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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
THE PROPENSITY TO DOMINATE:
Interrogating the Characterisation of Sexual and Non-sexual Violence as Relationship Propensity Evidence
CACCIA ARMSTRONG
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (with Honours) at the University of Otago – Te Whare Wānanga o Ōtākou
October 2022
Acknowledgements
To my supervisor, Dr Anna High, for being the greatest mentor I could ask for and who I credit for introducing me to this research area. Your kind encouragement has been invaluable, and I am grateful to have learnt from you. Thank you for trusting me with this topic, and for engaging in thought- provoking and challenging discussions with me along the way.
To Dr Danica McGovern, for your valuable insight and feedback at my seminar. To my family, for the continuous love and support. Everything I am, I owe to you.
To my friends, both in Dunedin and afar – thank you. I am truly grateful to have you all in my corner. A special mention to Julia and Carrie, for being great sounding boards all year and my number one supporters.
Finally, an acknowledgement to survivors for domestic violence everywhere – thank you for sharing your stories.
I want to note that this dissertation explores domestic and intimate partner violence, with a focus on sexual and physical violence. Please read with care.
INTRODUCTION
A woman’s place in history often has been at the receiving end of a blow. This history is a long and sad one – sad because of the countless women who have been browbeaten, bruised, and bloodied, and broken and sad because the ideologies and institutional practices that made such treatment both possible and justifiable have survived, albiet somewhat altered, from centry to centry and been woven into the fabric of our culture and are thriving today.1
Domestic violence can take a range of forms, including sexual, physical, and psychological violence.2 When reported and the perpetrator charged, it can be difficult for factfinders to understand the complexity of the relationship between the defendant and the complainant. The predictable, yet problematic, question can arise: if it was really that bad, why didn’t they leave?
Often, the only way to combat commonly held assumptions like the one mentioned above is to introduce evidence that explains the nature of the relationship. For example, if someone is charged with physically assaulting their intimate partner, evidence of prior convictions for assaults against that partner may be introduced to indicate the defendant has behaved a similar way in the past.3 Termed propensity evidence, specifically relationship propensity evidence, the value of this type of evidence in cases of domestic and intimate partner violence cannot be understated. The evidence paints a broader picture of the relationship, and provides the factfinder with insight they would not otherwise have.
Despite the benefits of relationship propensity evidence, its use and application are periodically misunderstood in the criminal justice system. Whether due to a misunderstanding of domestic violence, a misunderstanding of the propensity provisions in the Evidence Act 2006, or both, the consequences of misapplication are failing complainants in relationships of domestic violence. In particular, recent cases have grappled with the cross-admissibility of evidence of sexual violence and non-sexual violence against an intimate partner. In some cases, courts have considered the linkage between these types of violence to be insufficient, and thus, evidence of
1 Rebecca Dobash and Russel Dobash “The Legacy of the Appropriate Victim” Violence Against Wives: A Case Against the Patriarchy (Open Books, England, 1980) 31 at 31.
2 Nancy Swarbrick “Domestic violence” (5 May 2011) Te Ara – The Encyclopedia of New Zealand
3 Mike Redmayne Character in the Criminal Trial (Oxford University Press, New York, 2015) at 1.
one type of violence has been deemed inadmissible in relation to the other.4 This is an outcome that I argue is problematic and reflects a flawed understanding of the complexity of domestic violence, and results in an artificial delinking of evidence of sexual and non-sexual violence.
This dissertation seeks to argue that seemingly discrete, unrelated forms of violence, such as sexual and non-sexual violence, should be considered as interrelated, “broadly similar” offending, linked by the underlying theme of dominance on the part of the perpetrator. As such, different forms of violence should be considered cross-admissible relationship propensity evidence in the context of domestic and intimate partner violence. To illustrate this, Chapter One recounts the history and development of propensity evidence, from its origins in common law to its codification in the Evidence Act. I explain how propensity evidence has developed amid a focus on orthodox similar fact evidence, before examining how this has resulted in a limited understanding of relationship propensity evidence. I turn to four cases that have aided the development of relationship evidence, and highlight the necessity of this type of evidence in a domestic violence context.
Chapter Two undertakes a critical deconstruction of S v R5 and H v R,6 two recent Court of Appeal judgments that rejected the cross-admissibility of evidence of sexual violence and non- sexual violence. These two cases were selected because they expose a problematic approach to relationship evidence in a domestic violence context. In particular, the different pieces of evidence were not considered “broadly similar” offending, which resulted in delinking the non- sexual and sexually violent offending.
Chapter Three assesses the dominance approach to domestic violence, a theoretical framework that argues the social institutions and patriarchal beliefs embedded in society encourage male dominance and female subordination. I explain why it is necessary to use this approach when assessing relationship evidence in a domestic violence context, as it more adequately addresses the complexity of a domestic violence relationship, and correctly recognises different types of violence as “broadly similar” offending.
4 Two recent Court of Appeal cases that reached this conclusion are discussed in Chapter Two.
5 S (CA145/2020) v R [2020] NZCA 362, referred to in text as S v R.
6 H (CA595/2021) v R [2022] NZCA 4, referred to in text as H v R.
Finally, Chapter Four assesses two recent cases, Pahi v R7 and Holmes v R,8 that rightly recognise the role of dominance in domestic violence relationships. I then reassess S v R and H v R through the dominance framework, and discuss how employing this framework could have led to a ruling that evidence of sexual violence and non-sexual violence can be cross- admissible in a domestic violence context.
A Terminology
Throughout this dissertation, I have adopted the term “defendant” when discussing the perpetrator of an offence, and “complainant” when referring to the victim. This is consistent with the terminology used in court judgments.9 However, I wish to acknowledge that there is extensive discourse on how to refer to a complainant in a sexual or violent crime. While the legal definition of victim includes a person who suffers physical injury because of an offence,10 some advocates feel that “victim” carries negative connotations of being powerless and helpless.11 Others prefer to use “survivor” as a term of empowerment.12 I have chosen to use “complainant” as a more neutral term, as well as keeping consistent with the judgments I discuss.
Additionally, I have chosen gendered pronouns, using “he/him” to refer to the defendant and “she/her” to refer to the complainant. This both reflects the genders of the protagonists in the judgments discussed, as well as the gendered nature of domestic and intimate partner violence.13 However, this is not to suggest that the gender roles are never reversed, or that domestic violence is limited to heterosexual relationships. There is growing research that reveals a high prevalence of domestic violence in same-sex relationships, as well as experiences lived by gender variant individuals.14 While a pertinent issue deserving of further discussion, this is not within the scope of this dissertation.
7 Pahi v R [2021] NZCA 348, referred to in text as Pahi.
8 Holmes v R [2022] NZCA 340, referred to in text as Holmes.
9 Community Law “Criminal & traffic law” <https://communitylaw.org.nz>; District Court of New Zealand “Criminal Procedure” <www.districtcourts.govt.nz>.
10 Victims’ Rights Act 2002, s 4.
11 Joel Best “Victimization and the Victim Industry” (1997) 3 Society 9 at 13.
12 Sexual Assault Kit Initiative “Victim or Survivor:x Terminology from Investigation Through Prosecution” (2015) SAKI: Sexual Assault Kit Initiative <www.sakitta.org> at 1.
13 Michael P Johnson “Domestic Violence: It’s Not About Gender – Or Is It?” (2005) 67 J Marriage Fam 1126 at 1128.
14 For research on the prevalence of domestic violence in LGBTQIA+ relationships, see Sylvia Walby and Jude Towers “Measuring violence to end violence: mainstreaming gender” (2017) 1 J Gender Based Viol 11 at 15;
Further, I use “domestic violence” and “intimate partner violence” interchangeably. The term “domestic violence” developed to refer to abuse within the domestic home, assuming the husband was the abuser, and the wife was the abused.15 The term “intimate partner violence” was later introduced to encompass wider types of relationships and is less gendered.16 Both terms refer to the presence of violence in intimate relationships, and thus, are both used in this dissertation.
I have also chosen to primarily refer to physical violence as “non-sexual violence”. Sexual violence does, of course, have a physical dimension, but physical violence can be inflicted in a non-sexual way, as denoted herein by “non-sexual violence”.
I use the term “relationship evidence” when discussing relationship propensity evidence. This type of propensity evidence is referred to several ways, including “narrative”, “contextual”, or “background”,17 as explained further in Chapter One.
Andreia Machado “Male Victims of Female-Perpetrated Partner Violence: A Qualitative Analysis of Men’s Experiences, the Impact of Violence, and Perceptions of Their Worth” (2020) 21 Psychol Men Masc 612 at 613; Luca Rollè, Giulia Giardina, Angela Caldarera, Eva Gerino and Piera Brustia “When Intimate Partner Violence Meets Same Sex Couples: A Review of Same Sex Intimate Partner Violence” (2018) 9 Front Psychol 1 at 2.
15 Ron Wallace “Domestic Violence and Intimate Partner Violence: What’s The Difference? (15 October 2015) American Military University EDGE <https://amuedge.com>.
16 Wallace, above n 15.
17 Law Commission The 2013 Review of the Evidence Act (NZLC R127, 2013) at 93.
CHAPTER ONE: THE HISTORY AND DEVELOPMENT OF PROPENSITY EVIDENCE
A Introduction
Propensity evidence has a long, complicated history. With its origins dating back to the seventeenth century, it was originally prohibited to adduce propensity evidence about a defendant at trial, due to the risk of unfair prejudice against that defendant.18 Now, propensity evidence about a defendant may be admissible if the probative value of the evidence outweighs the risk of unfair prejudice to the defendant.19 In this chapter, I outline the history of propensity evidence, which largely focused on orthodox, similar fact evidence. I explain how this focus resulted in relationship evidence being largely overlooked, leading to inadequate statutory provisions and confusing case law on this type of propensity evidence.
With this foundation laid, I discuss four cases that have assisted in the development and recognition of relationship evidence as propensity evidence. Together, these cases highlight the crucial role relationship evidence has in explaining the context in which alleged offending has occurred. Further, these cases indicate the importance of case law in this area due to a disconnect between the statutory provisions and the nature of relationship evidence.
B What is Propensity Evidence?
In the Evidence Act, “propensity evidence” covers what was known as “character evidence” at common law.20 The law relating to character evidence is very complex, and character as a concept is difficult to define.21 The Law Commission’s discussion paper on character and credibility outlined two evidential aspects of character; reputation and disposition.22 Reputation refers to how the public perceives a person, while disposition refers to that person’s inherent
18 Redmayne, above n 3, at 92; Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character (NZLC IP4, 2007) at 6.
19 Evidence Act, s 43(1); David Hammer “CLI Seminar: Propensity Evidence Reform” (speech to Current Legal Issues, Queensland, September 2019).
20 Law Commission The 2013 Review of the Evidence Act, above n 17, at 93.
21 Barrett Anderson “Recognizing Character: A New Perspective on Character Evidence” (2012) Yale L J 1912 at 1919.
personality and habitual behaviour.23 Disposition is often used synonymously with propensity, which refers to the notion that an individual is inclined to behave in a certain way or to commit particular offences.24 Evidence that tends to show such a propensity is called propensity evidence, and is prima facie inadmissible.25
The Evidence Act broadly defines propensity evidence as evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind.26 This type of evidence can be prejudicial to a defendant, and rules have developed through common law and statute to protect defendants.27 However, it is recognised that propensity evidence can be extremely valuable in the factfinding exercise, and exceptions have developed.28
C Development of Propensity Evidence Admission
At common law, propensity evidence was recognised as similar fact evidence. This is evidence of specific conduct (usually prior convictions) that is similar to the current offence and is offered as circumstantial evidence of an element of the offence.29 It is generally prohibited to adduce this kind of evidence at trial due to the risk of unfair prejudice on the defendant.30 Frequently termed “forbidden reasoning”,31 the factfinder may place undue weight on the propensity evidence, and reason that because of their character, the defendant is more likely to be guilty of the current charge. Thus, to be admissible when offered by the prosecution, it must be shown the evidence is highly probative in relation to proving an issue in dispute, with such probative value outweighing any risk of unfair prejudice to the defendant.32
Aside from similar fact evidence, there are other types of propensity evidence, labelled “background”, “relationship” and “narrative” evidence.33 For relationship evidence, the
23 Law Commission, above n 22, at 11.
24 Law Commission, above n 22, at 11.
25 Law Commission, above n 22, at 11.
26 Section 40(1).
27 Law Commission, above n 22, at 6.
28 Law Commission, above n 22, at 3.
29 Kenneth Arsenon “The Propensity Evidence Conundrum: A Search for Doctrinal Consistency” (2006) 8 UNDALR 31 at 32.
30 Roderick Munday “The Admissibility of Evidence of Criminal Propensity in Common Law Jurisdictions” (1989) 13 VUWLR 223 at 223.
31 Munday, above n 30, at 223.
32 Evidence Act, s 43.
propensity is not dependent on how similar the acts are. Instead, “the relevant propensity arises from what the evidence says about the nature of the relationship between the protagonists”.34 In other words, relationship evidence provides background to the offending. However, common law focused on similar fact evidence and as a result, these other forms of evidence were largely ignored. Instead of being treated as propensity evidence, relationship or context evidence was considered directly relevant to the case, as it formed “part of the narrative”.35 Thus, the evidence was not subject to the hurdles of propensity evidence, only the standard rules of admissibility.
