Contents

Chapter 2
Understanding family violence

Introduction

2.1Family violence destroys lives and takes a significant toll on New Zealand society. Almost half of all homicides in New Zealand over the period 2009–2012 related to family violence.18 Disproportionately, family violence affects the lives of women. Whatever their gender or relationship to an aggressor, however, victims of family violence who kill their abusers have typically suffered years of physical, sexual and/or psychological abuse. The consequences of this abuse can be devastating both for the victims and their families. Discussing intimate partner violence, Jane Maslow Cohen writes:19

Terrible and tragic things happen within the contexts of battering relationships, even beyond the violence and resultant injury itself. These tragedies include the death of the battered victim; the physical and psychological abuse of others, especially children, within the household; the destruction of employment situations and opportunities; the withering away of basic trust, particularly trust in intimacy; and, often, the waste of what might, and should, have been rewarding and productive lives.

2.2In this chapter, we consider the nature of family violence, the relationships in which it takes place and the circumstances in which victims of family violence commit homicide. Such cases represent a small subset of family violence related homicides in New Zealand.20 Of the 126 deaths the Family Violence Death Review Committee (FVDRC) reviewed for its Fourth Annual Report, only 10 involved killings by primary victims of intimate partner violence (IPV),21 while three involved killings by children who had been abused by fathers or step-fathers and witnessed their mothers being abused.22 All the IPV primary victims who committed homicide were women.
2.3Unsurprisingly, most IPV homicides are committed by those who have a history of aggression; most homicide offenders have been “predominant aggressors” in their relationships.23 The data on cases that involve killings of non-intimate family members, including children, is more complex, but it appears most offenders who commit violent killings of non-intimate family members have histories of abusing children or intimate partners.24 Mostly, predominant aggressors in both IPV and non-IPV cases are men.
2.4People who commit family violence homicides are, in short, normally otherwise violent and usually, albeit not always, male. Primary victims are much less likely to kill their abusers than to be killed, and when they do kill, it is usually after they have suffered very serious and long-term violence themselves.25
2.5While our reference is concerned with family violence deaths, we note there can be a fine line between fatal and non-fatal violence. It has, for example, been consistently found that the “number one risk factor for intimate partner homicide is prior domestic violence, whether the victim is male or female”,26 but a “tiny proportion” of men who have been violent eventually commit homicide.27 Research from the United Kingdom and the United States has identified “clear empirical evidence to suggest that qualitatively men who kill their spouses do not differ greatly from those who use non-lethal violence“.28

2.6It is apparent that neither family violence nor the responses of victims are amenable to simple analysis. Family violence is a feature of a range of interpersonal relationships, and forms and patterns of violence differ, as do victims’ experiences and responses. While this review is confined to cases in which victims of family violence kill, many more victims may commit acts of non-homicidal violence or react non-violently. Such cases are outside our terms of reference but, at least in connection with self-defence, will give rise to similar issues.

2.7We welcome all feedback on our discussion of family violence and the circumstances of primary victims who kill their abusers.

Our sources

2.8We draw on the FVDRC’s Fourth Annual Report, judgments of New Zealand courts, local and overseas law reform work and academic writing to give an insight into the abuse and other circumstances that precede and surround such homicides. Our purpose is to provide context for our discussion of the problems in this area of the law and the options and challenges for reform.

2.9We understand the FVDRC is due shortly to release its Fifth Annual Report, which will include updated data on family violence deaths in New Zealand. It has not been possible for us to review that data in time for this Issues Paper. We will, however, do so for our Final Report.

2.10In reviewing particular cases in which victims of family violence have killed their abusers, we have relied primarily on sentencing, pre-trial and appeal decisions where they are available. We have also considered media reports, where available.

18Family Violence Death Review Committee, above n 2, at 32.
19Jane Maslow Cohen “Regimes of private tyranny: what do they mean to morality and for the criminal law?” (1995) 57 University of Pittsburgh Law Review 757 at 762.
20We use the terms “primary victim” and “predominant aggressor”, which we explain below at paragraph 2.11, to describe the dynamics of intimate partner violence, per the FVDRC’s Fourth Annual Report (Family Violence Death Review Committee, above n 2, at 15). The FVDRC defines those terms by reference only to IPV and not other forms of family violence. Most of the cases we discuss involve IPV, but two, R v Erstich (2002) 19 CRNZ 419 (CA) and R v Raivaru HC Rotorua CRI-2004–077–1667, 5 August 2005, involve children who killed violent parents. The term “primary victim” is less obviously appropriate for these cases, in part because the offender appears more likely to be reacting to the abuse of another (for example, a mother) in addition to themselves (see, for example, Raivaru at [6]–[7] and [19]). Thus, where appropriate, we may describe defendants who kill abusers as simply “victims” of family violence, with appropriate explanation of the extent to which they and/or others were subject to abuse by the deceased.
21This included one suspected case. See: Family Violence Death Review Committee, above n 2, at 42.
22At 65. The circumstances of the three intrafamilial (IFV) deaths reviewed by the FVDRC are not clear. In particular, it is unclear whether the deceased were abusive towards the child offenders. If they were not, those cases are outside our terms of reference. As we discuss in this chapter, however, two of the 23 cases we reviewed (which are listed in Appendix B) involved children killing parents.
23We discuss this term below at paragraph 2.11.
24The FVDRC divides child abuse and neglect (CAN) deaths into four categories: fatal inflicted injury, filicide and parental suicide, neonaticide, and fatal neglectful supervision. Offenders’ abuse histories are identified only in the fatal inflicted injury cases (which account for 19 of the 37 deaths). The circumstances of the neonaticides, filicides and neglectful supervision cases, which overwhelmingly involved female offenders (12 mothers and 3 fathers), are not analysed. That may be because such cases are of a different type to other forms of family violence, but the FVDRC report includes no information on whether they involved antecedent violence, by the women or others, or if other factors typically associated with infanticide, such as post-natal depression, were present.
25Family Violence Death Review Committee, above n 2. See, also, Victorian Law Reform Commission, above n 16, at 61.
26Jennifer Martin and Rhonda Pritchard Learning from Tragedy: Homicide within Families in New Zealand 2002-2006 (Ministry of Social Development, April 2010) at 38. Some suggest the most reliable predictor of further violence is a victim’s own appreciation of risk – the fear he or she feels – because the victim will have become hyper-vigilant and attuned to signals of impending violence. Primary victims who misjudge the likelihood of future violence also tend to underestimate, rather than overestimate, the risk of violence (see Kellie Toole “Defensive Homicide on Trial in Victoria” (2013) 39 Monash University Law Review 473 at 277; Victorian Law Reform Commission, above n 16, at 162; Susie Kim “Looking at the Invisible: When Battered Women are Acquitted by Successfully Raising Self-Defence” (2013) 13–04 UNSWLJ Student Series at 6.)
27Martin and Pritchard, above n 26, at 39.
28Aldridge and Browne “Perpetrators of spousal homicide: a review” (2003) 4 Trauma, Violence and Abuse 265–276; discussed in Martin and Pritchard, above n 26 at 39. According to a report commissioned by the United States National Institute of Justice (USNIJ) in 2005, several studies have examined “escalation” within IPV and found that, while patterns vary across different types of relationship and different types of violence, increases in the frequency and intensity of domestic violence were common and unpredictable. The findings of another study undertaken for the USNIJ similarly “contradicted overgeneralisations about high-risk batterers” who are not “easily “typed” or predicted”. Findings of these reports are discussed in: Kellie Toole “Self-Defence and the Reasonable Woman: Equality before the New Victorian Law” (2012) 36 Melbourne University Law Review 250 at 276–277.