Contents

Chapter 2
Understanding family violence

The nature of the violence

Physical and sexual abuse

2.48Much of the commentary in this area is from overseas and draws on cases that have arisen overseas. It seems to us that many of those cases involve violence and coercion that could equally occur in New Zealand, but the cases below, which we have drawn from Appendix B, all arose in New Zealand.83

2.49It is apparent from these cases (which all resulted in a conviction, but are not intended to be representative of our sample) that the physical and sexual violence to which victims who kill abusers are subjected can be extremely serious:

2.50What these and other cases also illustrate is that physical and non-physical elements of family violence cannot properly be considered separately. Non-physical elements, like the terror of the “next” assault, the danger and fear victims face when they try to leave abusive relationships and the isolation achieved by coercive and controlling behaviour, are integral to the overall “architecture” of family violence. We discuss this wider context below.

The wider “architecture” of family violenceTop

2.51In its Fourth Annual Report, the FVDRC considered lingering myths about family violence, which we discuss in Chapter 5.90 Perversely, beliefs and misconceptions held by a victim’s family and society may make it harder for the victim leave, seek help and not return to the relationship.
2.52The FVDRC says it is important to appreciate the “overall architecture” of family violence.91 Such violence is complex because it takes place over long periods of time and involves more than individual assaults. It often also involves the isolation and entrapment of primary victims and abuse of secondary victims, like children, who may witness their mother’s abuse or be subject to state intervention for their own protection.
2.53While incident-focused conceptions of family violence may seem useful in court proceedings because “incidents can be asserted and often proven”,92 an emphasis on discrete events may obscure the broader dynamics of family violence.

Cumulative harm

2.54The impact of family violence is cumulative. Its long-term effects are more than the sum of the effects of individual acts of violence. This is particularly relevant in cases in which primary victims kill their abusers. The FVDRC’s regional reviews, for example, showed that:

The cumulative and compounding effect of the abuse also frequently resulted in a raft of secondary issues. These included physical and mental health issues, histories of self-medicating with drugs and alcohol, suicide attempts and the inability to hold down employment. IPV victims often had difficulty in parenting their children, which – in some cases – resulted in them terminating pregnancies because they could not face bringing another child into “a nightmare situation” or their children being physically removed from them because they were unable to keep them safe.

2.55Stark notes it is difficult to reconcile long-term abuse and cumulative harm with the criminal law’s traditional focus on discrete incidents of violence. He says that:93

Sheer repetition is not the issue. Even though pickpockets, muggers or car thieves typically commit dozens of similar offenses, because each harm is inflicted on a different person, the law is compelled to treat each act as discrete. But the single most important characteristic of woman battering is that the weight of multiple harms is borne by the same person, giving abuse a cumulative effect that is far greater than the mere sum of its parts. As British sociologist Liz Kelly has pointed out in her work on sexual predators, a victim’s level of fear derives as much from her perception of what could happen based on past experience as from the immediate threat by the perpetrator.

Coercive abuse

2.56Tactics of “coercion” include violence and acts of intimidation, which may be non-physical or indirect. Examples of coercive violence include severe beatings and sexual violence and acts like strangulation, which has been described as “the domestic violence equivalent of water boarding”.94 Examples of coercive intimidation include threats and violence against children or pets.95 Coercive behaviour instils fear and is apparent in the cases we have reviewed. One expert, cited in the Victorian Law Reform Commission’s Report on Defences to Homicide, explained the power of this kind of abuse:96

A commonly reported pattern of abuse is the limited use of physical assaults, with daily threats of physical abuse and verbal abuse. The threats of physical violence are often as powerful in maintaining control over a victim as the actual incidents of violence. Once the perpetrator has shown they are capable of carrying out the threats made, there is no need to resort to physical assaults. The often unpredictable nature of abusive outbursts leaves some women in a constant state of fear for their lives.

Tactics of control

2.57Tactics of control undermine victims’ capacity for independence. They are important because they inhibit a victim’s ability to resist and escape. Examples of controlling behaviour by the primary aggressor recorded by the FVDRC include smashing multiple phones so their partners are uncontactable and cannot contact others, keeping at least one child at home every time a partner leaves so the partner has to return and controlling access to friends and relatives.97
2.58These behaviour types receive little attention in the cases we have reviewed. They are less obvious than physical assaults and may, of course, not be reported by victims. The FVDRC cautions that, within a coercive and controlling environment:98

Many women are hypervigilant in order to manage their and their children’s safety. Thus, apparent rejections of help or a lack of response to service enquiries may be an attempt to maintain their personal safety and that of their children.