The trend of regarding contextual evidence as “part of the narrative” could have resulted from Lord Herschell’s statement in Makin,36 an extremely influential judgment in the development of propensity evidence. His Lordship affirmed the rule excluding similar fact evidence, while simultaneously saying that propensity evidence could be admissible if it was relevant for “some other purpose”.37 In practice, evidence that fit the definition of propensity evidence but was not offered for a similar fact purpose was considered directly relevant, and thus admissible.38
By admitting relationship evidence under the guise of direct relevance, the defendant was still exposed to the risk that the factfinder would engage in improper reasoning by relying on the propensity evidence to reason the defendant must be guilty of the current charge. Courts failed to engage with this at common law, and ignored evidence that was, by definition, propensity evidence, but was relevant for “some other purpose”. This approach was inadequate, as it meant some forms of propensity evidence were able to enter the criminal trial through the loophole of direct relevance, without regard for the inherent prejudice to the defendant. As a result, the purpose for which the prohibition existed (to protect defendants from the risk of unfair prejudice) was undermined, as evidence that should have been scrutinised regarding the risk of unfair prejudice to the defendant was admissible due to its “direct relevance”.
D Codification of the Common Law
34 Campbell-Joyce v R [2016] NZCA 192 at [26].
35 Law Commission The 2013 Review of the Evidence Act, above n 17, at 107.
36 A E Acorn “Similar Fact Evidence and the Principle of Inductive Reasoning: Makin’ Sense” (1991) 11 Oxf J Leg Stud 63 at 63, citing Makin v Attorney General of New South Wales [1894] AC 57, [1891-4] All ER Rep 24, (HL).
37 Acorn, above n 36, at 63, citing Makin v Attorney General of New South Wales, above n 36.
38 Mark Turcott “Similar Fact Evidence: The Boardman Legacy” (1978) 21 Crim L Q 43 at 52.
In 1997, the Law Commission recommended an Evidence Code that included provisions on propensity, which was subsequently enacted.39 Now, the approach to propensity evidence is found in sections 40 to 43 of the Evidence Act. Section 40(1) defines propensity evidence as evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved.40 In R v Healy, the Court of Appeal stated that while largely a reflection of the common law, the Act should be taken as the starting point when it comes to the admissibility of propensity evidence.41
For any piece of evidence to be admissible, it must pass the tests laid out in ss 7 and 8 of the Evidence Act. Section 7 sets out a fundamental principle that the evidence must be relevant.42 The meaning of relevance is found in s 7(3). Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.43 In Wi v R, Tipping J noted s 7(3) “isn’t an exacting test” and that the question is whether the evidence has any probative tendency at all.44 In other words, the relevance test has a very low threshold, and evidence that has even a slight logical connection to the issue in dispute will pass s 7.45
If evidence has been deemed relevant under s 7, the evidence must also pass s 8 to be admissible.46 Section 8 sets out a general exclusionary rule, and states that in any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding, or will needlessly prolong the proceeding.
39 Law Commission The 2013 Review of the Evidence Act, above n 17, at 100.
40 Evidence Act.
41 R v Healy [2007] NZCA 451 at [48].
42 Evidence Act.
43 Section 7(3).
44 Wi v R [2009] NZSC 121 at [8].
45 Wi v R, above n 44, at [16].
46 McDonald Principles of Evidence in Criminal Cases, above n 33, at 48.
Sections 40 to 43 of the Evidence Act outline the ways propensity evidence may be introduced in a criminal trial. Propensity evidence may be offered about any person.47 In respect to a criminal defendant, there are three ways propensity evidence can be introduced. Firstly, the defendant can offer propensity evidence about themselves, but doing so triggers a right of reply for the prosecution to offer rebuttal propensity evidence.48 Secondly, a defendant is able to offer propensity evidence against a co-defendant if the evidence is relevant to a defence that is or will be raised by the defendant.49 Finally, the prosecution may offer propensity evidence about a criminal defendant.50
For the prosecution to offer propensity evidence against a criminal defendant, there is a heightened admissibility test that sits alongside ss 7 and 8.51 Section 43(1) states the prosecution may offer propensity evidence in a criminal proceeding against a defendant only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
Although similar to s 8, there are slight differences that make s 43 more onerous.52 Section 8 looks at the risk of unfair prejudice on the proceeding, while s 43 focuses on the risk of unfair prejudice to the defendant.53 Further, if the probative value of a piece of evidence is equal to the risk of unfair prejudice, s 8 would allow admission, but s 43 would not.54 This heightened admissibility test in s 43 aims to protect against the risk of improper reasoning.55
Section 43(3) provides factors the Court may consider when balancing probative value against the risk of unfair prejudice. These include the frequency with which the acts that are the subject of the evidence have occurred, the connection in time, the similarity between the events, the number of people making allegations and the extent to which the acts are unusual.56 While
47 Section 40.
48 See Evidence Act, s 41; Law Commission The 2013 Review of the Evidence Act, above n 17, at 108.
49 Section 42.
50 Section 43.
51 O v R [2018] NZCA 434 at [12].
52 O v R, above n 51, at [12].
53 Sections 8 and 43.
54 See Mahomed v R [2011] NZSC 52 at [66], referred to in text as Mahomed; Law Commission The 2013 Review of the Evidence Act, above n 17, at 122.
55 For empirical support for a heightened test, see Law Commission The 2013 Review of the Evidence Act, above n 17, at 126; Mahomed v R, above n 54, at [7]; Australian Law Reform Commission, interim report No 26, Evidence (Canberra, 1985) at 453.
56 Section 43.
useful when assessing the probative value of similar fact evidence, these factors offer little assistance in the context of conflictual relationship evidence.57 As the factors in s 43(3) were developed with a focus on similar fact evidence, they do not operate well for relationship evidence.
Before engaging in the balancing exercise between probative value and prejudicial effect, the “issue in dispute” must be identified.58 This can be quite general, but it has been stressed that the issue should be identified as precisely as possible.59 Precise identification assists in the balancing exercise, as it allows the factfinder to see which issue in dispute will be assisted by the propensity evidence.60 While the factors in s 43(3) affect the probative weight of the evidence, sufficient relevance to the issue is the determinant of admissibility.61 Further, where more than one issue in dispute has been identified, the evidence only needs to be relevant to one issue, not all.62
E The Recognition of Relationship Evidence as Propensity Evidence
In its 2013 Review of the Evidence Act, the Law Commission noted that propensity evidence has generally been divided into two groups: cases where the courts have side-stepped the propensity provisions despite their applicability (relationship propensity evidence), and cases where ss 40 to 43 have been applied (orthodox similar fact evidence).63 This “side-stepping” by courts reflects the common law approach of considering the evidence as part of the narrative and may account for relationship evidence being largely absent from the development of common law propensity evidence rules.64 While the Law Commission noted this “side-
57 Mahomed v R, above n 54, at [76].
58 See Evidence Act, s 43(2); C (CA 458/2018) v R [2018] NZCA 513 at [22]; Freeman v R [2010] NZCA 230 at [21], citing Vuletich v R [2010] NZCA 102 at [31] to [37] per Glazebrook J, at [69] per Baragwanath J and at [83]–[87] per Randerson J.
59 See Stephanie Bishop and Elisabeth McDonald “What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases” (2011) 17 Canter Law Rw 168 at 170; Freeman v R, above n 58, at [21] and [25].
60 Evidence Act, s 43(2); Bishop and McDonald, above n 59, at 174.
61 Bishop and McDonald, above n 59, at 174.
62 Evidence Act, s 43(2); C (CA458/2018) v R, above n 58, at [23].
63 Law Commission The 2013 Review of the Evidence Act, above n 17, at 257.
64 Law Commission The 2013 Review of the Evidence Act, above n 17, at 107, citing R v Tainui [2008] NZCA 119; R v R [2008] NZCA 342; R v Broadhurst [2008] NZCA 454; R v Gooch [2009] NZCA 163; and R v
Mahomed [2009] NZCA 477.
stepping” had not led to any miscarriages of justice at the time, it could, due to the risk of improper reasoning.65 The “side-stepping” slowed down in 2011, where the Supreme Court in Mahomed held that a broad approach should be adopted when determining if evidence is propensity evidence.66 Their decision had the effect of encompassing narrative, relationship and contextual evidence in the definition of s 40(1).67 Additionally, Mahomed imposed a crucial safeguard for defendants, as it affirmed that background evidence pertaining to the defendant would need to pass the heightened admissibility test in s 43.
1 Mahomed v R [2011] NZSC 52
Mahomed v R is the leading case on how to interpret s 43 of the Evidence Act in Aotearoa New Zealand. For the majority, Tipping J’s discussion of the admissibility of propensity evidence has been frequently cited:68
The rationale for the admission of propensity evidence rests largely, ... , on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.
Mahomed concerned the death of Mr and Mrs Mahomed’s 11-week-old daughter, Tahani, who died as a result of head injuries and brain damage attained 12 hours before her death.69 At trial, Mr Mahomed was found guilty of murder and intentionally causing grievous bodily harm.70 Both Mr and Mrs Mahomed were found guilty of failing to provide the necessaries of life, by not providing prompt medical treatment.71 Mr and Mrs Mahomed appealed their convictions on the basis the “van incident” evidence was inadmissible propensity evidence.72
65 Law Commission The 2013 Review of the Evidence Act, above n 17, at 107. 66 Law Commission The 2013 Review of the Evidence Act, above n 17, at 122. 67 Mahomed v R, above n 54, at [4] and [84].
68 Above n 54, at [3] (emphasis in original).
69 At [25].
70 At [21].
71 At [21].
72 At [22].
The “van incident” occurred eight days prior to Tahani’s death.73 Mr Mahomed left Tahani in their warm van for three hours before she was found by a security officer, crying and covered in perspiration. Mr Mahomed returned to the car as the officer was calling 111, and did not appear concerned for Tahani. An argument between Mr Mahomed and the officer ensued, and Mr Mahomed drove away before the Police arrived. While both the majority and minority agreed that the “van incident” evidence fell within the definition of propensity evidence in s 40, they were split as to the proper application of s 43 to this evidence.74
The main difference in reasoning turned on how the “issue in dispute” was framed.75 The majority considered the issue was whether Mr Mahomed had “murderous intent” towards Tahani, and held there was no linkage between leaving Tahani in the van and murdering her.76 At most, the “van incident” showed a careless attitude, which they viewed as very different to the state of mind required for murder.77 Thus, the appeal was allowed, and the “van incident” evidence was inadmissible in relation to the charges for murder and intentionally causing grievous bodily harm.78
In contrast, the minority framed the issue as whether the parents had an “attitude of hostility” towards Tahani.79 They considered that both leaving her in the van and ending her life showed hostility, and so, there was linkage between the evidence and the current charges. They went on to say that it would be inappropriate to look at each individual incident to derive probative value when they created a visible pattern of events.80
The minority’s approach in Mahomed highlights how conflictual relationship evidence can paint a fuller picture of the context in which the offending occurred, particularly in respect of
73 At [32].
74 At [8] and [70].
75 Evidence Act, s 43(1); Richard Mahoney, Elisabeth McDonald, Scott Optican and Yvette Tinsley The Evidence Act 2006: Act & Analysis (3rd ed, Brookers Ltd, Wellington, 2014) at 222.
76 Mahomed v R, above n 54, at [12].
77 At [12].
78 At [19].
79 At [70].
80 At [73].
the same complainant.81 This has been picked up in subsequent cases, and evidence of a defendant’s prior convictions against the same complainant has been admitted.82
F Propensity Evidence in a Domestic Violence Context
Since Mahomed, relationship evidence has been recognised as useful in cases of domestic violence. This species of evidence can shed light on the entire context surrounding the offending, including the nature of the relationship between the defendant and complainant.
In Perkins v R, the Court of Appeal described the importance of relationship propensity evidence. Mr Perkins was appealing his convictions of sexual violation by rape and assault with a weapon on the basis that the trial Judge failed to adequately direct the jury in respect to propensity evidence.83 The Court of Appeal reviewed the directions given and found they adequately described that the purpose of relationship evidence was to provide background on the nature of the relationship, and directed the jury to limit its consideration of the evidence to that purpose.84
When discussing the evidence of non-sexual violence against the complainant that was not the subject of any particular charge, the Court noted it was relationship evidence that provided important background to the offending:85
The evidence is allowed in not because of the similarity between what is alleged by way of background and the actual offending, ... but rather because otherwise the complainant’s evidence as to the alleged offending which is the subject of charges will be necessarily incomplete and perhaps not comprehensive from the point of view of the jury.
This articulates the value and purpose of relationship evidence in the context of domestic violence. In the absence of background information about the nature of the relationship
81 Campbell-Joyce v R, above n 34, at [24].
82 See Campbell-Joyce v R, above n 34; K v R [2019] NZCA 264.
83 Perkins v R [2011] NZCA 665 at [17], referred to in text as Perkins.
84 At [18] to [22].
85 At [27] per Asher J.
between the defendant and the complainant, the jury will be given an incomplete picture of the alleged offending.
In Campbell-Joyce, the Court of Appeal considered the admissibility of propensity evidence in a domestic violence relationship. The defendant faced nine counts of offending against his former partner, the complainant. Six of the charges were for breaching a protection order.86 Conditions of the order included that Mr Campbell-Joyce was not to abuse or threaten to abuse, harass, or intimidate the complainant, or enter or remain on the land the complainant occupied without express consent.87 The charges at trial all related to breaches of the conditions.88
The proposed propensity evidence related to two prior breaches of the same protection order.89 The first incident involved the complainant driving to the defendant’s house to drop off his vehicle, where an argument arose and he threatened to knock out the complainant.90 He drove her to a friend’s house, and when she asked him to leave, he followed her into the house. He left, but returned and pushed the complainant, resulting in a broken wrist and other injuries.91 The second incident involved the complainant asking the defendant to leave her home, which he had moved into a week before.92 He left and returned multiple times, despite the complainant consistently asking him to leave, slamming doors and yelling at her.93
The trial Judge considered that while there were some differences between these incidents and the current charges, these were insignificant, and the evidence was admissible.94 The Court of Appeal agreed with the trial Judge, dismissing the defendant’s submission that there was insufficient similarity between the proposed propensity evidence and the current charges. The Court followed their approach in Perkins, stating: 95
86 Campbell-Joyce v R, above n 34, at [2].
87 At [5].
88 At [6].
89 At [3].
90 At [12].
91 At [12].
92 At [15].
93 At [15].
94 At [18].
95 At [24], citing Perkins v R, above n 83, at [20].
Evidence of other misconduct by a defendant against the same victim is not orthodox similar fact evidence. It does not rely upon standard “unlikely coincidence” reasoning. Rather, the rationale for its admission rests on it supporting a conclusion that the relationship between the protagonists is conflictual and that the defendant deals with that conflict by expressing hostility and violence toward the complainant.
