Law Commission to review non-fatal strangulation and homicide by victims

Justice Minister Amy Adams has asked the Law Commission to review how best to respond to non-fatal strangulation, and homicide by family violence victims. Selected relevant research is listed below.

The review is being conducted in response to recommendations made by the Family Violence Death Review Committee (FVDRC) in their fourth Annual Report (2014). The Law Commission review will create two new references on family violence: "Non-fatal strangulation as a separate crime" and "Victims of family violence who commit homicide".

Non-fatal strangulation as a separate crime

The FDVRC report highlighted non-fatal strangulation as an important lethality risk indicator and "a red flag for future serious abuse and fatality." The report recommended the government consider an amendment to the Crimes Act to include non-fatal strangulation as a separate crime under Part 8 of the Crimes Act 1961.

The reference by the Law Commission will consider the rationale for establishing a separate crime of non-fatal strangulation, what the elements of the offence and penalties may be, and whether there may be other legislative or operational options which would better address the proposed crime. The reference will focus on the creation of the new crime in the family violence context and will not consider the general law of assault or strangulation unless considered necessary.

Judge Peter Boshier, lead Commissioner for the reference said "the act of non-fatal strangulation is a well-known indicator of future serious family violence. A number of comparable countries have already implemented a specific crime of non-fatal strangulation. The Law Commission will review if a separate crime can be a tool to reduce future family violence."

Victims of family violence who commit homicide

The FDVRC report found "New Zealand's criminal justice system is out of step internationally in the way it responds when the victims of family violence kill their abusers." The report highlighted the restrictive use of the defence of self-defence and the abolishment of the partial defence of provocation in 2009. It said, "As a result, the primary victims of extreme, long-term abuse can end up serving long prison sentences for murder, rather than having their victimisation recognised by the justice system." The report recommended a re-examination of the options for amending the defence of self-defence, as well as introducing a targeted partial defence to murder.

The reference by the Law Commission will consider whether the test for self-defence be modified to be more readily assessable for victims of family violence charged with murder, whether a partial defence for victims of family violence charged with murder is justified, and in what circumstances, and whether current sentencing principles reflect the circumstances of victims of family violence who are convicted of murder. The reference will include a review of recent New Zealand cases and an assessment of overseas experience and best practice.

Wayne Mapp, lead Commissioner for the reference said "the self-defence argument was easily invoked when an attacker was actually advancing on their victim." Yet, "in some cases a battered person could kill a partner when there was no immediate threat but when fear persisted that another attack was building and could be fatal."

Director of Client Services at Shine, Jill Proudfoot, said "There's been some situations that have arisen that have been profoundly unjust on the person who committed the homicide because she had come to the stage that she was so terrified that she couldn't see another option. Then their children not only lose their father to homicide, but their mother to imprisonment. But the intention of the woman was to protect her children, rather than to further harm them."

The Law Commission will be supported by an Experts Committee for both references and will also consult with targeted agencies such as Police, the judiciary, the Ministry of Justice, the Family Violence Death Review Committee and the New Zealand Law Society.

Family Violence Death Review Committee Chair and Associate Professor of Law Julia Tolmie said many New Zealanders have no experience of life without family violence. She said "Children are conceived and born into families that already have a dangerous level of abuse. If we are to be serious about addressing the unacceptably high incidence and seriousness of family violence in New Zealand, we need to take responsibility for victims’ safety rather than expecting them to keep themselves safe."

The work complements the wider range of family violence work the Ministry of Justice is undertaking.

The Law Commission is due to report back to the Minister of Justice on 31 March 2016.

Further research and resources:

‘His home is his castle. And mine is a cage’: a new partial defence for primary victims who kill (Wake, 2015)

Securing fair outcomes for battered women charged with homicide: analysing defence lawyering in R v Falls (Sheehy, Stubbs & Tolmie, 2014)

Battered women charged with homicide in Australia, Canada and New Zealand: How do they fare? (Sheehy, Stubbs & Tolmie, 2012)

Defences to homicide for battered women: A comparative analysis of laws in Australia, Canada and New Zealand (Sheehy, Stubbs & Tolmie, 2012)

Non-fatal strangulation is an important risk factor for homicide of women (Glass, Laughon, Campbell, et al, 2008)

"And Then He Choked Me": Understanding, Investigating, and Prosecuting Strangulation Cases (The National Center for the Prosecution of Violence Against Women; Turkel, 2007)

In the United States, No Selves to Defend is a project focusing on the criminalisation of women for self-defence (particularly women of colour).

Media

NZ not ready for strangulation prosecutions, Radio NZ, 18.02.2016

Minister requests Law Commission family violence investigations, NZ Law Society, 20.07.2015

Self-defence plea review 'overdue', Radio NZ, 17.07.2015

Two new references in the family violence area, Press Release: Law Commission, Scoop, 16.07.2015

Homicide laws under review for family violence victims, NewsTalkZB, 16.07.2015

Law Commission review aims to reduce family violence, 3 News, 16.07.2015

Self-defence pleas in domestic violence killings, Radio NZ, 16.07.2015

Legal support for provocation defence, Radio NZ, 26.06.2015

Image: My Trusty Gavel by Brian Turner. Licence: Creative Commons Attribution 2.0 Generic (CC BY 2.0)