The commission’s report on family violence laws, requested by the Government, has recommended lowering the threshold for self-defence to help women who “have endured years of trauma and abuse”.
In its report, the Law Commission said New Zealand had the highest reported rate of family violence in the developed world.
The commission has recommended changing the law to state that self-defence can apply when a person is responding to family violence – even when the threat is not “imminent”, as currently must be the case.
Lead commissioner Dr Wayne Mapp said there were some “deeply-held myths” about family violence, such as that those being abused could simply walk away.
“The reality is family violence in many cases is part of an ongoing, sustained, vicious pattern of violence that traps the person.
“That entrapment means she cannot leave, and that then means she ultimately, for fear of her life, or that of her children, sees no other way out but to defend herself with lethal force.”
Mapp said New Zealand’s self-defence laws were “out of step” with countries like the UK and Australia, and there was “ample evidence” that women convicted here of manslaughter or murder should have been acquitted for acting in self defence due to family violence.
He did not believe changing the law would lead to people using family violence as an excuse for premeditated murder, saying it would be up to juries to decide whether a self-defence claim was believable.
The law change could allow a woman to kill her sleeping partner and claim self-defence, if she made a “believable” case of family violence.
“Such a claim would only be successful if it existed in the context of a sustained long period of family violence, and if you didn’t do that then, the next thing going to happen to you is that you were going to be killed instead.”
I think the Government has to be very careful here.
First of all I agree that it is not as simple as saying that women should simply leave men who abuse them. That is absolutely the right thing to do, but doing so can be incredibly difficult, and in fact dangerous.
However we need to be careful that we do not create an incentive that it is an easier choice to kill your partner rather than leave them.
I’d be more comfortable with someone being able to get a reduced sentence or lesser conviction, rather than a total exoneration.
The other aspect that concerns me is that while there are sadly many many people who do get abused by their partners, you may create an incentive for someone who kills their partner, to falsely claim they were abusing them, and hence it was self defence. And as the partner is dead, you don’t get their side of the story.
So while I can agree the status quo is not great, I think significant caution is needed before extending the definition of self defence beyond imminent danger.