Contents

Chapter 5
Problems with the current law – is there a need for reform?

Misunderstanding the dynamics of family violence

5.52A proper understanding of the dynamics of family violence in the criminal justice system, and by individuals operating within that system, is crucial to ensuring that victims of family violence who commit homicide are treated equitably before the law.

5.53In Chapter 1, we identified, as a guiding principle, the need for the law of homicide to reflect the context in which homicides typically occur. Put simply, if the decision-maker (be it jury or judge) does not understand the social context of the homicide and the realities the defendant faced, they cannot accurately assess the defendant’s actions.

5.54How family violence is understood will be relevant to:

5.55While community understanding of the nature and effect of family violence has improved over time, recent literature and research suggest that community misconceptions persist.284 As we noted at paragraph 5.12 above, some commentators argue that it is this misunderstanding, rather than the law itself, that is currently causing injustice.285

Myths and misconceptions about family violence

5.56The FVDRC identifies the need for a conceptual shift to reframe family violence. It identifies a number of myths or misunderstandings about the nature of family violence, including that family violence:

5.57Other common myths and misconceptions include the belief that the victim’s fear of future violence or the consequences of leaving a violent relationship is irrational or unreasonable; a person’s cultural background or language is no barrier to accessing help; if a victim stays in a relationship or returns to a relationship, the violence can’t have been that bad or the victim must have been partly to blame; and if the victim was violent as well, their fear was not real.289 On the last point, we note the importance of the predominant aggressor/primary victim analysis adopted by the FVDRC and discussed in Chapter 2 above.

Myth 1: Family violence is limited to physical assaults

5.58The FVDRC identifies that intimate partner violence (IPV) is still often understood as physical assaults that occur within an intimate relationship. However, as we discuss in Chapter 2, family violence is not just a series of one-off incidents of physical or sexual abuse. It usually involves a combination of physical, psychological, emotional, social and financial abuse.290
5.59The FVDRC argues that the tendency to focus on individual acts of physical assault overlooks the broader dynamics often involved in family violence and can minimise the seriousness of coercive control, discussed at paragraph 2.56.291 It can also mean that some practitioners and members of the public are not attuned to the danger posed by possessive and controlling partners.

Myth 2: Family violence is less serious than stranger violence

5.60The FVDRC found that some still viewed family violence as “just a domestic”, minimising the serious impact of the abuse by relegating it to “household affairs”.292
5.61Not only does this normalisation of family violence seriously misunderstand the impact on victims, it also impacts on family and whānau members’ perceptions of how serious the situation is and the need for intervention. Evidence suggests that beliefs held by family, friends and the wider society about violence and victimisation make it harder for victims to seek help and leave violent relationships.293

Myth 3: Family violence is a series of discrete incidents, and there are opportunities to address the abuse or leave the relationship between incidents

5.62The FVDRC identifies that family violence is frequently understood and responded to as a series of incidents. In between these incidents, it is assumed that the victim is not being abused and that there are opportunities to address the abuse or leave the relationship.294
5.63This misunderstands the fact that family violence is more likely to be a cumulative pattern of harm, as described at paragraphs 2.54–2.55, and that there is a corresponding cumulative and compounding impact of abuse on the victim – which in turn increases their vulnerability.295
5.64In 2008, a survey on individual attitudes, values and beliefs about family violence was conducted for the Ministry of Social Development. While 98 per cent of respondents to that survey agreed that a woman can feel scared of a violent partner long after the last violent incident, 67 per cent of respondents also believed that a woman who is beaten by her partner just needs to leave the relationship to be safe.296
5.65However, contrary to the common assumption, it is often very difficult for a primary victim to safely leave. Family violence can be an individual, structural and collective form of entrapment.297 The FVDRC found evidence of many primary victims going to considerable lengths to try to protect themselves and their children, and yet many women experienced difficulties in leaving a violent relationship. Fifty per cent of IPV deaths took place in the context of a planned or actual separation.298

5.66Understanding the limitations on a defendant’s ability to seek help or leave a violent relationship will be of significant importance where self-defence is claimed. Jurors may find it difficult to understand why a person who has been subjected to abuse might have remained in an abusive relationship or resorted to lethal force without seeking outside help.

Adducing evidence of family violenceTop

5.67The social context of any homicide is communicated to the jury through the evidence that is introduced by the prosecution and the defence. This evidence can include:299

5.68Expert evidence is of particular importance in addressing any myths and misconceptions about family violence that may be held by jurors.

5.69Section 7 of the Evidence Act 2006 provides that all relevant evidence is admissible except where it is expressly deemed inadmissible or excluded by statute. Section 25 of the Evidence Act provides that expert opinion evidence is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence.

5.70We are not aware of any serious concerns regarding the operation of the Evidence Act in these circumstances or the ability to have such evidence introduced. However, we are aware anecdotally that introducing expert evidence to address common myths and misconceptions about family violence is rare. A defendant’s counsel may not identify the relevance of such family violence evidence, either because the defendant does not disclose the extent of the violence or because the counsel do not themselves appreciate the need for such evidence (for example, assuming the jury will have a common understanding of family violence, therefore seeing no need for expert evidence).300 There may also be funding constraints on introducing expert evidence. We understand the vast majority of homicide defendants rely on legal aid funding, and we are aware anecdotally of issues with obtaining approval for funding for expert witness evidence through the legal aid system.301 Finally, evidence may be excluded by the court if there is a risk of unduly extending the length of the trial, although we are not aware of any instances of this occurring in practice.

5.71We would welcome feedback on this particular issue, including any personal experience of problems around these issues.

question

Q6 Do you consider there is a need to improve understanding of the dynamics of family violence by those operating in the criminal legal system?

Q7 Do you consider there are currently problems with introducing family violence evidence, including expert evidence, in criminal trials?

284The same conclusions in Australia have resulted in recent recommendations/legislative change aimed at improving community understanding of family violence when victims of family homicide commit homicide and claim self-defence (most recently Victoria, in 2014, and Tasmania, in 2015). These changes are discussed in Chapter 6 below See: Victorian Parliamentary Debates, Legislative Assembly, 20 August 2014, 2835. Tasmania Law Reform Institute, above n 251, at 58.
285Toole, above n 224, at 252.
286Family Violence Death Review Committee, above n 2, at 71.
287At 77.
288At 78–80.
289Victorian Law Reform Commission, above n 16, at 161–169.
290At 161.
291Family Violence Death Review Committee, above n 2, at 71.
292At 77.
293Fleur McLaren Attitudes, Values and Beliefs about Violence within Families: 2008 Survey Findings (Ministry of Social Development, Wellington, 2010) at 14.
294Family Violence Death Review Committee, above n 2, at 78.
295At 78–79.
296Fleur McLaren, above n 293, at 14.
297Family Violence Death Review Committee, above n 2, at 81.
298At 80.
299Victorian Law Reform Commission, above n 16, at 130.
300At 181.
301Underfunding is also identified as a challenge to counsel’s effectiveness in challenging expert evidence. See: Emily Henderson and Fred Seymour Expert Witnesses under examination in the New Zealand Criminal and Family Courts (New Zealand Law Foundation, March 2013) at 20.