The Court also emphasised that the “crucial element is that the propensity evidence involves broadly similar offending against the same person when they are in disagreement”.96 The concept of “broad similarity” has become a primary consideration when assessing the probative value of relationship evidence.
3 K v R [2019] NZCA 264
K v R provides another example of admissible relationship evidence. K v R involved prolonged sexual abuse by the defendant, K, against the complainant, A, the daughter of K’s partner.97 A alleged that in the early morning after her eleventh birthday, K came into her room and raped her. The rapes continued for five years, including forced oral sex, fondling, groping, and physical violence.98 K threatened A not to tell anyone. He was charged and convicted of eight offences, consisting of sexual violation, unlawful sexual connection, and indecent assault.99 K appealed on the grounds that he was unfairly prejudiced by the admission of relationship evidence.100
The propensity evidence was evidence given at trial by A, her mother, her older sister, and her stepsister. They explained the family dynamics of the household, describing K as a “dominating and controlling figure prone to angry outbursts, abusive language, and on occasion, violence”.101 The defence submitted there was no connection between this evidence and the allegations of sexual abuse, and as such, the evidence should be inadmissible.102 The Court disagreed and considered that excluding the evidence would give a “sanitised and quite misleading picture of the household”.103
96 Above n 83, at [25] (emphasis in original).
97 K v R, above n 82, at [3].
98 At [3].
99 At [6].
100 At [10].
101 At [14].
102 At [17].
103 At [19].
G Conclusion
This chapter has discussed the development of propensity evidence, indicating that most of the development focused on orthodox, similar fact evidence. This focus resulted in relationship evidence being largely ignored, a trend that continued even after the enactment of the Evidence Act, which encompassed relationship evidence in the definition of propensity evidence. Although affirmed as propensity evidence by the Supreme Court in Mahomed in 2011, the delayed acceptance of relationship evidence has meant that the statutory provisions are ill- equipped to deal with such evidence. As a result, the role of relationship evidence is a confusing area of law, and the factors in s 43 offer little help in assessing the probative value of this species of evidence. Thus, case law in this area is extremely important, and the cases discussed in this chapter all indicate the benefits of relationship evidence in providing background to the alleged offending.
Case law has shown that a key enquiry when assessing the admissibility of relationship evidence is whether it is of “broadly similar” offending to the current charge for which the defendant is on trial. The assessment is not the close similarity required to support orthodox similar fact reasoning, but a sufficient (broad) similarity to support reasoning about the conflictual nature or dynamic of a particular relationship. However, as will be explored in the following chapters, this enquiry into “broad similarity” can be complex. As a result, appellate case law continues to show divergence, and at times, problematic reasoning, as to the admissibility of relationship evidence, particularly regarding the cross-admissibility of evidence of physical violence and sexual violence.
CHAPTER TWO: CRITICAL DECONSTRUCTION OF S V R AND
A Introduction
The previous chapter indicated that despite the extensive history of propensity evidence, it is still a complex area of law with limited development or guidance as to assessing the probative value of relationship propensity evidence. The case law on relationship evidence has shown this type of evidence has important explanatory value in cases of domestic violence, as it provides a wider understanding of the context surrounding the offending. As outlined in Chapter One, the main enquiry when assessing admissibility is whether the relationship evidence consists of “broadly similar” offending to that central to the current charge. When considered as such, the relationship evidence will be admissible, subject to the other hurdles of admissibility in ss 7, 8 and 43.
This chapter begins with a brief discussion of sexual violation, before embarking on a critical deconstruction of two recent Court of Appeal cases, S v R and H v R. In each case, relationship evidence of non-sexual violence was ruled inadmissible to support charges of sexual violence. The relationship evidence was not considered to be of “broadly similar” offending, a conclusion I submit is erroneous and reflects a problematic conception of violence in intimate relationships. While it is not suggested that these two cases are a representative sample, they do expose specific instances where the nature of the issue in dispute has been mischaracterised, resulting in an unsatisfactory delinking of sexual and non-sexual violence.104
As seen through the analysis in these two cases, the Court of Appeal considered that the state of mind required to inflict physical violence was different to the state of mind required to inflict sexual violence. While I recognise this conclusion may be correct in some instances, I submit that this is an incorrect assertion in the context of domestic and intimate partner violence, which I explore further in Chapter Three.
B Defining Sexual Violation
104 Two instances where the Court of Appeal has ruled relationship evidence of physical violence admissible to support charges of sexual violence are considered in Chapter Four.
Sexual violation is defined in s 128 of the Crimes Act 1961 as an act of a person who rapes or has unlawful sexual connection with another person. Section 128(2) defines rape as the following:
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis, —
(a) without person B’s consent to the connection; and(b) without believing on reasonable grounds that person B consents to the connection.
Put simply, rape is sexual intercourse without consent. The Crimes Act does not define consent, which was likely a purposeful decision by Parliament given the difficulty of attaching a singular definition that applies to all scenarios of sexual offending.105 Through case law, consent has developed to mean “full, voluntary, free and informed consent”.106 Despite this common law definition, the absence of a statutory definition has resulted in a confusing trajectory of case law on sexual violation. As with the two cases discussed in this chapter, when a complainant has consented to sexual intercourse with the defendant in the past, it can be difficult to establish the defendant did not reasonably believe the complainant consented to sexual activity on the occasion(s) in question.107 Further, where violence and manipulation are cornerstones of an intimate relationship, whether a person is truly, freely, and voluntarily consenting to sexual intercourse because that is something they want, as opposed to something they feel they must give due to fear or coercion, can be difficult to establish.
C The Cases
1 S (CA145/2020) v R [2020] NZCA 352
S (CA145/2020) v R [2020] NZCA 352 is a pre-trial ruling that concerned the admissibility of propensity evidence in the form of the defendant’s 15 prior convictions for violent offending
105 See Holmes v R, above n 8, at [46]; Anna High “Reluctant Consent” [2022] NZLJ (forthcoming).
106 High, above n 105.
107 See, for example, Christian v R [2017] NZSC 145; Anna High “Christian v R on s 128A(1) Crimes Act 1961” (2018) 47 NZLJ 47 at 49.
against the complainant.108 The Crown proposed to admit this evidence to reveal the nature of the relationship, and indicate that the defendant was more likely to have committed the charges of sexual offending against the complainant.109 The evidence was admitted at the District Court, but the Court of Appeal ruled the evidence inadmissible due to the absence of a logical connection between the prior violent offending and the alleged sexual offending.110 The Court of Appeal’s judgment engaged with an analysis of propensity evidence, focusing on conflictual relationship evidence and the requirement for linkage between the past and current offending.
The defendant, S, had been convicted of 16 charges of violent offending against his wife, M, including a representative charge for rape.111 The appeal against the representative rape charge was allowed. The Crown then charged S with two representative charges of rape and obtained a pre-trial ruling to lead evidence of the 15 remaining violence convictions. The defence appealed this ruling.112
The defendant, S, and the complainant, M, were married in 2008, and had a son, B, in 2013. From around 2011, S was “always demanding sex”, and would get angry if denied.113 S would force M to have sex with him when she said no, in ways she did not want, and she described sex as a punishment.114 S demanded sex after an argument and would say M was not normal if she refused. He would “touch her private area and accuse her of having a disease or sexual dysfunction because she was so dry”.115 He said she was like a “dead fish”, and called her other names, like “whore”.116 M described being scared at night because S would watch pornography and make M do what he wanted, telling her to learn and mimic the pornography.117 M’s brief of evidence noted that she thought she had to do what he wanted, and that S had told her it was her duty to have sex, and that it was Chinese tradition not to complain..118
108 S (CA145/2020) v R, above n 5.
109 At [3].
110 Above n 5.
111 At [1].
112 At [3].
113 At [9].
114 At [10].
115 At [11].
116 At [12] to [13].
117 At [10].
118 At [9].
After their son was born, S would threaten M that he would look for someone else if she did not do what he wanted.119 To stop the arguments, M would acquiesce to sex, and wear “sexy underwear” at his request. When they moved property in 2015, they slept in separate rooms, but S would go to M’s bedroom when he wanted sex. S also inflicted non-sexual violence against M and their son. Importantly, the instances of non-sexual violence were not closely connected in time with the alleged sexual offending. The defendant’s prior convictions included stomping on M’s stomach and legs, throwing her to the ground, and punching and kicking her.120 M phoned the Police after a violent incident on 30 November 2016, where S pointed a gun and threatened to kill M and B.121
In the District Court, Judge E M Thomas found that the proposed conviction evidence showed a propensity for S to be “physically and sexually violent towards M” and went to “concepts of power and dominance and control within the relationship”.122 The Judge found the evidence had a high probative value because it shed light on a “marked power imbalance that is material to consent” and that to exclude the evidence of violent offending would be artificial.123 The Judge considered the evidence may be prejudicial, but not unfairly so.124 In any event, the risk of unfair prejudice would be outweighed by the probative value of the evidence, and it was deemed admissible.125 This decision was appealed by the defendant.
The issue before the Court of Appeal was whether the propensity evidence was properly admitted. The defendant submitted there was “no logical connection” between the violent offending and the alleged sexual violation, as M did not say she acquiesced to sex due to fear of violence, but because she thought the nature of the sexual activity was “normal”.126 Thus, the defence submitted that admitting the violent offending would add an illegitimate element to the question of consent that would overpower the actual evidence in terms of why M said
119 At [13].
120 At [18].
121 At [19].
122 At [20].
123 At [21].
124 At [23].
125 At [23].
126 At [30].
she consented.127 In other words, since M said her consent was based on complying with Chinese tradition and not due to a fear of violence, the jury may place emphasis on the violent offending and derive from that evidence that the sexual violations did occur, which would seem to contradict M’s evidence.
Ultimately, the Court agreed with S, and held the propensity evidence inadmissible. Their reasoning was grounded in various elements of propensity law and highlighted the complexity of propensity evidence in a relationship context. In essence, their reasoning was based on a mischaracterisation of the issue in dispute, which resulted in delinking the physically and sexually violent offending.
(i) The offending was not “broadly similar”
In reaching their conclusion, the Court’s analysis focused on whether there was “linkage” between the evidence of non-sexual violence and the alleged sexual violence. As discussed by the Supreme Court in Mahomed:128
The propensity [evidence] must have some specificity. That specificity, in order to be probative, must be able to be linked to the conduct or mental state alleged to constitute the offence for which the person is being tried.
In S v R, this meant that the relationship evidence of physical violence must be able to be linked to the state of mind required for sexual violation. Ultimately, the Court concluded that there was not a “cogent connection” between S’s tendency to act violently towards M and the alleged sexual offending.129 This conclusion had the effect of delinking the physical violence and sexual violence, an outcome that I argue is unsatisfactory and does not recognise the interconnected nature of domestic violence. In particular, the Court stated they did not consider that the evidence of physical violence was “capable of demonstrating hostility towards M, leading to sexual violation of her”.130 This statement carries the implicit suggestion that the Court did not consider that the type of hostility required to inflict physical violence is the same
127 At [31].
128 Mahomed v R, above n 54, at [3].
129 S (CA145/2020) v R, above n 5, at [37].
130 At [37] (emphasis in original).
type of hostility required to inflict sexual violence. While perhaps true in some situations, I argue that the “type of hostility” is dependent on context. For example, in the context of a drunken bar fight, a man who punches a random patron may not be more likely than another man to also go home and rape his girlfriend. However, in the context of prolonged violence and control inflicted on an intimate partner, a person who is physically violent towards his partner may also be more likely than a non-violent man to be sexually violent towards that same partner. In that context, it is submitted that different types of violence are linked by an overarching theme of dominance expressed by the defendant toward the complainant. To briefly preview the argument that I will develop in Chapter Three: in the context of intimate partner violence, there is a specific type of hostility at play, regardless of the form by which such hostility is expressed. This is a hostility characterised by the desire to dominate and control. When the distinct expressions of violence are understood in this way, as linked by an underlying propensity to dominate, then the different instances of offending should, it is submitted, be characterised as “broadly similar”. As seen in S v R, to do otherwise results in an artificial delinking of evidence of physical violence and sexual violence, a delinking that obscures the “concepts of power and dominance and control” that underpin the relationship.131 This is a problematic outcome that fails to recognise the nuances of domestic violence, which I will return to below.
(ii) The Court required a self-identified link between non-sexual and sexual violence
Relatedly, it is also important to note that the Court relied in part on M’s brief of evidence in reaching their conclusion that the evidence of non-sexual violence and the alleged sexual violence was not “cogently connected”.132 In her brief, M attributed her acquiescence to sexual intercourse to cultural expectations as opposed to a fear of violence. As such, the Court stated that no link could be drawn between the evidence of non-sexual violence and the alleged sexual violence, because M herself did not draw a link, exposing quite circular reasoning: if the complainant does not identify a link, then no link exists. By requiring a link to be identified by the complainant, the enquiry appears to have subtly flipped from an assessment of the defendant’s conduct or state of mind to the complainant’s perception of the defendant’s conduct or state of mind. As I will explain further in Chapter Three, requiring a link to be
131 S (CA145/2020) v R, above n 5, at [20], citing R v [S] [2020] NZDC 2592 at [13] [Pre-trial ruling].
132 Above n 5, at [37].
identified by the complainant in the context of prolonged violence is perhaps unrealistic. It is not stipulated in statute or case law that it is the complainant’s role to articulate such a link, and to require it in this instance was arguably inappropriate.
