Contents

Chapter 2
Understanding family violence

Relationship types and gender

2.14Historically, consideration of family violence has focused on male aggression towards women and “battered woman syndrome” developed alongside the organised women’s movement. Most of the cases we are concerned with involve a heterosexual family context. In that context, violence is a gendered phenomenon. Perpetrators of violence are usually men, victims are usually women and children, and men and women kill for different reasons and in different ways.34

2.15It should not, however, be lost sight of that the problems we consider arise – in all likelihood more frequently than the data suggests – in contexts that depart from this type, including non-heterosexual intimate relationships.

2.16Concepts and models that have traditionally been applied to women, in the context of intimate partner relationships, might be applied to other victims. Most obviously, “battered woman syndrome” has in some cases been reframed as “battered person syndrome”35 and/or applied to non-female victims. The nature and effects of family violence may perhaps more helpfully be conceptualised in terms of behaviours rather than participant characteristics.
2.17It does not seem to us to be problematic to extend our consideration to the positon of victims or aggressors who are not or are only minimally represented in the available data. We agree with the Victorian Law Reform Commission that the same legal issues arise for all victims of family violence who kill their abusers, of whatever gender, and whatever their relationship to the abuser.36

Relationship types

2.18Although our terms of reference are confined to cases involving homicide, they are not confined to cases involving intimate partner violence (albeit IPV was the focus of the FVDRC recommendation that precipitated this project).37 We are required to consider the position of all victims of family violence who commit homicide.
2.19Intimate partner relationships are the most common context in which primary victims kill predominant aggressors,38 but victims of family violence kill abusers within other close interpersonal relationships, too. Of the 23 New Zealand cases we have reviewed in which primary victims killed abusers,39 two involved killings of male parents by male children.
2.20In the first, R v Erstich,40 the defendant had been subjected by his father to abuse that the Crown accepted amounted to “not much short of a reign of terror”.41 When he was 14 years old, after a decade of being subjected to physical and psychological abuse, and witnessing violence towards his mother and brothers, the defendant killed his father by shooting him at close range. The killing was premeditated, but although he was charged with murder, the defendant was convicted of manslaughter. At trial, he claimed the killing was provoked.42 He ultimately received a suspended sentence of two years’ imprisonment.43
2.21In the second, R v Raivaru,44 the defendant was 15 years old when he stabbed his step-father to death with a carving knife in circumstances the sentencing judge considered amounted to “serious provocation”. Before the killing, the step-father had assaulted and verbally abused the defendant and his mother, and the judge accepted the homicide arose from the defendant’s desire to protect his mother, which “regrettably, resulted in disproportionate use of force with a weapon”.45 The defendant pleaded guilty to manslaughter and was sentenced to four years’ imprisonment.
2.22Erstich and Raivaru are cases of homicide by children, not intimate partners, but both involved violence against other family members, including the defendants’ mothers. The FVDRC notes that IPV and child abuse and neglect (CAN) are “entangled” forms of abuse and that:46

It is well known that exposure to IPV is a form of child abuse and that there is a high rate of co-occurrence between IPV and the physical abuse of children. Many children affected by family violence are living with what Edleson et al [footnote omitted] have described as the ‘double whammy’ – the co-occurrence of being exposed to family violence in relation to other family members and being a direct victim of child maltreatment. Children are also injured in the ‘crossfire’ of a violent assault or attack against the adult primary victim and can be used as ‘weapons’ by abusive (ex-) partners in the context of IPV.

2.23The FVDRC notes in addition that IPV and CAN are “not necessarily separate co-existing forms of violence” and that their co-occurrence may “only [make] sense if you understand family violence (IPV and CAN) as a pattern of coercive control and that actions directed at one individual are not necessarily designed to impact only on that individual”.47
2.24Intrafamilial violence (IFV) – that is, family violence that is not IPV or CAN – is, similarly, often “entangled” with other forms,48 although that is not always the case.49
2.25We discuss below the nature of coercive control, which is considered by many to be central to contemporary understandings of family violence and particularly intimate partner violence.50

GenderTop

2.26Men are generally much more likely than women to commit and be victims of homicide, and they are most likely to kill strangers in “confrontational” circumstances.

2.27When they kill in the context of intimate relationships, men tend to do so out of jealously or a desire for control and to have histories of aggression. Of the 55 IPV deaths the FVDRC reviewed where information was available about the abuse history in the relationship, 41 involved a deceased female, and 40 of those involved a male predominant aggressor.51 Three further cases involved male offenders and male deceased, and the men who caused the death were in all cases current or former predominant aggressors.52
2.28Women, by contrast, tend to kill intimate partners in response to long-term family violence, in non-confrontational circumstances and with a weapon rather than their bare hands.53 Among the FVDRC’s sample of 55 IPV deaths where information was available, females who killed were in the main primary victims (10 cases). Female predominant aggressors were responsible for the death of two primary victims (one female and one male).54
2.29We discuss these differences in Chapter 5, where we identify problems with the current law and the operation of self-defence. For the purposes of this chapter, we simply observe that the circumstances in which women kill may also apply to others, such as children abused by parents or non-female primary victims.55 Women are, however, disproportionately represented among primary victims.

