PATTERNS OF VIOLENCE IN INTIMATE RELATIONSHIPS A CRITICAL EXAMINATION OF LEGAL RESPONSES By Judith Buckingham ________________________________________________________________ Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy ________________________________ School of Law University of Canterbury Christchurch, New Zealand 2006 TABLE OF CONTENTS Page PART I 1 Chapter One: Introduction 2 Introduction: The Research Context 2 The Social Framework of Domestic Violence 5 The Social Framework: Red Flags for Dangerousness/Lethality 5 Repeat Victimisation 7 Separation 9 Threats to Kill 11 Possessive Behaviours and the Theme of Control 11 Stalking 12 Prior Violence toward Previous Partners 12 Forced Sex 13 Suicide Threats 13 Seeking Help from Formal and Informal Sources 14 Victim's Fear of Abuser and Premonitions of Death 15 The Present Research 16 Aims and Benefits of the Research 17 Conclusion 18 Chapter Two: Theory, Method and Overview of Data 20 Introduction 20 Barriers to Research on Violence Against Women 21 Inadequate Data Collection and Monitoring of Violence against Women 21 Difficulties Accessing Legal Reports and Court Records 24 The Nature of the Material and its Cultural Consumption 26 The Present Research 29 Issues of Naming and Confidentiality 29 Domestic Violence Homicide: Issues of Classification and Definition 29 The Research Method 32 Caveats and Qualification 34 Missing Data 34 Page The Newspaper Reports 35 The Legal Reports 37 The General Femicide Sample 39 The Intimate Partner Homicide Sample: Basic Incident and Relationship Data 41 Gender 42 Race and Income 42 Employment Status 43 Geographical Area 44 Nature of Victim/Offender Relationship 44 Age of Victims and Offenders 45 Method of Killing 46 Homicide Location 46 Prior History of Violence 47 Separation/Estrangement 48 Involvement of Third Parties 48 Child Witnesses 50 The Sub-Lethal Domestic Violence Sample 51 Gender 51 Race and Ethnicity 51 Separation/Estrangement 52 Protection Orders 52 Comparison of Charges with Official Data 53 Types of Violence by Gender 53 Conclusion 54 Chapter Three: The Social Framework - Red Flags & the Theme of Control 55 Introduction 55 The Samples: A Preliminary Comparison 56 Polk's Research 56 The Present Research 57 The Male Proprietariness Thesis 59 Men Killing Women and Male Sexual Rivals 62 Sub-Pattern One: Masculine Possessiveness/Control 62 Sub-Pattern Two: Masculine Depression and Homicide/Suicide 77 Women Killing Men 84 Page The Special Cases 86 Alleged Victim Precipitation 87 Conclusion 88 Chapter Four: Sub Lethal Assaults - The Missing Focus on Victim Safety 90 Introduction 90 The Criminalisation of Intimate Partner Violence 91 The Police Response 91 The Prosecution 93 The Courts 94 Returning the Focus to Decriminalisation: The Rule of Love 97 The Transition from a Rule of Force to a Rule of Love 97 The Rule of Love in Contemporary Interventions 101 Battered Wives versus Battered Mothers: What's Love Got to Do With It? 106 The Red Flags for Dangerousness/Lethality 110 'A Severe or "Life Threatening" Incident 110 The Red Flag of Repeat Victimisation 116 The Red Flag of Separation 119 Other Red Flag Offending 124 Risk Management: The Missing Focus on Victim Safety 126 The Focus on Rehabilitation 126 Victim Blaming 127 The Human Cost of Legal Intervention 128 Principled Criminal Justice Intervention 132 The Power and Control Analysis 132 Principled Sentencing 133 Monitoring and Evaluation from the Standpoint of Victim Safety 135 Conclusion 136 Chapter Five: Domestic Violence Fatality Reviews 138 Introduction 138 Missing Data 140 Page The Systems Review 142 Case Study One 143 Case Study Two 153 Case Study Three 157 Case Studies Four and Five 161 Case Studies Six and Seven 171 Investigative Fatality Reviews 177 Misclassification of Domestic Violence-related Deaths 178 Death Following Assault: Only Assault Charges Laid 180 Unresolved Cases 181 Conclusion 185 PART II 186 Chapter Six: The 'Red Flag' of Separation Part I: The Sexual Provocation Defence 187 Introduction 187 The Origins and Development of Provocation 191 Separation and Female 'Infidelity 198 The Context of Separation: The Case Studies 201 Unmarried Women's Attempts to Terminate Relationships as Provocation 201 The Violent Pursuit of the Separated Wife 206 Protection Orders and Child Access Disputes as Sexual Provocation 210 Battered Women's Attempts to Seek Assistance as Sexual Provocation 211 The Provocation Analysis: Individual Capacity versus a Reasons-based Approach 220 Provocation and Legal Constructions of Morality 225 Provocation and the Stereotype of Intimate Femicide: Masking the Red Flags of Separation and Repeat Victimisation 230 Legal Norms of Intimate Heterosexual Relationships 232 Conclusion 233 Page Chapter Seven: The 'Red