Entrapment

2.59Evidence demonstrates it is very difficult for primary victims of family violence to leave abusive relationships. Half the IPV deaths the FVDRC reviewed took place in the context of a planned or actual separation.99 A 2008 report by the Ministry of Social Development included a similar finding. Of the 74 couple-related homicides the Ministry reviewed for the period 2002–2006, 58 (78 per cent) included threatened, imminent or recent separation as a precipitating factor.100
2.60Despite the dangers separation poses for primary victims and the controlling tactics that may inhibit escape, the FVDRC records that many victims go to considerable lengths to try and protect themselves and their children. They may relocate to refuges, take out protection orders or contact police or other agencies or family and friends for help.101 Other victims may perceive or find no practical help from outside sources or, counter-intuitively, not wish to leave an abusive partner, but that does not mean they do not want the violence to stop.102 Entrapment of primary victims is complex.103
2.61The FVDRC cautions that, beyond the dynamics of individual relationships, wider structures contribute to entrapment.104 In connection with family violence among Māori, the Committee emphasises structural inequities, and the Ministry of Justice has made reference to “[compounded] disadvantage”. More generally, victims might be entrapped by social isolation, inequalities and institutional indifference105 as well as misunderstandings about the nature of family violence. Seen in this way, the entrapment of family violence can be social as well as personal or relationship specific. It is on this basis that the FVDRC criticises the “empowerment” approach to responding to family violence:106

It is important to put the concept of empowerment within victims’ complex and sometimes chaotic lives, as structural inequities constrain and shape the lives of victims, albeit in different ways. The concept of “empowerment” is problematic when working with victims facing lethal violence, who also frequently face severe structural disadvantages. This is because it may appear as though an individual’s inability to keep themselves or their children safe is a result of their decisions and choices. It renders invisible the systemic barriers that impede those choices (such as lack of stable housing and access to money, poverty, racism, sexism and the legacy left behind by colonisation) [footnote omitted].

83We have selected these cases for a number of reasons. First, unlike some of the cases in our sample (where the defendant was acquitted), each is associated with a judgment of a court on which we have drawn for a description of the facts. Second, even among those cases that are associated with judicial decisions, not all decisions detail the nature of the violence the defendant suffered before he or she committed homicide. Third, the cases we have selected seem, from the material available to us, to represent particularly serious instances of violence.
84R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.
85At [22].
86R v Paton [2013] NZHC 21.
87At [2].
88At [5].
89R v Erstich, above n 20.
90See paragraphs 5.56–5.66.
91Family Violence Death Review Committee, above n 2, at 71.
92Mahoney, above n 72, at 30.
93Stark, above n 61, at 94.
94Susan B Sorenson, Manisha Joshi and Elizabeth Sivitz “A Systematic Review of the Epidemiology of Nonfatal Strangulation, a Human Rights and Health Concern” (2014) 104 Am J Public Health e54 at 57. Strangulation is the subject of another reference the Law Commission is currently considering and also scheduled to report on in March 2016.
95Family Violence Death Review Committee, above n 2, at 72.
96Victorian Law Reform Commission, above n 16, at 161.
97Family Violence Death Review Committee, above n 2, at 72.
98At 73.
99At 40.
100Martin and Pritchard, above n 26, at 34.
101Family Violence Death Review Committee, above n 2, at 80.
102At 80.
103Stark writes that the women with whom he has worked “have repeatedly made clear that what is done to them is less important than what their partners have prevented them from doing for themselves by appropriating their resources; undermining their social support; subverting their rights to privacy, self-respect, and autonomy; and depriving them of substantive equality”. Thus, he suggests, coercive control is a “liberty crime rather than a crime of assault” Stark, above n 61, at 13.
104Family Violence Death Review Committee, above n 2, at 80–81.
105At 80 (citing J Ptacek Battered Women in the Courtroom: The Power of Judicial Responses (Boston, Northeastern University Press, 1999) at 10.
106At 83.