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1. Introduction

1 DOMESTIC VIOLENCE IS A MAJOR SOCIAL PROBLEM in New Zealand,[1]

as it is in other countries. In recent years there has been increasing criticism that battering relationships have not been well understood by the community or the legal profession.[2] It is said that some existing legal defences have not been available to some defendants who claim that their offending arose out of their situation as battered women.[3] It is further said that the existing defences should be reformed and that new defences are needed.[4] There have been calls for the convening of a royal commission of inquiry to consider the issue as part of a review of the criminal justice system.[5]

2 In response to these concerns, the Law Commission has undertaken a project to look at how the law applies to those people, whether male or female, who commit criminal offences as a reaction to domestic violence inflicted on them by their partner. Most of the research in this area is about women battered by male partners. The project will focus particularly, but not exclusively, on this paradigmatic battering relationship. Our terms of reference, approved by the Minister of Justice, are to:

(1) examine how the existing New Zealand law applies to those who commit criminal acts in circumstances where they are victims of domestic violence, in particular, the defences of self-defence, provocation, duress and necessity;

(2) consider developments and proposals in other jurisdictions, in particular, the defences of self-preservation, diminished responsibility and judicial discretion in sentencing for murder;

(3) make proposals for reform, if appropriate.

The Minister asked that the discussion be related to the Evidence Code and cover the latest scientific thinking on battered woman syndrome.

3 There are two principal aspects to the debate on battered defendants. The first is whether battering may induce a psychological state, known as battered woman syndrome, which causes battered women to have beliefs and to exhibit behaviour different from those of the ordinary (non-battered) person. This aspect is important because while battered woman syndrome is not in itself a defence, evidence about the syndrome has been admitted at criminal trials both to explain the behaviour of battered defendants and to support their claims to one or other of the legal defences.

4 The second aspect is whether the law applies fairly to battered defendants. Commentators have argued that some legal defences are gender biased, being based on the experiences of men.[6] For example:⁷

The general defences of provocation and self-defence available to ... women defendants have all been developed on the basis of male experiences and definitions. This is hardly surprising given the overwhelming proportion of men among the judiciary and legal profession. By a process known as legal method, these men determine what facts should be considered as relevant and what facts should be dismissed as irrelevant. Since the experiences of women would normally fall outside those of men, facts based on their experience are likely to be dismissed. Contributing to this male-gendered definition of criminal defences is the fact that a large majority of cases coming before the criminal courts involve male defendants. Accordingly the courts would feel perfectly comfortable in pronouncing the law to meet the experiences of these defendants. The resulting distortion occurs when women defendants seek to rely on these defences. The women are confronted with the prospect of either failing to plead them successfully, or having to distort their experiences in an effort to fit them into the defences.

5 We begin with a discussion of battered woman syndrome. We conclude that, while there is disagreement about the existence of a psychological syndrome specific to battered women, domestic violence may nonetheless affect the victim in ways that are forensically relevant. Therefore, expert evidence concerning the psychological, social and economic aspects of domestic violence will often be relevant in cases involving battered defendants.

6 We then examine several legal defences as they apply to battered defendants. Our discussion of the defences divides logically into two parts. In the first, we consider defences that are relevant to the battered defendant who kills or assaults the batterer. These are self-defence, the partial defences (provocation, excessive self-defence and diminished responsibility)[8] that reduce murder to manslaughter and several proposed new defences. We also consider the possibility of introducing a sentencing discretion for murder. In the second part of the discussion, we consider defences that may excuse offences against third parties: compulsion and necessity.

7 We do not propose to attempt a comprehensive review of the legal defences. Our concern is to ask whether the legal defences apply equitably to battered defendants. We conclude that some reform is needed. A number of options are discussed. We do not at this stage express a preference for any particular proposal.

8 Our approach throughout this paper is that domestic violence does not justify or excuse retaliatory killing or wounding any more than does non-domestic violence. Generally, the law does not allow victims of violence to take the law into their own hands. In this respect, victims of domestic violence are no different. But the law recognises that there are extraordinary situations where retaliatory violence may be justified or excused. These situations give rise to the legal defences. If aspects of a defence work against battered defendants, that is not in itself evidence of unfairness. It would only be unfair if the motivation and circumstances of the offending fall within the reasons for allowing the defence, but the offenders are unable to avail themselves of the defence because of the way the defence is constructed.

9 We have drawn extensively on the work of others, in particular the Criminal Law Reform Committee, the Crimes Consultative Committee and the

New South Wales Law Reform Commission. A select bibliography is appended.