(iii) There was no connection between physical violence and elements of sexual violence
The Court of Appeal went on to say that as there was not an identified link between the physical and sexual violence from M, it should not be open to the jury to infer such a link. Doing so would invite the jury to infer a connection on the assumption that “physical violence begets sexual violence” in the absence of a link articulated by M.133 Without explicitly saying so, the Court of Appeal is implying this would be an erroneous assumption, suggesting the Court does not perceive there to be a connection between physical violence and sexual violence, at least in this instance. This is an troublesome implication of the Court’s judgment, as it exposes the arguably narrow framework the Court is operating within, being one that does not consider the complexity of violence in intimate relationships. Not only does this framework ignore the underlying dynamics present in relationships of domestic violence, the Court’s perception resulted in the failure to engage with the extent to which the complainant’s consent could be considered “full, voluntary, free and informed”.134 As I will return to in the next chapter, the complainant may have been consenting, but may not have been aware of the extent dominance played a role in her consent.
Further, when assessing whether the complainant truly consented to sexual intercourse, the evidence of physical violence would allow the jury to understand the type of environment the complainant was operating in. Even if it is conceded the complainant believed her consent was “full, voluntary, free and informed”, the evidence of physical violence had a bearing on whether the defendant could hold a reasonable belief that her consent was true.135 The defendant was arguably aware of the control he had over the complainant, particularly in light of M’s evidence that she would follow cultural traditions. Knowing M’s tendency to follow cultural traditions, and thus obey her husband’s commands, there is a question as to how much the defendant
133 At [39].
134 As discussed earlier, this is the common law meaning of consent; see Christian v R, above n 7; High, above n 107.
135 Given the complainant in S v R linked her acquiescence to cultural traditions, the evidence of non-sexual violence may be less probative in relation to whether she consented. However, it does bear on whether the defendant could have reasonably believed she consented.
utilised these to elicit M’s compliance. The combination of cultural traditions and severe physical violence should have caused the Court to consider whether the defendant could hold a reasonable belief that M was truly consenting to sexual activity.
In summary, the Court of Appeal held the relationship evidence inadmissible due to the perceived lack of connection between the types of offending, ruling them as not “broadly similar”. This had the effect of delinking the sexual and non-sexual violence, treating them as discrete, separate, unrelated acts. As will be discussed further in Chapter Three, perpetrators of domestic violence may employ a wide range of methods to dominate and control their partner, ranging from serious physical violence to subtly isolating their partner from friends and family. Both enable the perpetrator to assert their dominance over their partner, and, the Court in S v R should have assessed whether dominance was an underlying dynamic of the relationship. Instead, separating the evidence of physical violence and the alleged sexual violence as not “cogently connected” had the effect of severing these actions by the defendant, overlooking their inherent connection linked by the defendant’s dominance over the complainant.
2 H (CA595/2021) v R [2022] NZCA 4
H v R is another example where the Court’s conclusion resulted in the artificial delinking of sexual violence and non-sexual violence.136 In H v R, the defendant, H, was on trial for eight charges arising out of two separate instances of alleged offending.137 At the District Court, Judge Sinclair granted the Crown’s application for the two sets of charges to be joined and heard together. This was an appeal against that decision.138
The complainant, W, obtained a protection order against H in November 2019.139 The first set of charges relate to events on the 13 April 2020, when H and W were at the complainant’s
136 H (CA595/2021) v R, above n 6.
137 Above n 6, at [2].
138 At [2].
139 At [4].
house.140 W was feeding their baby when H entered the room and asked for sex, which W declined. An argument followed, before H put the baby in the cot and then proceeded to have forceful non-consensual sex with W. Following the intercourse, H verbally abused W.141 She picked up her phone to call the police, but H bent it and cracked the screen. H was charged with sexual violation by rape, breach of a protection order and wilful damage.142
The second set of charges occurred approximately one year later, on 27 April 2021.143 H and W were at the Family Court where permanent parenting orders for their child were being determined. W agreed to go to H’s home with him afterwards, and they sat in the car outside his house for about an hour.144 When W said she needed to go home, H yelled at W to go inside the house and pushed her. When she resisted, H continued to yell and pushed her into the house, and then into the bedroom. He punched her in the face and head, and then placed his hand over her neck and squeezed, making it difficult for her to breathe. The complainant struggled, eventually causing H to loosen his grip. H continued to punch W around the head and face, stopping when he became exhausted. H was subsequently charged with breaching a protection order, three charges of assault on a female, and strangulation.145
The Crown sought leave for the two sets of charges to be heard together. The Judge held the evidence in each set of charges was admissible relationship propensity evidence, as each set of offending provided a context and narrative for the other set.146 The trial Judge said the issue in dispute across both sets of charges was the complainant’s credibility, and that the propensity evidence for each set of offending had probative value in relation to the other.147 Additionally, the Judge determined that the complainant’s evidence would be incomplete if the charges were not admitted as cross-propensity, and the jury would be deprived of the full picture of the
140 At [5].
141 At [6].
142 At [7].
143 At [9].
144 At [10].
145 At [12].
146 At [14].
147 At [15], R v [H] [2021] NZDC [Judgment under appeal] at [40].
relationship.148 In particular, her Honour said it would be “artificial to present the two alleged events separately”.149
The defendant appealed this decision, submitting there were no grounds to justify joinder of the two sets of charges, as there was no propensity between them.150 The Court of Appeal agreed with the defendant, and held the two sets of charges should be heard separately.151 As submitted in the above discussion of S v R, their Honours’ in H v R mischaracterised the nature of the issue in dispute, which resulted in delinking the different types of violence. The two sets of offending were not considered “broadly similar”, and the evidence was not held to be cross- admissible, a conclusion that I submit was erroneous and overlooks the complexity of domestic violence.
(i) The offending was not “broadly similar”
As discussed above, whether the acts are “broadly similar” is a crucial element when assessing the admissibility of propensity evidence in a relationship context.152 The Crown submitted the two sets of offending were broadly similar, because they both showed H’s tendency to act in a violent or hostile way towards W when she rejected him.153 However, like S v R, the Court in H v R reasoned there was no evidence that the sexual violence was accompanied by or associated with non-sexual violence, and thus, the sexual violence and non-sexual violence could not be considered “broadly similar”.154 This approach is similar to that taken in S v R, and had the same effect of delinking the evidence of physical violence and allegations of sexual violence as discrete, unrelated acts. As discussed above, this approach is extremely problematic for failing to recognise that when a relationship is characterised by violence and control, all acts that perpetuate that dominance are “broadly similar”, even if the specific actions are not identical. Categorising the violence by type slips into an orthodox, similar fact analysis, which has been recognised as a different enquiry than relationship evidence.155
148 At [16].
149 At [16], citing R v [H], above n 147, at [30].
150 At [2].
151 At [50].
152 Campbell-Joyce v R, above n 34, at [25].
153 H (CA595/2021) v R, above n 6, at [29].
154 Above n 6, at [38].
The Crown had submitted that without the second set of offending before the jury, they would be denied the full picture of a pattern of domestic abuse.156 This argument adequately describes the purpose of introducing relationship evidence: to understand the context in which the offending occurred. Furthermore, the absence of both sets of offending before the jury would have particularly impacted the sexual violence charges. Deeming the evidence as not “broadly similar” overlooks the inherent role non-sexual violence may have played in relation to the issues of whether the complainant consented to sexual activity and whether the defendant reasonably believed the complainant consented to sexual activity. Severing the offending by type of violence arguably undermines the purpose of relationship evidence, and paints the offending as isolated events as opposed to recognising they make up a pattern of behaviour.
D Conclusion
This chapter has discussed S v R and H v R, two recent Court of Appeal judgments that held relationship evidence of non-sexual violence inadmissible to support charges of sexual violence. In both cases, the Court of Appeal ruled that evidence of physical violence was not “broadly similar” to allegations of sexual violence. This resulted in an artificial delinking of physical and sexual violence, a conclusion that not only reflects the archaic assumption that sexual and non-sexual violence are separate, unrelated acts, but also exposes a misunderstanding about the complexity of domestic violence. Rather than isolated incidents, perpetrators may deploy a wide range of tactics to control their intimate partner, and a broader understanding of this is necessary. Thus, any assessment of linkage between various types of offending should consider the context in which the offending occurred. As this chapter has introduced, in the context of domestic violence, the linkage arises from the overarching theme of dominance of the defendant over the complainant, a theme I explore in more detail in Chapter Three.
CHAPTER THREE: THE PROPENSITY TO DOMINATE
A Introduction
Chapter Two recounted S v R and H v R, two recent Court of Appeal decisions that ruled relationship evidence of physical violence inadmissible in relation to charges of sexual violence on the basis that the offending was not “broadly similar”. In my discussion of both cases, I introduced the role that dominance plays in domestic violence relationships, which was overlooked in the Courts’ respective judgments. This chapter explores dominance further, highlighting how it is an underlying feature in relationships of domestic and intimate partner violence that links various forms of violence and control. As such, it is submitted that in violent relationships, sexual violence and non-sexual violence should be considered “broadly similar” offending, and thus cross-admissible relationship evidence.
This chapter begins with a brief discussion of how different forms of violence are conceptualised, before exploring dominance theory, a body of work that focuses on how one gender has unjustifiably dominated the other in society. In the next chapter, I will harness the dominance theory to discuss how S v R and H v R should have been decided to adequately recognise the dominance and control the defendant had over the complainant in each case.
B Conceptualising Violence
As has been judicially noted, the admissibility of relationship propensity evidence hinges in large part on whether it consists of “broadly similar” offending to the current charge.157 However, the judgments in S v R and H v R illustrate a problematic understanding in the nexus between sexual violence and non-sexual violence in the context of intimate partner violence.
Sexual violence and non-sexual violence have traditionally been considered as separate, discrete acts. In some cases, this may be true; as mentioned in the previous chapter, someone’s propensity to get into bar fights may not have much, if any, probative value in relation to whether they are likely to commit a sexual assault on their partner; in other words, physical and sexual violence are discrete, dissimilar classes of offending, for the purpose of orthodox
157 Campbell-Joyce v R, above n 34, at [25].
similar fact reasoning. However, in the context of domestic or intimate partner violence, there are certain power dynamics at play, which, it is submitted, must be accounted for in the analysis of “broadly similar” offending, with a concomitant impact on the probative value assessment of such relationship evidence.
While evidence of physical violence may not bear factual similarity to sexual violence in a relationship, the purpose of relationship evidence is to put the relationship in context. As has been endorsed by multiple courts, the “rationale for admission rests on it supporting a conclusion that the relationship between the protagonists is conflictual”.158 In other words, in order to be sufficiently relevant and probative, the evidence needs only to support certain conclusions about a particular relationship, as opposed to supporting orthodox similar fact logic (i.e. “he’s behaved similarly in the past, so is more likely to have behaved in such a way on this occasion”). As a result, it is submitted that the presence of non-sexual violence arguably does support a conclusion that a relationship is conflictual and of such a nature and character as to have given rise to sexual violence. Regardless of what form the violence presents as, the perpetrator is in control, and their actions, sexual or not, reinforce this power dynamic. Thus, different types of violence should not be characterised as discrete, separate acts in an intimate relationship but as interrelated acts that perpetuate dominance and control.
C The Propensity to Dominate
There are multiple theories that have developed in an attempt to explain why domestic violence occurs. For example, Albert Bandura’s Social Learning Theory posits that behaviour is learned, not innate.159 Accordingly, some theorists suggest that if a child is exposed to violent behaviour between their parents, they may model this violent behaviour later in life.160 Another theory that seeks to explain domestic violence relates to the psychopathology of the perpetrator.161 These theories suggest that abusive behaviour stems from mood and personality disorders.162 While theories like this make sense, they fail to provide a full picture of domestic violence. Not
158 Mahomed v R, above n 54, at [3]; Campbell-Joyce v R, above n 34, at [24], citing Perkins v R, above n 83, at [20].
159 James Anderson and Kimberly Kras “Revisiting Albert Bandura’s Social Learning Theory to Better Understand and Assist Victims of Intimate Partner Violence” (2008) 17 Women Crim Justice 99 at 102. 160 Anderson and Kras, above n 159, at 105.
161 Ursula Kelly “Theories of Intimate Partner Violence: From Blaming the Victim to Acting Against Injustice Intersectionality as an Analytic Framework” (2011) 34 ANS Adv Nurs Sci E29 at E34.
162 Kelly, above n 161, at E34.
all children who witness violence grow up to be violent, and not all individuals with mood disorders abuse their intimate partners.
The explanatory flaws in these theories led to alternative explanations of domestic violence. The feminist model of dominance theory looks at domestic violence in its societal context, arguing that domestic and intimate partner violence is primarily a problem of men’s violence against women rooted in a long history of patriarchal beliefs that encourage male dominance and female subordination.163 This dissertation is not submitting that theories other than dominance theory are wrong, nor that dominance theory is the only feminist model, but submits that dominance theory provides a useful lens through which to view the nuances of domestic and intimate partner violence.
1 The Feminist Model: Dominance Theory
Dominance theory is a strand of feminist theory that argues gender is a socially constructed hierarchy in which women are subordinate to men.164 Discussed by Catharine MacKinnon, the dominance theory submits that one gender group has unjustifiably dominated the other in society, and that such domination is entrenched through seemingly “neutral” principles, which actually serve to further the male advantage.165 For example, MacKinnon describes how sports are defined by male physiology, and when women do not meet the male standard due to biological differences in physicality, their inferiority is explained by their difference to men.166 As a result, the man-made hierarchy that furthers the dominant group is reinforced, placing men above women.