Non-heterosexual intimate partner relationships

2.30The FVDRC records that same-sex family violence deaths are likely to be undercounted.56 Even allowing for undercounting, among the 46 female IPV deaths the FVDRC reviewed for its most recent report, one occurred in a same-sex relationship.57
2.31Most literature and data on primary victims of family violence who kill abusers concerns heterosexual relationships. Lesbian, gay, bisexual, transgender and intersex IPV has received less attention,58 but there is some evidence it may be as prevalent as heterosexual violence.59 Some contend the dynamics of same-sex IPV are similar to those in heterosexual relationships,60 while others suggest they may be different in material ways.61 In any event, it is widely acknowledged further research is required.
34At 41. Victims in this context are not always women. One of the 55 IPV deaths considered by the FVDRC about which relationship history information was available involved a male primary victim and a female primary aggressor. In its recent discussion document on New Zealand’s legislative response to family violence, the Ministry of Justice noted men’s experience of domestic violence is often different to that of women. IPV perpetrated by men against women is much less severe and men are more likely to experience other forms of family violence, like sibling violence. See: Ministry of Justice, above n 1, at 14.
35In New Zealand, see RR v KR [2010] NZFLR 809. In Australia, see R v Monks [2011] VSC 626.
36Victorian Law Reform Commission, above n 16, at 61.
37Family Violence Death Review Committee, above n 2, at 102–104.
38Among the 126 deaths the FVDRC reviewed for its Fourth Annual Report, 63 (50 per cent) were IPV deaths, 34 (29 per cent) were CAN deaths and 26 (21 per cent) were cases of intrafamilial violence (IFV). Of the IPV deaths, 75 per cent of the offenders were men, and almost 75 per cent of the deceased were female. Of the 46 female deceased, 44 were killed by their male intimate partner: Family Violence Death Review Committee, above n 2, at 39. Among the CAN deaths, 19 were a result of assault. The remaining CAN deaths were a result of filicide and parental suicide, neonaticide and fatal neglectful supervision: Family Violence Death Review Committee, above n 2, at 53-54.
39See Appendix B.
40R v Erstich, above n 20, at [3].
41At [3].
42The Court of Appeal recorded the verdict “may have reflected acceptance of lack of intent to murder, but was more likely on the facts of the case to have entailed the jury’s acceptance of the partial defence of provocation” (at [3]).
43The sentence of imprisonment was imposed on appeal. The defendant was in the first instance sentenced to two years’ supervision.
44R v Raivaru, above n 20.
45At [19].
46Family Violence Death Review Committee, above n 2, at 76.
47At 76–77.
48At 64–65.
49See, for example, the Victorian case of R v Monks, above n 35. In that case the defendant invoked Victoria’s now-repealed defensive homicide provision after he killed his abusive uncle.
50See, for example, the Ministry of Justice’s recent discussion document, Ministry of Justice, above n 1. See also Strengthening the Law on Domestic Abuse Consultation - Summary of Responses (United Kingdom Home Office, 2014).
51Family Violence Death Review Committee, above n 2, at 41. One of the 41 cases involved a female predominant aggressor.
52At 41.
53See Chapter 5, and the references cited therein, at paragraphs 5.6–5.9.
54Family Violence Death Review Committee, above n 2, at 41.
55See, for example DPP v Bracken [2014] VSC 94, discussed in Kate Fitz-Gibbon and Arie Freiberg “Introduction: Homicide Law Reform in Victoria - Retrospect and Prospects” in Kate Fitz-Gibbon and Arie Freiberg (eds) Homicide Law Reform in Victoria: Retrospect and Prospects (The Federation Press, Leichhardt, NSW, 2015) 1 at 11. In that case, the defendant killed his wife who had been physically and psychologically abusive during their relationship.
56Family Violence Death Review Committee, above n 2, at 39.
57At 39.
58For a helpful and recent discussion from the Australian Institute of Criminology, see Alexandra Gannoni and Tracy Cussen “Same-sex intimate partner homicide in Australia” [2014] Trends & issues in crime and criminal justice 469. The lack of focus on non-heterosexual intimate partner violence has received comment as research has emerged, and some attention in popular media. See, for example: “Breaking the taboo of domestic violence in LGBTI relationships” (30 May 2015) Stuff <www.stuff.co.nz>; Ally Fogg “LGBT victims of domestic abuse are rarely catered for – or acknowledged” The Guardian (online ed, London, 14 March 2014); Maya Shwayder “A Same-Sex Domestic Violence Epidemic is Silent” The Atlantic (online ed, Washington, 5 November 2013); and Joanna Jolly “Is violence more common in same-sex relationships?” (18 November 2014) BBC News <www.bbc.com>.
59See, for example, Reducing the impact of alcohol on family violence (Social Policy Evaluation and Research Unit (SUPERU), 2015) at 2. See also the press release of the United States Centers for Disease Control and Prevention “CDC releases data on interpersonal and sexual violence by sexual orientation” (press release, 25 January 2013).
60Leonard D Pertnoy “Same violence, same sex, different standard: an examination of same-sex domestic violence and the use of expert testimony on battered woman’s syndrome in same-sex domestic violence cases” (2012) 24 St Thomas Law Review 544 at 545. See also “Reducing the impact of alcohol on family violence”, above n 59.
61Gannoni and Cussen, above n 58. See also Evan Stark Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press, Oxford, 2007) at 397.