted of murder?
The reference forms part of a broader range of initiatives relating to family violence being undertaken by the Ministry of Justice. It also forms part of two other projects being undertaken by the Law Commission, being alternative trial processes with particular focus on sexual offence cases and whether a separate offence of non-fatal strangulation is desirable.
The reference will be undertaken by:
- Conducting preliminary research including a review of recent New Zealand cases and an assessment of overseas experience and best practice;
- Consulting with targeted agencies within New Zealand including the Police, Judiciary, Ministry of Justice, Family Violence Death Review Committee, New Zealand Law Society and other knowledgeable agencies;
- Engaging with an expert panel, made up of both public and non-public sector advisers, during the reference; and
- Publishing a Report.
The Law Commission reported to the Minister before the 31st March 2016.
Victims of family violence who commit homicide (NZLC IP39, 2015)
The Law Commission released its Issues Paper, Victims of family violence who commit homicide (NZLC IP39, 2015), on 11 November 2015.
The Issues Paper considers the law that applies when victims of family violence kill their abusers. It identifies three main areas in which there is a risk the current criminal justice system is not adequately providing for victims of family violence who commit homicide. These areas include the operation of self-defence, how the law recognises the culpability of these defendants when self-defence is not available (given the absence of any partial defence) and persisting myths and misconceptions about family violence which mean these defendants can struggle to have their experiences understood and may receive inequitable treatment before the law.
The Commission considers some reform is needed to ensure the law applies equitably to victims of family violence. The Issues Paper canvasses a range of options for reform and seeks feedback on 20 specific questions around the law of self-defence, partial defences, sentencing, decisions to prosecute, evidence, and education on family violence for people in the justice system.
Submissions closed on 18 December 2015.
Understanding Family Violence: Reforming the Criminal Law relating to Homicide (NZLC R139, 2016)
In its Report Understanding Family Violence: Reforming the Criminal Law Relating to Homicide, the Law Commission makes recommendations for changes to the criminal law to better serve victims of family violence who kill their abusers.
New Zealand has the highest reported rate of family violence in the developed world. Half of all homicides in this country happen within families and most occur within intimate partner relationships. Overwhelmingly, intimate partner homicides are committed by men, who have a history of using violence to exercise control over their partner.
By contrast, it is in only a small number of cases – less than five per cent of all homicides in New Zealand – that victims of family violence kill their abusers. Most are women who have endured years of trauma and abuse.
The Law Commission has found that fair treatment of these cases requires deeper knowledge of the nature and dynamics of family violence. Otherwise, the circumstances can be misunderstood, or the history of violence minimised, which can lead to unjust legal outcomes for these defendants.
The Law Commission recommends:
- Continued education to support an improved understanding of family violence among judges, lawyers and Police.
- Reforms to the Crimes Act 1961 and Evidence Act 2006 to improve the accessibility of self-defence to victims of family violence.
- Reforms to the Sentencing Act 2002 to promote consistent consideration of a history of family violence as a mitigating factor in sentencing.
- That the Ministry of Justice consider how the “three strikes” legislation applies to victims of family violence who commit homicide and how it could be amended to allow judges to impose a sentence other than life imprisonment in deserving cases.
No formal Government response to our report Undertanding Family Violence: Reforming the Criminal Law relating to Homicide (NZLC R139) was received.
For information on when a Government Response is required see: Official Government response process | Department of the Prime Minister and Cabinet (DPMC).