Theorist Evan Stark posits it is the social endowment men inherit from sexual inequality that allows them to shape patterns of dominance to entrap and subordinate their intimate partner.167 This domination is tied to patriarchal beliefs that can be traced through history, and from which
163 See Anastasia Burelomova, Marina Gulina and Olga Tikhomandritskaya “Intimate Partner Violence: An Overview of the Existing Theories, Conceptual Frameworks, and Definitions” (2018) 11 Psychol Russ 128 at 131; Catharine MacKinnon “Difference and Dominance: On Sex Discrimination” Feminism Unmodified: Discourses on Life and Law (Harvard University Press, United States of America, 1987) 32 at 32.
164 Kathryn Rand “Making a Real Difference: The Dominance Approach in the Opinions of Justice Beryl J. Levine” (1996) 72 NDLR 1031 at 1033.
165 Katharine Bartlett “MacKinnon’s Feminism: Power on Whose Terms?” (1987) 75 Cal L Rev 1559 at 1560.
166 MacKinnon, above n 163, at 36.
167 Evan Stark Coercive Control: The Entrapment of Women in Personal Life (Interpersonal Violence) (Oxford University Press, New York, 2007) at 199.
society cannot escape.168 There are multiple ways to define “patriarchy”, but it was initially used to define a male-dominated family.169 Now, the notion of patriarchy is understood as the institutionalised system of male dominance that allows men to dominate, oppress, and exploit women.170
Many of the historical writings about women and the patriarchy indicate women were traditionally considered the property of their male partner.171 A woman’s role was a domestic one; of wife, mother and daughter.172 Women were under pressure to enter marriage, where they became the property of their husband. Consequently, they were legally and morally obligated to obey their husband, even where this morphed into control or violence.173 As such, domestic violence was considered a normal aspect of the patriarchal family, maintained by the political and economic structures that scaffold society. The power dynamic between men and women has continued through the elevated social status and respect paid to men, as well as the traditional acceptance of a wife as subservient to a husband.174
Examining dominance theory allows for a wider understanding of the social control and power afforded to men generally, and how in combination with historical acceptance of spousal violence, such dominance could have trickled into the family home. When considering domestic violence through the dominance framework, different types of violence can be recognised as stemming from the same underlying theme of dominance and control. Rather than viewing non-sexual violence as requiring a different state of mind or relationship dynamic as compared to sexual violence, as was done implicitly by the Court in S v R, both can be seen as an expression of dominance. As such, it is submitted that dominance is the link between seemingly discrete acts of violence.
The role of dominance was harnessed by Evan Stark in his work on coercive control, which is described as a pattern of behaviour used by perpetrators to control and dominate their intimate partner. Stark argues that men devised coercive control to offset the erosion of sex-based
168 Linda Mshweshwe “Understanding domestic violence: masculinity, culture, traditions” (2020) 6 Heliyon 1 at 1.
169 Abeda Sultana “Patriarchy and Women’s Subordination: A Theoretical Analysis” (2012) 4 Arts Fac J 1 at 2.
170 Sultana, above n 169, at 3.
171 Emerson Dobash Violence Against Wives (Open Books Publishing Ltd, England, 1980) at 32.
172 Dobash, above n 171, at 32.
173 Dobash, above n 171, at 33.
174 Dobash, above n 171, at 33.
privilege in the face of women’s gains.175 The male partner may exploit the institutional dominance granted to him by society to control and dominate his partner, perhaps living up to the social expectations of how men are placed above women, or as some theorists posit, motivated by an urge repossess dominance in light of increased gender equality.176
In a relationship of coercive control, the perpetrator seeks to isolate his partner and regulate their everyday behaviour. While there is a high prevalence of co-occurrence of coercive control with other forms of violence,177 the presence of violence is not necessary. A person’s entire life can become regulated by their partner, without that partner ever laying a hand on them. This reiterates the notion that a person need not be violent to force compliance, lending support for the submission that it is control and dominance that links seemingly unrelated acts.
Growing recognition of coercive control has led to criminalisation in England and Wales, Scotland, the Republic of Ireland, and Northern Ireland.178 New South Wales recently proposed the Crimes Legislation Amendment (Coercive Control) Bill 2022, which creates a standalone offence for coercive control.179 This Bill comes after extensive consultation, as well as the Domestic Violence Death Review Team’s report that revealed coercive control is a significant precursor to domestic violence homicide.180 Their review noted that 111 of the 112 intimate partner domestic violence homicides between 2008 and 2016 in New South Wales were characterised by a relationship of coercive control by the perpetrator.181 Given the recognised prevalence of control in relationships of domestic and intimate partner violence, it is submitted that the presence of dominance and control should factor into the assessment of whether different “types” of violence are “broadly similar”.
D Conclusion
176 Stark, above n 167, at 171
177 Caley Otter and Meg Bosanko What is coercive control? (Parliamentary Library and Information Service, Parliament of Victoria, March 2022) at 6.
178 Attorney General, Minister for Women “Criminalising coercive control one step closer” (media release, 20 July 2022).
179 Attorney General, Minister for Women, above n 178.
180 Domestic Violence Death Review Team NSW Domestic Violence Death Review Team Report 2017-2019
(2020) at 153.
181 Domestic Violence Death Review Team, above n 180, at 153.
This chapter has explored the dominance theory as a means to assess different types of violence in an intimate relationship. As discussed in this dissertation, admissibility of relationship evidence can turn on whether it consists of “broadly similar” offending to the current charge. This chapter has endeavoured to question the assumptions sometimes underpinning that assessment in light of the dominance theory, which is the notion that men have consistently dominated women in both public and private spheres. By employing dominance theory as a way in which to assess domestic violence, the distinction between different forms of violence falls away and reveals the underlying motivation of perpetrators: to dominate and control their partners, expressed through violence.
CHAPTER FOUR: TAKING DOMINANCE SERIOUSLY
A Introduction
The previous chapter explored dominance theory as a tool through which to assess domestic violence, which enables a greater understanding of the nature and nuances of these relationships. Dominance theory indicates how different types of behaviour by a perpetrator can be linked by dominance, and thus should be considered “broadly similar”. As an example of how dominance operates in an intimate relationship, Chapter Three looked at coercive control, a pattern of behaviour used by perpetrators to dominate and control their partner.
In light of the discussion of dominance theory in Chapter Three, this chapter seeks to “take dominance seriously”, and interrogates how doing so could pave the way for a shift in understanding relationships of domestic violence, and in turn, the relevance and probative value of relationship propensity evidence in this context. To do this, I discuss two recent Court of Appeal cases, Pahi and Holmes, where evidence of non-sexual violence was admissible in relation to charges of sexual violence, in contrast from the judgments of S v R and H v R discussed in Chapter Two. After discussing the judgments in Pahi and Holmes, I revisit S v R and H v R, and suggest the consequences of assessing those two cases through a dominance lens.
The defendant, Mr Pahi, had pled guilty to one charge of injuring with intent to injure for assaulting the complainant’s head.182 He was subsequently convicted on one charge of sexual violation by unlawful sexual connection, and one charge of sexual violation by rape against the complainant. Mr Pahi appealed these convictions, with one of the grounds being that the District Court erred in admitting propensity evidence of previous non-sexual violent offending towards the complainant.183
182 Pahi v R, above n 7, at [1].
183 Above n 7, at [2](b).
Mr Pahi and the complainant had been in an “on and off” relationship for approximately nine years and had four children together.184 During an “off” period on 17 May 2016, Mr Pahi went to the complainant’s house to see the children, and he complainant asked him to leave once the children went to bed.185 He refused, and an argument resulted. Mr Pahi grabbed the complainant’s head, causing her to fall from her chair, and then dragged her down the hallway.186 He struck her face several times with a closed fist, resulting in “significant swelling and deep bruising”.187 The complainant fell to the ground, and Mr Pahi forced her on the bed and applied pressure to her neck, making it difficult for her to breathe. There were injuries to the complainant’s neck, arms and legs, and her blood was found on her wall.188
Immediately after this incident, Mr Pahi continued to verbally abuse the complainant.189 Mr Pahi drove her to pick up her son from basketball, and when they returned to her house, she wanted him to leave so she could call the police.190 Mr Pahi followed her inside and started yelling at her. He told her to sit on the couch, and she complied out of fear of being physically assaulted.191 Mr Pahi sat next to her and touched her knee, and the complainant felt it was obvious he wanted sex. She told him to stop and go home, but he said “he need[ed] it”.192 He pulled her pants down, and while she tried to pull them back up he said “just fucking let me do this and then ... I’ll go home”.193 He performed oral sex on her, and then had sexual intercourse with her, which formed the sexual violation charges.194 At trial, Mr Pahi said the sexual activity was consensual “make-up sex”, which the complainant denied.195 While the jury was unable to reach a verdict, he was convicted on both sexual violation charges at his retrial.196
184 At [5].
185 At [6].
186 At [6].
187 At [6], citing R v Pahi [2018] NZDC 4770 [Sentencing notes] at [3].
188 At [6].
189 At [7].
190 At [7].
191 At [7].
192 At [7].
193 At [7].
194 At [7] to [8].
195 At [8].
196 At [10].
Before the first trial, the Crown sought to admit propensity evidence relating to four previous convictions for violent offending against the same complainant.197 The defence opposed admission, but in a pre-trial ruling, Judge Butler held the propensity evidence was highly probative to the intent to injure charge (which Mr Pahi had not yet pled guilty to).198 Judge Butler went on to note that in relation to the alleged sexual offending, the probative value of the evidence remained live with the result that “the issues at trial need to be further developed in relation to the alleged sexual offending”.199 The Judge also noted that the argument for admission is stronger if consent is the issue.200
The previous convictions related to non-sexual violent offending on three different occasions.201 On the first occasion, on 17 April 2011, the complainant went to Mr Pahi’s home to pick up their son. When she went inside, Mr Pahi grabbed her by the throat, took her to a bedroom, kneed her in the ribs, and punched her in the mouth. This formed the first conviction of male assaults female.202 On the second occasion, 24 July 2013, Mr Pahi went to the complainant’s house uninvited and refused to leave when asked. When she said she no longer wanted to be in a relationship with him, he ripped off her necklace and squeezed her neck for around 10 seconds. He was convicted of male assaults female.203 On the third occasion, 20 July 2014, Mr Pahi complained that the complainant had taken $20 from his wallet, and when she denied this, he threatened to assault her with a baseball bat. He then punched her head multiple times, dragged her to her bed by her hair and stomped on her ribs. He was convicted of injuring with intent to injure and threatening behaviour.
Mr Pahi pled guilty to injuring with intent to injure prior to the first trial.204 The defence argued that the propensity evidence should not be admitted as it was not probative in the context of the remaining trial issues, being the sexual violation charges.205 Part way through the trial, Judge Barry said the central trial issue was whether what occurred was make-up sex, and that the “prior history of violence was highly relevant to questions of consent and reasonable belief
197 At [41].
198 At [42].
199 At [42], citing R v Pahi, above n 187, at [24].
200 At [42], citing R v Pahi, above n 187, at [24].
201 At [41].
202 At [41].
203 At [41].
204 At [43].
205 At [43].
therein”.206 He ruled that the 2013 and 2014 convictions were admissible, but said the 2011 conviction (the first occasion) “simply adds bulk without any further probative value”, and its admission may lead the jury to give disproportionate weight to the other acts.207
On appeal, the defence submitted that it was difficult to see how previous convictions for violence could be propensity evidence on subsequent charges of sexual violation.208 Further, if the basis for admission is that it goes to the complainant’s consent, then that evidence “stands on its own” and “[a]ny previous convictions unconnected to allegations of subsequent non- consensual sex are irrelevant and extremely prejudicial”.209
As discussed in Chapter Two, the Court of Appeal in both S v R and H v R held there was no linkage between sexual and non-sexual violence, and thus, the evidence of prior violent offending was deemed inadmissible (or, in H v R, not cross-admissible).210 This was largely due to a mischaracterisation of the evidence of physical violence as not “broadly similar” to sexual violence. Instead, the Court should have considered whether the evidence was probative of dominance and control in the respective relationships.
Rightly so, the Court of Appeal in Pahi took a step in this direction and dismissed the defence’s argument that there was no link between the sexual and non-sexual violence.211 The Court also reiterated the Crown’s submission that in the context of relationship evidence, concepts of coincidence and linkage “are less significant than what the evidence says about the dynamics of the relationship”.212
While the Court in Pahi identified that non-sexual violence can be introduced to support a charge of sexual violence, there was an underlying notion that admissibility was based at least in part on the complainant’s statement that her acquiescence to sexual violence was connected to a fear of non-sexual violence.213 The Court noted that the non-sexual violence had
206 At [44].
207 At [44].
208 At [47].
209 At [47].
210 S (CA145/2020) v R, above n 5, at [44]; H (CA595/2021) v R, above n 6, at [50].
211 Pahi v R, above n 7, at [50].
212 At [48].
213 At [50].
implications in relation to the complainant’s assertion that she considered she may get a “hiding” if she resisted his sexual advances.214
Nonetheless, Pahi indicates that on some occasions, courts are willing to admit evidence of non-sexual violence to support a charge of sexual violence. However, the complainant in Pahi identified a link between her fear of violence and her acquiescence to sexual activity, while in S v R, the complainant’s failure to make that connection herself seemed fatal. Returning to Pahi, it is unclear whether the evidence of non-sexual violence would have been admissible in the absence of the self-identified linkage, a point I return to below. While Pahi may not go much further than S v R, Holmes does, where the Court explicitly recognised the role of dominance in relationships of domestic violence.
In Holmes, the Court of Appeal held relationship evidence of non-sexual violence by the defendant against a former partner admissible in relation to charges of sexual violence against the defendant’s current partner.215 This is a major development for relationship evidence, as not only was the physical violence held admissible in relation to sexual violence charges, but the evidence of physical violence was against a former partner as opposed to the current complainant.
