Following the column by Fiona McNamara in last week’s Salient regarding provocation, I have taken the opportunity to draw upon another injustice of our legal system when it comes to women in abusive domestic relationships: self defence. While admittedly less abhorrent than provocation, amendment of the defence is necessary, as unjust outcomes are often created.
The difficulties are best expressed via one of New Zealand’s leading authorities on the issue, R v Wang. The name may be mildly amusing, but the outcome of the case—symbolic for so many of a similar nature—is not.
The facts of the case were as follows. Xiao Jing Wang was charged with the murder of her husband, Jing Wah Li. In the hours preceding the murder, her husband had become drunk and abusive, and had called a member of Xiao’s family to blackmail money out of her. He threatened to kill Xiao, her sister, and another member of her family currently staying at the house if they did not comply. He fell unconscious from intoxication soon after.
Xiao had been subjected to years of horrific physical and mental abuse from Jing Wah. She had absolutely every reason to believe his threats were true. Like many battered women, she had developed a condition of “learned helplessness”, which prevented her from perceiving or acting on opportunities to escape from the violence. She was suffering from severe post-natal depression. Both the psychiatrist and the trial judge agreed that at the time, she was utterly convinced that the threats would be carried out when her husband woke, and that she could see no alternative in her mental state other than to kill her husband in her own defence and that of her family. She stabbed him with a knife while he was unconscious.
The judge, however, decided to withhold the defence from being put to the jury because he considered, as was within his power, that no jury could properly regard the actions of the defendant to be that of self-defence. Self-defence requires that the use of force applied is reasonable in the circumstances of the case. To be reasonable, the threat must be imminent (that is to say, there must be a lack of alternative options available) and the response proportionate.
As outlined in last week’s column, battered defendants who have been subjected to long-term abuse rarely act in response to an immediate threat. Rather, they will remain submissive in the relationship for sustained periods of time in a state of “learned helplessness” until something (often seemingly meaningless) causes them to finally react in their own defence.
However, despite accepting that Xiao was unable to foresee any alternative to her actions, the fact that alternatives existed was enough to deny her even the chance to have self-defence considered by the jury. The judge argued that she could have gone to the police while he was asleep—despite having said in the same breath that the possibility did not, would not—indeed could not have crossed her mind as reasonable. These “alternatives”, according the the judge, moreover rendered her pre-emptive strike disproportionate.
The requirements of the defence do not reflect the experiences of battered defendants. The kind of danger battered women face is on-going violence rather than a one- off incident. Moreover, the nature of the relationship reinforces the idea that seeking alternatives will result in future consequences—police protection, for example, is only of use to battered women for the short length of time they physically remain within the presence of the police. The threat of violence is ongoing.
Reform has been considered by the Law Commission, who recommended in 2001 that rather than requiring a danger to be imminent, the danger ought to be inevitable (in the mind of the defendant). This recommendation would be a welcome step in the right direction. It has, however, thus far, been largely ignored by the legislature.
The law is gender biased. While it may provide protection to many people, it does not help the most vulnerable. The cruel irony is that, had Jing Wah woken as Xiao was about to strike, he himself could have killed Xiao and been afforded the exact defence that was denied to her.