Also published as Parliamentary Paper E 3173

This Law Commission report stems from criticism that the existing legal defences are failing to protect those who commit criminal offences as a reaction to domestic violence. The report summarises findings resulting from submissions to the Law Commission's Preliminary Paper 41, "Battered Defendants: Victims of Domestic Violence Who Offend", released as a discussion paper in 2000. It looks at the definition of 'domestic violence' according to the 1995 Act of that name, and 'battered woman syndrome'. It recommends that legal reference to 'syndromes', including that relating to battering relationships, be dropped in favour of reference to the nature, dynamics and effects of those relationships. The paper then discusses the way the law has previously dealt with such cases, emphasising the responsibility the judge has for clear direction relating to linkages in expert evidence of battering relationships, and the responsibility defence counsel has to explore issues of domestic violence and to call expert evidence when necessary. This is followed by a discussion of 'self-defence' and 'reasonable force', in which it is recommended that s48 of the Crimes Act (1961) be amended to clarify 'that fact' situations exist where force can be seen as reasonable where danger is not imminent, but is inevitable. It further recommends that a new subsection be added to s48 to the effect that the threshold for allowing 'self-defence', ie the question of 'reasonable force', go to the jury. The report very usefully clarifies and sets out the types of expert evidence relating to the social context, nature and dynamics of domestic violence that may be vital to a case, including: an understanding of why people remain in battering relationships; the dynamics of battering relationships; evidence on separation assault; defendants' experiences of seeking protection; the defendants' cultural group; the battered woman's ability to 'read' her partner and the danger signals; and the psychological effects of battering. The report then discusses a number of alternative proposed 'partial defence' concept options for battered defendants operating in other jurisdictions: 'excessive self-defence', 'self-preservation', an extended form of 'self-defence' proposed by the Western Australian Task Force on Gender Violence, 'tyrannicide', and 'diminished responsibility'. It does not recommend these as options for the New Zealand judicial system. The report also looks at the partial defence of 'provocation' and the fact that it has been used successfully as an excuse for domestic violence against women. It recommends that this should be abolished in favour of matters of provocation being taken into account in the exercise of sentencing discretion for murder, which it also recommends replaces the mandatory life sentence currently in operation in New Zealand. 'Compulsion' and 'duress', by treat, or of circumstances, are also reviewed in relation to domestic violence. Appended to the report is an informative overview entitled "Battered Heterosexual Men, Gay Men and Lesbians", which discusses methodological issues relating to the study of female to male violence such as use of the Conflict Tactics Scales, and looks at violence in gay and lesbian relationships.

nz