Mr Holmes was convicted of multiple charges against his partner, the complainant, including three charges of rape, one being a representative charge, and two charges of sexual violation by unlawful sexual connection.216 Mr Holmes appealed his convictions for the sexual offences, one of the grounds being that evidence of his offending against a former partner should not have been admitted as propensity evidence.217
214 At [50].
215 Holmes v R, above n 8, at [90].
216 Above n 8, at [1].
217 At [5](b).
Mr Holmes and the complainant, referred to as “Rose”, entered a relationship in mid-2015.218 Rose had four children, and she moved into Mr Holmes’ house with her two youngest children at the end of 2015.219 Mr Holmes started to emotionally control Rose, demanded sex from her, and belittled her when she refused.220 Mr Holmes’ control and abuse of Rose included verbal abuse, controlling behaviour, and verbal threats.221 Except for one occasion where Mr Holmes bit Rose’s ear during an incident of sexual violence, there was no suggestion the defendant assaulted her physically.222
The judgment goes through various incidents of alleged sexual violation. The “bathroom incident” involved forced sexual intercourse, during which the defendant aggressively bit the complainant’s ear, digitally penetrated her and raped her while ignoring Rose’s protests.223 The next alleged sexual violation was the “lounge incident”, where the defendant digitally penetrated the complainant despite her protests.224 When Rose continued to protest, Mr Holmes threatened to leave her. Eventually, Rose became so worn down by the abuse and felt powerless, and decided not to resist the sexual intercourse. She feared that if she did continue to resist, she would have to endure “hours of his emotional and mental torment”.225 The “hospital incident” formed the next sexual violation charge, where Mr Holmes forced Rose to have sexual intercourse with her days after she had given birth to their baby.226 In addition to these incidents, Mr Holmes was convicted of a representative charge of rape that covered the 15-month period that Rose lived in Mr Holmes’ house.227
At trial, Judge McDonald held that propensity evidence about Mr Holmes’ former partner, “Sally”, was admissible.228 Mr Holmes and Sally were in a relationship from 2011 to 2015.229
218 At [7].
219 At [9].
220 At [10].
221 At [11].
222 At [12].
223 At [15] to [17].
224 At [18] to [20].
225 At [20].
226 At [21].
227 At [22].
228 At [66].
229 At [27].
Throughout the relationship, Sally said to police that Mr Holmes was often physically violent towards her, and would verbally abuse her in a similar nature to his verbal abuse of Rose.230
In the District Court, Judge McDonald ruled that Sally’s summary of facts should be admissible as propensity evidence.231 He summarised the Crown’s argument that the evidence should be admissible, detailing the way Mr Holmes verbally abused both Sally and Rose, threatened them, and controlled their behaviour. In essence, the Crown’s position was as follows:232
The evidence showed a tendency for Mr Holmes to act in a particular way or to have a particular state of mind, that is, to use techniques that totally dominate and control both women.
On appeal, counsel for Mr Holmes submitted that there were “profound differences” between Sally and Rose’s allegations.233 In particular, while Mr Holmes was physically violent towards Sally, physical violence was “not a dominant feature of his relationship with Rose”, and thus, the propensity evidence should be inadmissible.234
The Court of Appeal discussed the need to identify the issue in dispute in the current charges against Rose in order to assess the probative value of Sally’s summary of facts.235 They noted that the issues were whether the sexual acts took place, whether Rose consented to the alleged acts, and if she did not consent, whether Mr Holmes knew she did not consent or lacked a reasonable belief she consented.236 In relation to Sally’s evidence, the central issue was whether her descriptions of the way Mr Holmes verbally abused, degraded, and controlled her had any probative value in relation to whether Rose consented, and whether Mr Holmes’ knew or lacked a reasonable belief in consent.237
The Court of Appeal went through the factors in s 43(3) to assess the probative value of Sally’s evidence.238 When considering the similarities between Sally and Rose’s evidence, the Court
230 At [11](a), [29] and [64], citing R v Holmes [2021] NZDC 4833 at [14].
231 At [64].
232 At [64], citing R v Holmes, above n 230, at [17] (emphasis added).
233 At [69].
234 At [69].
235 At [70].
236 At [73].
237 At [75].
238 At [78].
noted that there was some physical violence against Rose when Mr Holmes bit her ear.239 Additionally, they agreed with the Crown that sexual offending is violent offending, and “forced sex is a serious form of violence”.240 The Crown had argued that Mr Holmes did not need to inflict violence against Rose, “because his presence and words was enough to dominate” her,241 reflecting the nuances of dominance and control in a domestic violence context.242
The Court discussed that while Sally and Rose had different experiences in their relationships with Mr Holmes, he had used similar tactics to “undermine the dignity and autonomy of both women”.243 In Rose’s account, she felt so dehumanised that she gave up resisting to the defendant’s sexual demands.244 Sally’s evidence exposed a pattern of behaviour by Mr Holmes that ultimately spoke to his use of control in his intimate relationships. As such, the evidence was probative to whether Rose truly consented, and whether Mr Holmes could have reasonably believed that Rose consented.245 Additionally, Salley’s propensity evidence provides a backdrop for the jury to understand the level of abuse inflicted by Mr Holmes, that extended to dominance control of his partners. The Court of Appeal held Judge McDonald gave an adequate direction to the jury that negated the risk that Sally’s evidence would unfairly prejudice Mr Holmes.246 Ultimately, the Court of Appeal held Sally’s propensity evidence was rightfully admitted.247
Holmes represents a shift in the way relationship evidence regarding sexual and non-sexual violence is characterised. Both judgments noted there were differences between Sally and Rose’s experience, particularly that Sally experienced non-sexual violence, and not sexual violence, while Rose experienced sexual violence, and only one incident of non-sexual violence.248 However, both the trial Judge and Court of Appeal recognised that beneath the differences in “types” of violence used, at the core of the relationships was Mr Holmes’ use of
239 At [82].
240 At [82].
241 At [64], citing R v Holmes, above n 230, at [16].
242 Gretchen Arnold “A Battered Women’s Movement Perspective of Coercive Control” (2009) 15 Violence Against Women 1432 at 1433.
243 Holmes v R, above n 8, at [84].
244 Holmes v R, above n 8, at [84].
245 At [88], citing R v Holmes, above n 230, at [57] to [58]; at [90].
246 At [89].
247 At [90].
248 At [69].
strategies that operated to completely control and dominate both women.249 Further, the use of these strategies was considered relevant to whether Rose truly consented to sexual intercourse with Mr Holmes, and, in light of Mr Holmes’ extensive control over Rose, whether he could possess a reasonable belief in her consent.250 This was particularly highlighted by Rose’s account that she stopped resisting the defendant’s sexual demands to avoid inevitable emotional abuse and overall exhaustion.251 By allowing evidence of non-sexual violence to be adduced without an explicit mention of a fear of physical violence, the Court rightly recognised the role of dominance and control in the intimate relationship.
D Revisiting S v R and H v R Through a Dominance Lens
(a) Returning to the conclusion the offending was not “broadly similar”
As discussed, the Court of Appeal in S v R ruled the propensity evidence of non-sexual violence against the complainant was inadmissible in relation to the charges of sexual violence against the same complainant. The Court considered there was “no cogent connection” between the defendant’s tendency to inflict non-sexual violence and the state of mind required for sexual violation.252 Further, they considered the probative value of the physical violence related to whether the defendant had an attitude of hostility leading to physical violence towards the complainant.253 While the evidence of non-sexual violence indicated such an attitude of hostility, this was viewed by the Court as too remote from the question of hostility leading to sexual violence.254
There is friction here, as the issue in dispute must be identified as precisely as possible, which lends itself to a narrow framing of probative value,255 such as “a proclivity to be hostile and controlling in a physical way”.256 However, this is arguably the wrong approach in relationships
249 At [64], citing R v Holmes, above n 230, at [17]; at [76].
250 At [75].
251 At [100].
252 S (CA145/2020) v R, above n 5, at [37].
253 Above n 5, at [36] to [37].
254 At [36] to [37].
255 Bishop and McDonald, above n 59, at 170.
256 S (CA145/2020) v R, above n 5, at [36].
of domestic violence, as there is a wide range of behaviours that can be present in this context, but which are nonetheless closely and cogently connected by the underlying dynamic of dominance. As such, framing the issue in dispute as whether there was hostility between the protagonists of the type that results in physical violence created an artificial delinking of the sexual violence and the non-sexual violence. This result arose because the Court considered that the state of mind required to inflict physical violence was different to that needed to inflict sexual violence. As this dissertation argues, in the context of domestic violence, different types of violence are linked by the overarching theme of dominance. The state of mind is to dominate, and the various forms of violence are expressions of that dominance.
In some cases of domestic violence, there is no obvious violence at all, only subtle methods of coercion that range from isolating the complainant from friends and family, to non-consensual sex through coerced consent. In the case of S v R, framing the physically violent offending as probative of the type of hostility that results in physical violence meant that such offending was seen as too remote and not sufficiently connected with the question of whether sexual violence had also occurred.257 While the evidence met the relevance threshold in s 7, it failed ss 8 and 43. To adopt the majority’s approach in Mahomed, it was considered a “long stretch” to suggest the conviction evidence was capable of demonstrating active hostility towards the complainant leading to sexual violation against her.258
Instead of framing the propensity evidence as relevant to the issue of hostility leading to physical violence, the Court should have considered whether the non-sexual violence pointed towards a relationship of dominance and control on the part of the defendant. Framing the issue in this way allows the relationship to be viewed in a more appropriate light, as the factfinder is exposed to the true nature of the relationship as one characterised by various forms of violence. This in turn is important for the assessment of the elements of sexual violence: was there consent, and did the defendant reasonably believe there was? In other words, only by including a full picture of the dynamic of the relationship, one characterised by a propensity to dominate and control, including through physical violence, can the jury have true insight into whether the complainant was consenting to sexual activity, and, in light of how the defendant treated the complainant, whether he could reasonably believe she was consenting.
257 Above n 5, at [37].
258 Above n 5, at [29], citing Mahomed v R, above n 54, at [8].
(b) Returning to requiring a self-identified link between non-sexual and sexual violence
Notably, in S v R, the Court appeared to suggest that if the complainant had herself identified a linkage between her acquiescence to sex and a fear of violence, that might have changed the analysis of probative value and admissibility. Indeed, in Pahi, which had similar facts to S v R, when the complainant made such a linkage, the physical and sexual offending was seen as sufficiently, cogently connected, despite being different in nature. This, I submit, is unsatisfactory; courts should be willing to recognise the similarity and cogency of physical and sexual offending as indicative of a relationship characterised by dominance, regardless of whether complainants self-identify a linkage, for the reasons canvassed above. Further, requiring a complainant to link sexual and non-sexual violence places a heavy burden on the complainant to articulate her motivations for acquiescence.
(c) Returning to the perceived absence of a connection between physical violence and elements of sexual violence
Moreover, relying on a complainant to identify the link between physical violence and whether they consented ignores that such violence might also be relevant to the other key element of sexual violence: the defendant’s reasonable belief in consent. Even if a complainant is not herself identifying a linkage between the physical violence and her acquiescence, that is not to say that consent will not be made out. Further, the absence of a self-identified link does not preclude the physical violence from bearing on reasonable belief in consent. In S v R, without the evidence of non-sexual violence, the argument of reasonable belief may be more readily believed. If the factfinder knew the relationship was one characterised by violence, this knowledge may lead to questions as to whether he, in light of his attitude and behaviour towards the complainant, could have reasonably believed any sexual activity was truly consensual.
In S v R, the complainant’s acquiescence arguably should not be equated to consent, even if she did not actively refuse. In other words, it is unreasonable to believe in consent when violence is at play. While the “reasonable belief” standard is valuable in situations where the defendant truly did believe the sex was consensual, this standard needs to be interrogated in cases of prolonged domestic violence, like S v R and H v R. If dominance and control were taken seriously as a component in relationships of violence, evidence of non-sexual violence would be more likely considered “broadly similar” to sexual violence, and thus could be
admissible as probative of this point. Consequently, the factfinder would be given a broader context in which to understand the relationship, and in turn, to understand the complainant’s consent or acquiescence. Without it, the “reasonable belief” argument may be more credible, as there is no evidence of the other ways the defendant dominated the complainant’s life. In cases like S v R, the factfinder needs to know the offending did not happen in a vacuum, which admission of relationship evidence can do.
(a) Returning to the conclusion the offending was not “broadly similar”
Similarly to S v R, the relationship evidence of non-sexual violence was not considered “broadly similar” to sexual violence in H v R. As such, the evidence was inadmissible, which resulted in the artificial delinking of the two sets of offending. This conclusion stemmed from the Court’s perception that a different state of mind is required to inflict non-sexual violence than that required to inflict sexual violence. As discussed above, in the context of domestic violence, there are not two different states of mind. Rather, the violence is an expression of the underlying notion of dominance and control. When a relationship is characterised by dominance, all acts that perpetuate that dominance are “broadly similar”, even if they do not necessarily appear that way.
Physically dominating a person, sexually or not, is indicative of the nature of the relationship, and thus, should be considered “broadly similar” in a domestic or intimate partner violence context. Nonetheless, the Court in H v R held there was no link between the two sets of offending as there was no evidence that the sexual violence was associated with or accompanied by non-sexual violence. This echoes the requirement of a self-identified link in S v R, which ignores the nuances of domestic violence and the extent to which a defendant has dominance over their partner. Had the Court in H v R examined whether there was a relationship of dominance and control on the part of the defendant, the evidence of physical violence and sexual violence would arguably have been considered ”broadly similar”, and thus, held as cross-admissible propensity evidence.
