Law Commission recommends law change for victims who commit homicide

23 May 2016 | Family Violence Death Review Committee

 

This article was originally published by the New Zealand Family Violence Clearinghouse

The Law Commission has released its final report on the legal response to victims of family violence who commit homicide.

The report Understanding Family Violence: Reforming the Criminal Law Relating to Homicide (NZLC R139, 2016) was tabled in Parliament. The Law Commission has also published a summary.

The main recommendation of the report focuses on the application of the law of self defence. Currently, when a family violence victim who kills the person who has been abusing them, self-defence is often claimed but is not usually successful. Under the current law, for a person come under the law applying to self-defence, a threat needs to be considered "imminent." The Commission has proposed that in family violence cases, a victim should be able to claim self-defence even when they are responding to a threat that is not "imminent."

The summary report states:

"The 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."

The Law Commission's recommendations include:

  • education and training for judges, lawyers and Police
  • reforms to the Crimes Act 1961 to improve the accessibility of self-defence to victims of family violence where the threat is not "imminent"
  • reforms to the Evidence Act 2006 to provide for a broad range of family violence evidence to be admitted in support of claims of self-defence
  • reforms to the Sentencing Act 2002 to promote consistent consideration of a history of family violence as a mitigating factor in sentencing
  • the Solicitor-General should, when next reviewing the Solicitor-General’s Prosecution Guidelines, consider whether they should include express reference to relevance of a defendant’s history as a victim of family violence
  • no new partial defence or separate homicide offence should be introduced in New Zealand
  • 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.

The summary report concludes:

"It became clear in reviewing and reflecting on the abuse suffered by victims of family violence who kill their abusers that, in many cases, the final acts of homicide were acts of desperation – whether or not the defendants were acting in self-defence – in circumstances most of us do not fully understand and will never experience. This Report recommends changes to the law and measures to improve understandings of family violence, appreciating that legal reform is meaningful only when accompanied by shifts in thinking."

Comments on the report

Justice Minister Amy Adams said "The recommendation is based on the Commission’s view that the requirement for the threat to be imminent is not well suited to victims of family violence, as the threat in this context is likely to be based on a history of violence and ongoing, rather than a one off event."

According to the Law Commission, less than 5 percent of all homicides in New Zealand are cases where victims of family violence kill their abuser. While the numbers are small, most are women who have endured years of trauma and abuse. Law Commission President Sir Grant Hammond said, "It became clear in reviewing and reflecting on the abuse suffered by victims of family violence who kill their abusers that, in many cases, the final acts of homicide were acts of desperation."

Lead Commissioner Dr Wayne Mapp said "The reality is family violence in many cases is part of an ongoing, sustained, vicious pattern of violence that entraps the person … the entrapment means she cannot leave and that then means she ultimately, for fear of her life or that of her children, sees no other way out other than to defend herself with lethal force."

Nichola Lambie, a senior legal and policy adviser, stated that the recommended changes are not intended to allow self-defence as a 'get-out-of-jail free card for pre-meditated murder'. She said "We're not recommending changing the test for self defence, which is that the response must be reasonable in all circumstances as the defendant saw them. That's a matter for the jury. What we're trying to do is remove the focus on the imminent circumstances."

The Law Commission recommendations have been welcomed by many. Jan Logie, Green Party Spokesperson for Social Development, said "Victims who kill their abusers are treated harshly by our system. New Zealand is more likely to convict victims and incarcerate them than either Canada or Australia."

Women's Refuge agrees that New Zealand law lags behind Britain and many Australian states. Dr Ang Jury, Women’s Refuge Chief Executive, said "Having these circumstances better understood by Judges, Lawyers, Police and the wider public could, if combined with these types of legislative reforms, go a long way to helping prevent future injustices."

Justice Minister Adams will now consider the recommendations and said "The Law Commission’s proposals around self-defence would represent a significant departure from the law of self-defence as it currently stands and therefore needs careful thought and discussion, but we need to ensure the law appropriately responds to victims of family violence."

Background information

The Family Violence Death Review Committee's Fourth Annual report (2014) highlighted issues regarding criminal law for victims of family violence who commit homicide.

Based on that review, Justice Minister Amy Adams asked the Law Commission to review legal issues related to self-defence claims in cases of homicide by family violence victims.

The Law Commission released an issues paper in 2015 seeking comment.

Further information

See the Law Commission's webpage on the Victims of family violence who commit homicide project which provides an overview of the project, links to the initial issues paper and additional information. The Law Commission has also produced a fact sheet.

For more information about the Family Violence Death Review Committee's Fourth Annual report, see the NZFVC story, Death reviews lead to call for "radical change" in response to dangerous family violence.

Last updated 23/05/2016