Killing to Survive: How New Family Violence Laws Still Fail New Zealand’s Abused Women

Our TV Channel VICELAND is coming to New Zealand on Thursday, December 1. VICE has teamed up with feminist activist and writer Gloria Steinem to make the revolutionary show WOMAN, which explores how violence against woman drives global instability. Sadly, it's an issue that's way too familiar to us in New Zealand. On International Day for the Elimination of Violence Against Women, we take a look at recent family violence law changes, and what they mean to women with no option but to kill.

New Zealand's family violence statistics are the highest in the developed world. From what we know, just under half of all homicides committed in New Zealand are by an offender who is a family member of the victim. One in three women in New Zealand experience sexual or physical abuse at the hands of their partners. 101,981 family violence investigations were recorded by the New Zealand Police in 2014 (the latest figures), yet 76 percent of family violence incidents aren't even reported to Police—so the unofficial numbers are much, much higher. The point is this: we have a massive crisis of domestic violence in this country that has for too long been left to ferment.

In September, Prime Minister John Key announced a long-awaited overhaul of the Domestic Violence Act 1995—the main legislation governing domestic violence and protecting women from abuse. (In 93 percent of cases when domestic violence results in death, women are the victims.)

The point of the incoming law reform is to keep victims safer through a collection of means: earlier and more effective interventions, shifting focus to changing the offender's behaviour, making non-fatal strangulation a serious offence and better risk identification and recognition of family violence and so on.

Those changes all may seem a bit obvious and common sense—but you'd actually be surprised how long overdue they are and for how many years various expert bodies have been lobbying the Government to make them. But those changes might not be enough. They still fail a very particular category of victim of domestic violence: the one who becomes so entrapped that she either has to kill her abusive partner, or be killed.

The Family Violence Death Review Committee found in their 2014 report that in the 10 out of 15 cases that year where women were the offenders, it was in response (or suspected to be in response) to a long history of family violence. Right now, whenever a woman kills her abusive partner in self-defence (the report states in 80 percent of cases she uses a knife), she's staring down the barrel of a sentence for murder. Juries will sometimes downgrade this to manslaughter on account of battered women's syndrome. In only four cases in New Zealand's history—where someone actually saw the killing and the man attacking her—did the women walk without a conviction.

This is where it gets complicated: most of the time when battered women kill in self-defence, it's not when their abuser is attacking them at that instant, and it's usually when they're alone. That's the key difference between those who walked out of the court uncuffed and those who lose their children to child welfare services and decades of their lives in the cells: those who end up in jail are there because the courts did not believe that the women were 'actually' acting in self-defence.

The genesis of modern self-defence law emerged in Roman times as a sort of break-in-case-of-emergencies type exception to the general rule of not, you know, casually killing or assaulting people. Which is fair enough considering the sanctity of life etc. The only problem is the way it's conceptualised.

The current way of looking at self-defence is fundamentally flawed in relation to domestic violence because—as Julia Stubbs and Julia Tolmie point out in their essay Battered Woman Syndrome in Australia: A Challenge to Gender Bias in the Law?—"it was developed to reflect the necessity of defensive force in one-off, violent confrontations between two male strangers, but it excludes battered women as most kill during a lull in the violence, or they arm themselves before the abusive partner's attack begins."' The Family Death Review Committee found that they usually attack then because it just makes more sense: women are generally physically weaker or smaller than their partners and believe leaving won't protect them from the threat.

The reason why the courts don't like expanding their scope is that judges think the necessity of self-defence expires if the abusive partner's attack isn't immediate—that the attack becomes avoidable and that the women had other reasonable options than to kill. In fact, leaving the relationship actually escalates the violence or risk of death. The American researcher Jacquelyn Campbell found that women who end their relationship with a highly controlling abusive partner are nine times more likely to be killed than other abused women. In New Zealand, 50 percent of the intimate-partner-violence deaths took place in the context of a planned or actual separation.

Part of the issue is victim blaming, the same type which also pervades rape law. A belief that if the woman stays in the relationship or doesn't take "appropriate" steps to avoid it the abuse is her fault. A judge told Patricia Erica Paton, a Gisborne woman who killed her partner on Valentine's Day in 2012 by stabbing him in the neck, "Until women in relationships like yours… unconditionally reject domestic violence, sadly such situations will contribute to the continuation of utterly needless crime…" His judgment is one big victim-blaming rant. "You have never made a complaint or, it seems, sought any intervention to stop the violence in the relationship. Instead, you hit back as best you could. I am bound to say those attitudes are seriously wrong…"

Yet the way the law looks at domestic violence is seriously wrong. Domestic violence is a form of entrapment and coercive control that is both psychological and environmental. Evan Stark, a family-violence expert, wrote, "Abused women are groomed and subordinated through longstanding abuse to become socially isolated, their financial resources are removed and continual abuse leaves victims unable to contemplate how they could even try to leave the relationship."

Psychological entrapment is usually compounded by years of trauma. At the time of stabbing her partner, Jacqueline Elaine Wihongi was suffering from a combination of post-traumatic stress disorder, anxiety and depression from years of abuse and rape. At the age of 13, Wihongi suffered a drug overdose which left her mentally impaired. Around the age of 14 she began a relationship with her future abusive partner's older brother, during which he prostituted her for drugs and money. During her subsequent 17-year-long relationship with her partner, who was associated with the Black Power gang, she was violently abused by her partner and gang raped by Black Power.

The Family Violence Death Review Committee found women are further entrapped by their particular socio-economic and cultural contexts—potential language difficulties, lack of knowledge of their rights, their possible gang affiliations (which makes it near impossible to call the police) or a mistrust of police due to previous negative experiences. These contexts practically limit their ability to get help, but are entirely ignored by the law.

The new law changes will help a lot of abused women, but until the law stops treating self-defence in a gender-biased way, ignoring the lived realities of women's lives, the most desperate of abused women will continue to suffer.

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