E The Prejudice Enquiry
Before propensity evidence is admitted, it must be satisfied its probative value outweighs the risk of unfair prejudice.259 Although it is submitted that the evidence of non-sexual violence should have been admissible in relation to charges of sexual violence in both S v R and H v R, it is important to note the danger of such a ruling to the defendants. If the jury was aware that physical violence was present in the relationship(s), the charges of sexual violence may not be unexpected. These potential assumptions are why there is such a high bar to the admissibility of propensity evidence. It is important that a defendant is judged on the evidence before the jury as opposed to assumptions made based on knowledge of the defendant’s general character. However, where evidence is more probative, it follows that it will be more prejudicial.260 Thus, the fact admission of relationship evidence may be prejudicial to a defendant does not justify a ruling of inadmissibility.
F Conclusion
This chapter has sought to highlight the way future courts should approach the assessment of the admissibility of relationship evidence through a discussion of Pahi and Holmes, two Court of Appeal decisions that indicated a willingness to see dominance as a feature of violent relationships. In Pahi, the Court allowed admission, which may be attributed to the complainant’s identification of a fear of violence as part of her reason for consenting to sexual activity. However, the Court in Holmes went further, and admitted evidence of non-sexual violence against a person other than the complainant in relation to charges of sexual violence committed against the complainant. This is the approach that should be taken by future courts, as it rightly recognises the role of dominance in relationships of domestic violence.
After the discussion of Pahi and Holmes, this chapter revisited S v R and H v R, and suggested the consequences of properly recognising the role of dominance in those judgments. In essence, the relationship evidence of non-sexual violence would likely have been recognised as “broadly similar” to the charges of sexual violence, and thus, admissible. This would have allowed the jury to be aware of the context surrounding the offending, upholding the purpose of relationship evidence.
259 Evidence Act, s 43(1).
260 Mahomed v R, above n 54, at [7].
This dissertation has illustrated that while types of violence may be different in nature, they should be conceptualised as interrelated, “cogently connected” acts, linked by an underlying theme of dominance. Without the recognition of dominance as a component of domestic violence, different forms of violence will continue to be categorised as discrete, unrelated acts. Not only would this fail to recognise the complex nature of domestic violence, but crucial evidence explaining the dynamics of domestic violence relationships may continue to be absent from the criminal trial.
This dissertation has focused on heterosexual relationships, with a male defendant and a female complainant. However, domestic violence is not exclusive to these parameters, and it is equally important to examine the relationship between dominance and domestic violence in LGBTQIA+ relationships.261 Future work should also assess the prevalence of other forms of violence in domestic relationships, such as financial, reproductive, and digital violence.
Propensity evidence, specifically relationship propensity evidence, is a complex area of law, largely due to the disconnect between the statutory provisions and their applicability to relationship evidence. Consequently, case law plays an important role, and has indicated that the predominant consideration regarding the admissibility and probative value of relationship evidence is whether such evidence is “broadly similar” to the offending that makes up the current charge. While non-sexual violence and sexual violence may be considered different in nature, as in S v R and H v R, this dissertation submits that in the context of domestic violence relationships, different forms of violence are linked by dominance. Thus, the offending is “broadly similar”, and future courts should be cognisant of such.
261 LGBTQIA+ is an abbreviation for lesbian, gay, bisexual, transgender, queer or questioning, intersex, asexual and more; The Center: The Lesbian, Gay, Bisexual & Transgender Community Center “What is LGBTQIA+?” (2022) <https://gaycenter.org>.
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J R S Forbes Similar Facts (The Law Book Company Limited, Sydney, 1987).Jackie Clark and The Aunties Her Say (Penguin Random House, New Zealand, 2021). Jana Jasinski “Theoretical Explanations for Violence Against Women” in Claire Renzetti,
Jeffrey Eldson and Raquel Bergen Sourcebook on Violence Against Women (Sage Publications, California, 2001) 5.
Jess Hill See What You Made Me Do: Power, Control and Domestic Violence, (Black Inc., Australia, 2019)
Jo Dixon “Feminist Theory and Domestic Violence” in Gerben Bruinsma and David Weisburd Encyclopedia of Criminology and Criminal Justice (Springer New York, New York, 2014) 1612.
Liz Kelly “The Continuum of Sexual Violence” in Jalna Hanmer (ed) and Mary Maynard (ed) Women, Violence and Social Control (MacMillan Press Ltd, London, 1987).
Mike Redmayne Character in the Criminal Trial (Oxford University Press, New York, 2015).
Rebecca Dobash and Russel Dobash Rethinking Violence Against Women (Sage Publications, California, 1999).
Rebecca Dobash and Russel Dobash Violence Against Wives: A Case Against the Patriarchy
(Open Books, England, 1980).
Richard Mahoney, Elisabeth McDonald, Scott Optican and Yvette Tinsley The Evidence Act 2006: Act & Analysis (3rd ed, Brookers Ltd, Wellington, 2014).
Samuel Phillips and Andrew Amos A Treatise on the Law of Evidence (8th Ed, J Butterworth and Son, London, 1838).
D Journal Articles
A E Acorn “Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense” (1991) 11 OJLS 63 at 64.Abeda Sultana “Patriarchy and Women’s Subordination: A Theoretical Analysis” (2010- 2011) 4 The Arts Faculty Journal 1.
Aileen McColgan “Common Law and the Relevance of Sexual History Evidence” (1996) 16 OJLS 275.
Amanda Albert “The use of MacKinnon’s dominance feminism to evaluate and effectuate the advancement of women lawyers as leaders within large law firms” (2006) 34 Hofstra L Rev 291.
Anastasia Burelomova, Marina Gulina and Olga Tikhomandritskaya “Intimate Partner Violence: An Overview of the Existing Theories, Conceptual Frameworks, and Definitions” (2018) 11 Psychol Russ State Art 128.
Andrea Ewing “Case note: Consent and ‘Relationship Expectations’ – Christian v R [2017] NZSC 145” (2017) 43 NZCLR 357.
Andreia Machado “Male Victims of Female-Perpetrated Partner Violence: A Qualitative Analysis of Men’s Experiences, the Impact of Violence, and Perceptions of Their Worth” (2020) 21 Psychol Men Masc 612.
Andrew Palmer “The Scope of the Similar Fact Rule” [1994] AdelLawRw 4; (1994) 16 Adel L Rev 161. Ann Cahill “Unjust Sex vs Rape” (2020) 31 Hypatia 746.
Anna Clark “Domestic Violence, Past and Present” (2011) 23 J Women’s Hist 193. Anna High “Christian v R on s 128A(1) Crimes Act 1961” (2018) 47 NZLJ 47.
Anna High “Sexual Dignity and Rape Law” (2022) 33 Yale J L & Feminism 1. Anna High “Reluctant Consent” [2022] NZLJ (forthcoming).
Ashlee Gore “It’s All or Nothing: Consent, Reasonable Belief, and the Continuum of Sexual Violence in Judicial Logic” (2021) 30 Soc Leg Stud 522.
Barrett Anderson “Recognizing Character: A New Perspective on Character Evidence” (2012) Yale L J 1912 at 1919.
Beverly McPhail, Noël Busch, Shanti Kurlkarni, Gail Race “An Integrative Feminist Model: The Evolving Feminist Perspective on Intimate Partner Violence” (2007) 13 Violence Against Women 817.
Blake D Morant “Introductory Essay: The Relevance of Gender Bias Studies” (2001) 58 Wash & Lee L Rev 1073.
Bridget A Harris and Delanie Woodlock “Digital Coercive Control: Insights From Two Landmark Domestic Violence Studies” (2018) 59 Br J Criminol 530.
Carmen Vives-Cases, Diana Gil-González and Mercedes Carrasco-Portiño “Verbal marital conflict and male domination in the family as risk factors of intimate partner violence” (2009) 10 TVA 171.
Catharine MacKinnon “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence” (1983) 8 Signs 635.
Chiara Rollero, Elisa Bergagna and Stefano Tartaglia “What is Violence? The Role of Sexism and Social Dominance Orientation in Recognizing Violence Against Women” (2021) 36 JIV NP11349.
Christoph Lumer “Unconscious Motives and Actions – Agency, Freedom and Responsibility” (2019) 9 Front Psychol 1.
Claire Cannon and Frederik Buttell “Illusion of Inclusion: The Failure of the Gender Paradigm to Account for Intimate Partner Violence in LGBT Relationships” (2015) 6 Partner Abuse 65.
Clare Cannon, Katie Lauve-Moon and Fred Buttell “Re-Theorizing Intimate Partner Violence through Post-Structural Feminism, Queer Theory, and the Sociology of Gender” (2015) 4 Soc Sci 668.
David Hamer “Similar Fact reasoning in Phillips: Artificial, Disjointed and Pernicious” [2007] UNSWLawJl 36; (2007) 30 UNSWLJ 609.
David Leonard “In Defense of the Character Evidence Prohibition: Foundations of the Rule Against Trial By Character” (1998) 73 Ind L J 1161.
Edina Erez “Domestic violence and the criminal justice system: An overview” (2002) 7 OJIN 1.
Etka Soni and Dr Rakesh Kumar Behamni “Domestic Violence” (2016) 4 Int J Indian Psychol 19.
Emily Jackson “Catharine MacKinnon and Feminist Jurisprudence: A Critical Appraisal” (1992) 19 J L & Soc 195.
Evan Stark “Rethinking Coercive Control” (2009) 15 Violence Against Women 1509.
Evan Stark and Marianne Hester “Coercive Control: Update and Review” (2019) 25 Violence Against Women 81.Felix Suessenbach, Steve Loughnan, Felix D Schönbrodt and Adam B Moore “The Dominance, Prestige, and Leadership Account of Social power Motives” (2019) 33 Eur J Pers 7.
Gretchen Arnold “A battered women’s movement perspective of Coercive Control” (2009) 15 Violence Against Women 1432.
Gunner Karakurt and Tamra Cumbie “The relationship between egalitarianism, dominance, and violence in intimate relationships” (2012) 27 J Fam Violence 115.
Hane Htut Muang “A dilemma in rape crisis and a contribution from philosophy” (2021) 8 Humanit Soc Sci 1.
Heather Douglas “The use of fire and threats to burn in the context of domestic and family violence and coercive control” (2022) Curr Issues Crim Justice 1.
J C Smith and David N Weisstub “The unconscious, myth, and the rule of law: Reflections on the persistence of gender inequality” (2016) 48 Int J Law Psychiatry 62.
Jacqueline M Gray “What constitutes a “reasonable belief” in consent to sex? A thematic analysis” (2015) 21 J Sex Aggress 337.
James Anderson and Kimberly Kras “Revisiting Albert Bandura’s Social Learning Theory to Better Understand and Assist Victims of Intimate Partner Violence” (2005) 17 Women Crim Justice 99.
Jane Kim “Taking Rape Seriously: Rape as Slavery” (2011) 35 Harv J L & Gender 263.
Janet Fanslow and Elizabeth Robinson “Sticks, stones, or words? Counting the prevalence of different types of intimate partner violence reported by New Zealand women” (2011) 20 J Aggress Maltreat Trauma 741.
Janet Fanslow, Laden Hashemi, Pauline Gulliver and Tracy McIntosh “A century of sexual abuse victimisation: A birth cohort analysis” (2021) Soc Sci Med 1.
Janet Fanslow, Laden Hashemi, Pauline Gulliver and Tracy McIntosh “Gender Patterns in the Use of Physical Violence Against a Violent Partner: Results of a Cross-Sectional Population-Based Study in New Zealand” (2022) 0 JIV 1.
Janet Fanslow, Ladan Hashemi, Zarintaj Malihi, Pauline Gulliver and Tracey McIntosh
“Change in prevalence rates of physical and sexual intimate partner violence against women: data from two cross-sectional studies in New Zealand, 2003 and 2019” (2021) 11 BMJ Open 1.
Janet Fanslow, Zarintaj Maligi, Ladan Hashemi, Pauline Gulliver and Tracey McIntosh “Prevalence of interpersonal violence against women and men in New Zealand: results of a cross-sectional study” (2022) 46 Aust N Z J Public Health 117.
Jennifer Lawson “Sociological Theories of Intimate Partner Violence” (2012) 22 J Hum Behav Soc Environ 572.
Jenny Tonsing and Kareen Tonsing “Understanding the role of patriarchal ideology in intimate partner violence among South Asian women in Hong Kong” (2019) 62 Int Soc Work 161.
Joel Best “Victimization and the Victim Industry” (1997) 3 Society 9.
John Marc Hamel “Perpetrator or victim? A review of the complexities of domestic violence cases” (2020) 12 JACPR 55.
Joseph Briggs and Russ Scott “‘Rape myths’ and ‘a reasonable belief’ of consent in R v Lazarus [2017] NSWCCA 279” (2020) 27 Psychiatr Psychol Law 750.
Julie R Tolmie “Coercive control: To criminalize or not to criminalize?” (2018) 18 Criminol Crim Justice 50.
Julia Tolmie, Rachel Smith, Jacqueline Short, Denise Wilson, Julie Sach “Social entrapment: a realistic understanding of the criminal offending of primary victims of intimate partner violence” (2018) 2 NZ L Rev 181.
Justin Sevier “Legitimizing Character Evidence” (2019) 68 Emery L J 441.
Katharine Bartlett “MacKinnon’s Feminism: Power on Whose Terms?” (1987) 75 CLR 1559. Kathryn Rand “Making a Real Difference: The Dominance Approach in the Opinions of
Justice Beryl J. Levine” (1996) 72 NDLR 1031.
Kenneth Arsenon “The Propensity Evidence Conundrum: A Search for Doctrinal Consistency” (2006) 8 UNDALR 31.
Kimberle Crenshaw “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) 1989 U Chi Legal F 139.
Laura Brill “MacKinnon and Equality: Is Dominance Really Different?” (1993) 15 U Ark Little Rock L Rev 261.
