Self-Defence and the Effects of Family Violence: An Issue of Substantive Law or Judicial Application

Abstract

In August 2011, a New Zealand High Court jury found Natalie Ford not guilty of murder, for the killing of partner Gary Marshall. Ford had stabbed Marshall in the chest during a period of intense physical abuse in which he had threatened to kill her, before snapping her phone in half to prevent her calling the police. Ford’s acquittal on the grounds she was acting in self-defence was celebrated as showing “the level of understanding people now have for the situation abused women find themselves in.” Outcomes such as this one, however, should not distract from the fact there is one type of situation abused women find themselves in which is still yet to be resolved. It is still unclear whether self-defence may be successfully pleaded where a battered defendant has killed an abusive partner in the face of harm that is not objectively imminent, yet she has subjectively perceived that force is necessary. The recent abolition of provocation means that self-defence will often be the only possible defence in these cases. In light of this, the question of whether it can ever be justifiable for a battered woman to kill her batterer when she is not in “immediate” danger requires re-examination. This paper sets out to provide an update on the applicability of self-defence for defendants whose perceptions are affected by their experiences of family violence. In consideration of recent legal developments, combined with the legislature’s reluctance to amend the current law, I pose the question of whether substantive legal reform is the best avenue for accommodating such cases.