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Love, honour and provoke

Sally Simmonds

 As the church is subordinate to Christ, so wives should be subordinate to their husbands in everything.

St. Paul in Ephesians 5:22

 

My mother has long maintained that women provoke men to violence against them in the home by not honouring the ‘obey’ portion of their vows. Most people, religious or not, male and female alike, continue to have some sympathy for this view that remains at the heart of the Western heterosexual contract, largely because no law or public policy has explicitly overturned it. Western wives might now hold various human rights, but these abstract rights have consistently failed to provide women within marriage with any real protection against the infringement of the most basic human right: the right to freedom from violence.

On the contrary, the institution charged with upholding these rights, the rule of law, has consistently and brazenly reinforced the rights of wife beaters and killers to react violently when their wives (partners) do not fully submit to their will. Through the law of provocation wife beaters who eventually kill their victims in New Zealand, into the twenty-first century, have been believed and partially excused even the most brutal violence by claiming they were provoked to kill. In one 1998 case, the court accepted that the killer was provoked to homicide when his victim called the police to report a severe beating the previous day, having – according to him – promised not to (R v Tepu). In a 2004 case, the killer with a long history of wife abuse, who lay in wait for his estranged wife with a petrol can and when she arrived, doused her with it and set her alight, watching her burn to death while still standing, the judge allowed as a mitigating factor that the killer had done ‘more than his fair share of domestic chores’ (R v Tapsell).

By stark contrast, for abused women who kill their abusers, provocation has rarely been successful. It is rare for a New Zealand court to accept that a battered woman who kills her abuser after a long history of suffering his abuse was provoked by fear of further violence to do so. So in 1995, a woman who killed her estranged husband with an overdose of sleeping pills after ten years of him terrorising and threatening to kill her and their children, many protection orders served – and ignored – and many more thwarted efforts on her part to escape his violence and enlist the help of the police for protection, was convicted of murder and sentenced to life imprisonment (R v Oakes).

As far as believing this battered woman was acting in self-defence in fear for her life and the lives of her six children, a plea she also put to the court, judge and jury alike barely considered it seriously. One of the many things that worked against a self-defence plea was her history of resourcefulness in managing to escape her abusive husband before. Why couldn’t she pack up her young children in the dead of night – with him in the house that he had broken into – and run to Women’s Refuge before moving towns – again?

 

The law claims to be an impartial adjudicator of our actions, treating all equally and without prejudice. Its claim to impartiality in such criminal cases rests centrally on the notion that a lay jury can decided between full, partial or non-culpability for reasons of self-defence, by applying their neutral, non-prejudiced ‘common sense’ understanding of what ‘the reasonable person’ would have done in the circumstances of the case. But on the evidence, when it comes to deciding what men and women deserve and reasonably do to each other in their relationships, in or out of court, there is clearly no such neutral ‘common sense’. Rather, there is overwhelming evidence that the prejudice of the ages in thinking wives are rightly subordinate to husbands, continues to produce assessments of who is to blame for domestic violence that rely on a profoundly partial, nonsensical and unequal gender bias.

As the law and its practitioners cannot or will not explicitly expose and challenge this bias, preferring to stubbornly maintain in the face of all evidence to the contrary, the law’s capacity for rigorous impartiality, I remain deeply sceptical that any formal change to the terms of the legal defences brought to judge domestic homicide cases will do much if anything to improve the justice meted out to the victims of domestic violence, whether they kill or are killed. Thus, I am sceptical that the recent recommendation by the Law Commission to consider lowering the threshold for self-defence in cases where battered ‘persons’ kill their abusers, presuming it does pass into law, which is unlikely based on past recommendations of the kind, will improve the justice system’s response in these cases.

For decades, feminists in all common law countries have shown, with extensive and painstaking research, as clearly as can be shown, that battered women who kill their abusers are invariably acting in self-defence, in fear for their lives and the lives of their children. For their troubles they have been called sexist by submitters to the review process who claim, with shamelessly unfounded research, that women are just as violent as men within the home and our laws of punishment already favour women, claims that have successfully thwarted previous attempts by the Law Commission to make the law fairer for battered defendants.

Beyond the obstacle of cultural bias infecting every step of the criminal justice process, there is the basic problem of devising laws that apply equally to men and women, as the first requirement of our formal legal system demands. As the law was devised by men for men, this requirement invariably tries and fails to fit women’s experiences into laws devised for people who aren’t women. Self-defence is one such law, as was the law of provocation, until it was finally exposed and repealed in 2009 thanks to one particularly horrifying case of domestic homicide and one exceptionally canny legal practitioner. But removing the provocation defence has left those women who strike back with even less legal recourse than they had, in theory, before. If the law doesn’t work for men then it cannot be allowed to work for women, so says the rule of equal legal treatment for all.

Similarly, if the threshold for self-defence in contexts of domestic violence has to be lowered for all people, it almost certainly won’t be lowered, because cautious legal folk will not want to allow abusive men access to such a law. Indeed in response to the present review recommendation, Tony Bouchier, the president of the Criminal Bar Association, has already expressed the concern that: ‘There might be a person in a domestic situation who decides they no longer want their partner and set all their ducks in a row to avail themselves of that defence.’ As women in domestic violence situations struggle to keep their teeth all in a row, never mind their ducks, I can only think Bouchier, who knows this all too well, is not thinking of battered women but abusive men, who have had such success in the past claiming she made me do it.

I hope I am wrong.

 

For further analysis, I warmly invite you to read my PhD thesis: https://researchspace.auckland.ac.nz/handle/2292/3429

See also: http://www.academia.edu/1523524/Romantic_and_Real_Life_Relationships_in_Criminal_Law_Reconstructing_Red_Flags_for_Dangerousness_Lethality

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Sally Simmonds
About the author

Sally Simmonds

Sally’s PhD thesis: Justice in Context. Judging Battered Women Defendants: A New Zealand Case Study (University of Auckland, 2009) is an attempt to broaden the terms of debate about how we translate – and fail to translate – justice principles into just outcomes for the victims of domestic violence who kill. Losing faith in this attempt, Sally has since turned to creative writing. The Grass Was Always Browner, written under the name Sacha Jones, is the first volume of her three-volume farcical childhood memoir. It was published in May 2016 by Finch, Sydney.