Contents

Chapter 1
Setting the scene

Background

1.6For the reasons we explain in this Issues Paper, it is widely acknowledged that the law can struggle to facilitate “fair” outcomes for victims of family violence who kill their abusers. Such defendants may be acting in response to a long history of abuse but will usually be charged with murder and, if convicted, can face long terms of imprisonment. As a result, it is often recognised that this group of defendants face a significant risk of injustice. In recognition of this risk, in recent decades there have been substantial efforts in a number of jurisdictions to improve the law in this area.

1.7In New Zealand, the Law Commission has previously considered the law in respect of victims of family violence who commit homicide, and made recommendations, on two separate occasions.

1.8In 2001, the Commission considered and reported on the position of victims of family violence who kill their abusers in Some Criminal Defences with Particular Reference to Battered Defendants (2001 Report).7 That Report canvassed defences available to such defendants and the law of sentencing for murder. The Commission concluded that some reform was needed to ensure that the legal defences applied equitably to battered defendants. The relevant recommendations included reforming self-defence, abolishing the partial defence of provocation, and replacing the mandatory life sentence for murder with a sentencing discretion.
1.9In 2007, the Law Commission published another report, The Partial Defence of Provocation, in which it reaffirmed its recommendation to repeal provocation.8 Provocation was repealed in New Zealand in 2009. However, a key basis for the Commission’s recommendation for repeal – the drafting of sentencing and parole guidelines – has not eventuated. The Commission’s previous Reports, and the Government’s response, are discussed in more detail in Chapter 4.

1.10A number of other countries have also reviewed and reformed their laws to better accommodate the experiences of victims of family violence who commit homicide. The Australian state of Victoria has, over the past decade, introduced a suite of reforms that both amended the substantive law and sought to engender cultural change in relation to community understanding of the dynamics of family violence. Similar reforms have also been adopted in Western Australia and have recently been recommended in Tasmania. Queensland has also endeavoured to recognise the reduced culpability of victims of family violence who kill their abusers but through quite a different legislative approach. Further afield, still more reform has been introduced in England and Wales.

1.11These reviews and reforms have generated a significant body of legal and social commentary. However, approaches to reform in other countries have varied depending on broader criminal justice policies and existing legal frameworks within each jurisdiction and must therefore be carefully considered in that context.

7Law Commission Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001).
8Law Commission The Partial Defence of Provocation (NZLC R98, 2007).