Flag' of Separation Part II: Toward a Principled Response 235 Introduction 235 Theories of Separation Violence and Punishment Severity 236 Separation Violence and the Statutory Response to Egregious Murders 238 Separation Murders as 'Unexceptional' 238 Separation Murders as Insufficiently Serious 244 The Sentencing Act 2002 246 Sub-Lethal Separation Assaults 251 The Coincidence of Separation Violence and Punishment Severity 251 The 'Out-of-Control/In-Control' Crime of Passion Analysis 253 Rendering Separation Violence Invisible 255 The Invisibility of Separation Violence in Legal Culture 255 The Myth of Romantic Love and Crime of Passion Analysis 256 Separation Violence/Home Invasion as a Norm of Intimate Relationships 257 The Consequences for Battered Defendants: Why Didn't She Leave? 263 National Domestic Violence Policy versus Legal Analyses 267 Victim Safety 267 Batterer Accountability 267 Promotion of Healthy Gender Roles and Non-Violent Concepts of Masculinity 268 Compromising Risk Assessment 269 Male Sexual Proprietariness/Masculine Control 269 Systematic Undermining of Risk Assessment 270 Conclusion 270 Chapter Eight: The 'Red Flag' of Repeat Victimisation Modus Operandi and the (Ir)relevance of a History of Violence at Trial 273 Introduction 273 The Mens Rea of Murder 275 'Common Sense' Understandings of Mens Rea 278 'Common Sense' Understandings of Intimate Femicide 281 Page The Gendered Inequality of Arms 281 The Relevance of Body Force to Constructions of Intention 283 Case Studies 284 Drawing the Line between 'Good Hidings' and Intimate Femicide 284 Disregarding the Red Flag of Repeat Victimisation and Inequality of Arms 286 The 'Respectable' Habitual Batterer 292 Manipulating the Red Flag of Repeat Victimisation for the Benefit of the Batterer 294 Using the Harmful Effects of Battering to Exculpate the Habitual Batterer 294 Using Injuries Inflicted During a Previous Assault to Exculpate the Habitual Batterer 299 The 'De Facto "Habitual Batterer" Defence' 302 Constructions of Mens Rea in Battered Defendant Cases 308 Conclusion 310 Chapter Nine: Admission of Red Flag Evidence at Trial 312 Introduction 312 Barriers to Admissibility of Domestic Violence Evidence 314 The Prohibition on Propensity Evidence 314 Propensity Evidence in Intimate Femicide Cases 318 The Hearsay Rule 320 Hearsay Requirements in Domestic Violence Cases 323 The Requirement of Unavailability 323 The Requirement of Reliability 327 'Red Flags' for Intimate Femicide: What the Jury Was Never Told 334 Prior Threats to Kill 334 Controlling Behaviour and Stalking 337 Prior Violence toward the Deceased 338 Prior Violence toward Previous Intimate Partners 341 The Deceased's Fear of the Abuser and Premonitions of Death 344 Evidence of Forced Sex 347 A Principled Response to Admissibility: Recognising the Theme of Control 350 Page Conclusion 352 PART III 354 Chapter Ten: Confronting Theoretical Barriers to Principled Intervention 355 Introduction 355 Major Theoretical Dilemmas 355 The Victim Agent Dichotomy 356 The Sameness/Difference Dichotomy 360 The Public/Private Dichotomy and Women's Autonomy 362 The Particularity/Generality Dichotomy and the Feminist Focus on the Individual 365 Disappearance of the Batterer and the Tendency to Blame 368 The Correlation of Child and Women Abuse 371 The Gender Controversy 373 The Importance of a Power and Control Analysis 378 Domestic Violence: A Women's Rights Issue 379 Conclusion 380 Chapter Eleven - Research Summary 382 Introduction 382 Inconsistent Policies and Principles in Domestic Violence Intervention 383 Victim Safety/Batterer Accountability versus Rehabilitation and Preserving the Family Relationship 383 Failure to Acknowledge the Interrelationship between Child and Woman Abuse 386 Misconstructions of Victim Autonomy: Shifting the Focus to Control 388 The Culture of Victim Blaming 389 Principled Intervention: Shifting the Focus to Victim Safety 390 Adoption of a Corporate Domestic Violence Risk Assessment Tool 390 Prioritising Victim Safety 392 Monitoring and Accountability for Victim Safety 394 Criminal Justice Intervention 395 Police 395 Page Prosecution 398 Courts 400 Batterer Treatment 401 Parole/Probation 402 Coordinating System Responses 402 Refuge Funding 403 Fatality Reviews 403 Systems Review 403 Investigative Review 406 Data Collection 408 Separation Violence 409 'Mercy Killings": A Further Form of Separation Violence? 412 Addressing the Interrelationship between Domestic Violence and Domestic Homicide - Part I: A History of Battering 417 A Domestic Homicide Statute 417 Killings in Breach of the Deceased Victim's Protection Order 423 Addressing the Interrelationship between Domestic Violence and Domestic Homicide - Part II: Exclusionary Rules of Evidence 424 Admissibility