Slipping Through The Cracks: How The Distinction Between Compulsion And Duress Of Circumstances Fails Battered Defendants

Abstract

Feminist critique of criminal defences has largely focused on the inaccessibility of self-defence to victims of domestic violence who go on to offend. Yet these battered defendants also struggle to access duress-based defences, despite being subject to duress in many aspects of their lives. New Zealand's duress-based defences of compulsion and duress of circumstances are no exception to their struggle. This essay argues that the inaccessibility of these defences for battered defendants stems from two key issues. First, applying a social entrapment understanding of domestic violence, the defence of compulsion is overly restrictive. Second, this essay finds that the human versus non-human distinction between compulsion and duress of circumstances is divorced from these defences' jurisprudential basis of moral involuntariness. These issues have created a crack between the defences – that where the threat is human sourced, it is 'compulsion or nothing' – which battered defendants are slipping through. Canadian and Australian law, while also flawed for battered defendants, have made progress in recognising their lived experiences. These jurisdictions illustrate two possible approaches for reform in New Zealand. This essay finds New Zealand should adopt a statutory solution to the gap, and upon analysing key considerations for reform, offers draft wording for a proposed new defence of coercion which it is envisaged may better encompass the lived experience of battered defendants.