Laura Nadar “The Subordination Of Women In Comparative Perspective” (1986) 15 UAS 377.
Lee Vickers “The Second Closet: Domestic Violence in Lesbian and Gay Relationships: A Western Australian Perspective” (1996) 3 E Law 37.
Lilliana Freire-Vargas “Violence as a Public Health Crisis” (2018) 20 AMA J Ethics 25. Linda Mshweshwe “Understanding domestic violence: masculinity, culture, traditions”
(2020) 6 Heliyon 1.
Linell Letendre “Beating again and again and again: Why Washington needs a new rule of evidence admitting prior acts of domestic violence” (2000) 75 Wash L Rev 973.
LN Suman “Domestic Violence, Psychological Trauma and Mental Health of Women: A View from India” (2015) 1 Open J e1.
Louise Ellison and Vanessa Munro “A Stranger in the Bushes, or an Elephant in the Room? Critical Reflections Upon Received Rape Myth Wisdom in the Context of a Mock Jury Study” (2010) 13 New Crim Law Rev 781.
Luca Rollè, Giulia Giardina, Angela Caldarera, Eva Gerino and Piera Brustia “When Intimate Partner Violence Meets Same Sex Couples: A Review of Same Sex Intimate Partner Violence” (2018) 9 Front Psychol 1.
Marianne Hester and Catherine Donovan “Researching Domestic Violence in Same-Sex Relationships–A Feminist Epistemological Approach to Survey Development” (2009) 13 J Lesbian Stud 161.
Mark Turcott “Similar Fact Evidence: The Boardman Legacy” (1978) 21 CLQ 43.
Mary Ann Dutton, Stacey Kaltman, Lisa A Goodman, Kevin Weinfurt, Natalie Vankos “Patterns of Intimate Partner Violence: Correlates and Outcomes” (2005) 20 Violence Vict 483.
Mengzhu Fu “What will it take to end gender-based violence?” (2015) 29 Womens Stud 50. Michael P Johnson “Domestic Violence: It’s Not About Gender – Or Is It?” (2005) 67 J
Marriage Fam 1126.
Morrison Torrey “When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions (1991) 24 UC Davis Law Rev 1013.
Neena Malik and Kristin Lindahl “Aggression and dominance: The roles of power and culture in domestic violence” (1998) 5 Clin Psychol Sci Pract 409.
Orly Bareket and Nurit Shnabel “Domination and Objectification: Men’s Motivation for Dominance Over Women Affects Their Tendency to Sexually Objectify Women” (2019) 44 Psychol Women Q 1.
P Patra, Jyoti Prakash, B Patra and Puneet Khanna “Intimate partner violence: Wounds are deeper” (2018) 60 Indian J Psychiatry 494.
Patrick Letellier “Gay and Bisexual Male Domestic Violence Victimization: Challenges to Feminist Theory and Responses to Victims” (1994) 9 Violence Vict 95.
PB Carter “Forbidden Reasoning Permissible: Similar Fact Evodence a Decade After Boardman” (1985) 48 MLR 29.
Peter Brett “Abnormal Propensity or Plain Bad Character?” (1954) 72 Res Jud 471.
Rachel Bridges Whaley “The Paradoxical Relationship between Gender Inequality and Rape: Toward a Refined Theory” (2001) 15 Gend Soc 531.
Rebecca Campbell “Domestic Relationship Evidence in Queensland: An Analysis of a Misunderstood Provision” (2019) 42 UNSWLJ 430.
Rebecca Dobash, Russell Dobash and Kate Cavanaugh ““Out of the Blue”: Men Who Murder an Intimate Partner” (2009) 4 Fem Criminol 194.
Richard Andrias “Rape myths: A persistent problem in defining and prosecuting rape” (1992) 7 Crim Just 2.
Richard J Gelles “Power, Sex, and Violence: The Case of Marital Rape” (1977) 26 Fam Coord 339.
Richard Johnson “Changing Attitudes About Domestic Violence” (2002) 50 Law and Order 60.
Roderick Munday “The Admissibility of Evidence of Criminal Propensity in Common Law Jurisdictions” (1989) 13 VUWLR 223.
Ruth Lewis, Russell Dobash, Rebecca Dobash and Kate Cavanagh “Protection, Prevention, Rehabilitation or Justice? Women’s Use of the Law to Challenge Domestic Violence” (2000) 7 Domestic Violence: Global Responses 179.
Ruth Rosen “Sexism in History or, Writing Women’s History Is a Tricky Business” (1971) 33 J Marriage Fam 541.
Sarah McMahon and G Lawrence Farmer “An Updated Measure for Assessing Subtle Rape Myths” (2011) 35 Soc Work Res 71.
Sheri Johnson, Liane Leedom and Luma Muhtadie “The Dominance Behavioural System and Psychopathology: Evidence from Self-Report, Observational, and Biological Studies” (2012) 138 Psycho Bull 692.
Stephanie Bishop and Elisabeth McDonald “What’s in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases” (2011) 17 CanterLawRw 16.
Susanne Boethius and Malin Åkerström “Revealing hidden realities: disclosing domestic abuse to informal others” (2020) 21 NJC 186.
Sylvia Walby and Jude Towers “Measuring violence to end violence: mainstreaming gender” (2017) 1 J Gender Based Viol 11.
Ursula Kelly “Theories of Intimate Partner Violence: From Blaming the Victim to Acting Against Injustice Intersectionality as an Analytic Framework” (2011) 34 ANS Adv Nurs Sci E29.
Zlatka Rakovec-Felser “Domestic Violence and Abuse in Intimate Relationship from Public Health Perspective” (2014) 2 Health Psychol Res 62.
E Government Publications
Law Commission Evidence Law: Character and Credibility (NZLC PP27, 1997). Law Commission The 2013 Review of the Evidence Act (NZLC R127, 2013).
F Papers and Reports
Australian Attorney-General’s Department, AVERT Family Violence: CollaborativeResponses in the Family Law System “Paper: Dimensions, Dynamics and Impact of Family Violence” (2010).
Australian Law Reform Commission, interim report No 26, Evidence (Canberra, 1985). Caley Otter and Meg Bosanko What is coercive control? (Parliament of Victoria, Research
Paper No. 2, March 2022).
Christopher Dowling, Hayley Boxall, Anthony Morgan The criminal career trajectories of domestic violence offenders (Australian Government Australian Institute of Criminology No 624, 13 April 2021).
District Court of New Zealand “Criminal Procedure” <www.districtcourts.govt.nz>.
Domestic Violence Death Review Team NSW Domestic Violence Death Review Team: Report 2017-2019 (Report pursuant to section 101J(1) of the Coroners Act 2009 (NSW), 2020).
Elaine Mossman, Jan Jordan, Lesley MacGibbon, Venezia Kingi and Liz Moore Responding to sexual violence: A review of literature on good practice (Ministry of Women’s Affairs | Minitatanga Mō Ngā Wāhine, October 2009).
Evan Stark and Cassandra Wiener Coercive control in domestic relationships (Submission No 12 Response to the NSW Government Consultation on Coercive Control, 26 January 2021).
International Labour Organization Breaking barriers: Unconscious gender bias in the workplace (Research note, August 2017).
Joint Venture Prevention of Family and Sexual Violence Briefing to the Incoming Minister
(November 2020).
Ministry of Justice Attrition and progression: Reported sexual violence victimisations in the criminal justice system (1 November 2019).
Ministry of Justice New Zealand Crime and Victims Survey, Cycle 4 survey findings, Descriptive statistics, June 2022, Results drawn from Cycle 4 (2020/2021) of the New Zealand Crime and Data Survey (Ministry of Justice, Wellington, 2022).
Ministry of Justice New Zealand Crime and Victims Survey, Key findings, Descriptive statistics, May 2020, Results drawn from Cycle 2 (2018/19) and pooled data of the New Zealand Crime and Victims Survey (Ministry of Justice, Wellington, 2020).
Ministry of Justice New Zealand Crime and Victims Survey, Key findings, Descriptive statistics, June 2021, Results drawn from Cycle 3 (2019/2020) and pooled data of the New Zealand Crime and Victims Survey (Ministry of Justice, Wellington, 2021).
Ministry of Justice Safer Sooner: Strengthening New Zealand’s Family Violence Laws
(2016).New Zealand Police Ngā Pirihimana o Aotearoa Annual Report 2021 (November 2021). OECD “SF3.4. Intimate Partner Violence” (OECDE Family Database, January 2020).
Pam Rugkhla and Tina Dixson Criminalisation of Coercive Control (Australia Women Against Violence Alliance, Issues Paper January 2021).
Scottish Government Non-Sexual Violence in Scotland (2019).
World Health Organisation Violence against women prevalence estimates, 2018: Global, regional and national prevalence estimates for intimate partner violence against
women and global and regional prevalence estimates for non-partner sexual violence against women (World Health Organization, Geneva, 2021).
G Theses
Sarah Croxford “Has the Evidence Act Been a Successful Codification? Is it a True Code?” (LLM Research Paper LAWS546: Legislation, Victoria University of Wellington, 2015).
I News Articles
Amanda Gearing “Countering ‘rape as routine’: world expert explains the key to getting coercive control laws right” Domestic Violence, The Guardian (online ed, International, 11 August 2022).Arizona State University College of Liberal Arts and Sciences “What Are the Roots of Gender Inequality? Women’s Rights, Race and Reproduction” Newswise (online ed, Arizona, 1 June 2012).
Australian Associated Press “Coercive control could warrant seven years’ jail under draft NSW domestic violence laws” The Guardian (online ed, Australia, 20 July 2022).
Ben Strang “Ninety-four percent of sexual assaults go unreported – survey” RNZ (online ed, New Zealand, 20 May 2020).
Community Law “Criminal & traffic law” <https://communitylaw.org.nz>.
Denise Piper “Man jailed for 19 years for raping five domestic partners” Stuff (online ed, New Zealand, 7 July 2021).
Hayley Gleeson “Coercive control: The ‘worst part’ of domestic abuse is not a crime in Australia. But should it be?” ABC News (online ed, Australia, 19 November 2019).
Henry Belot “Work on national approach to coercive control to begin at attorneys-general meeting in Melbourne” ABC News (online ed, Australia, 12 August 2022).
Jan Jordan “The shocking truth about our sexual violence statistics” Stuff (online ed, New Zealand, 22 May 2020).
Kirsty Johnston “More victims are reporting family violence, but abusers aren’t facing court.
No-one knows why” Stuff (New Zealand, 5 September 2021).
Rosie Gordon “Last year described as ‘horror’ year for domestic violence in New Zealand”
Newshub (online ed, New Zealand, 7 January 2021).
The Associated Press “WHO study finds 1 in 3 women face physical, sexual violence” ABC News (online ed, New York, 10 March 2021).
Zoe Madden-Smith “It’s 2022 and NZ law still doesn’t define what consent is” Re: News
(online ed, New Zealand, 5 August 2022).
J Press and Media Releases
Attorney General, Minister for Women “Criminalising coercive control one step closer” (media release, 20 July 2022).Health Quality & Safety Commission “Seventh family violence deaths report highlights agencies’ duty of care” (media release, 7 June 2022).
Jan Logie “New report reveals barriers to prosecution and conviction for sexual violence cases” (release, 1 November 2019).
Make Lemonade “Help At Hand For NZ Domestic Violence Victims” (press release, 20 May 2022).
Sharon G Smith, Xinjian Zhang, Kathleen C Basile, Melissa T Merrick, Jing Wang, Marcie- jo Kresnow, Jieru Chen “The National Intimate Partner and Sexual Violence Survey (NISVS): 2015 Data Brief – Updated Release” (National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 2018).
World Health Organization “Devastatingly pervasive: 1 in 3 women globally experience violence” (online ed, New York, 9 March 2021).
K Speeches
David Hammer “CLI Seminar: Propensity Evidence Reform” (speech to Current Legal Issues, Queensland, September 2019).
L Internet Materials
BetterHelp Editorial Team “A History of Domestic Violence: How Much Have Things Changed?” (1 September 2022) Betterhelp <www.betterhelp.com>.Cedar Network “What is coercive control?” (2022) <https://cedarnetwork.org.uk>. Community Law “Individual rights & freedoms: Sexual orientation and your rights”
<https://communitylaw.org.nz>.
Courts of New Zealand “Sexual violation by rape – offending alleged prior to 1986 (Section 128 Crimes Act 1961)” <www.courtsofnz.govt>.
CPS “Rape and Sexual Offences – Annex A: Tackling Rape Myths and Stereotypes” (21 May 2021) <www.cps.gov.uk>.
Criminal Justice “Domestic Violence Theories” <www.criminal-justice.iresearchnet.com>.
Denise Tordella “Understanding the dynamics of intimate partner violence and coercive control” (2022) The Ferentz Institute: advanced psychotherapy training & education
<www.theferentzinstitute.com>.
Domestic abuse intervention programs: Home of the Duluth Model “Understanding the Power and Control Wheel” <www.theduluthmodel.org>.
Eliana Dockterman “50 Years Ago, Doctors Called Domestic Violence ‘Therapy’” (25 September 2014) TIME <https://time.com>.
Good Shepherd New Zealand “New Zealand Family Violence and Economic Harm Statistics” (2022) <https://goodshepherd.org.nz>.
Hiba Rahman “The Subordination Of Women: An Analysis Of The History of Gender Oppression (9 March 2022) Feminism In India <https://feminisminindia.com>.
James E Henderson Jr “Understanding the Complexity of Domestic Violence and How Children Experience It” (podcast, 23 January 2019) The Center for Child Welfare
<www.centervideo.forest.usf.edu>.
Janine Shaw “Gender and Violence: Feminist Theories, Deadly Economies and Damaging Discourse” (3 November 2017) E-International Relations <www.e-ir.info>.
Justice.govt.nz “Addressing family violence and sexual violence” (15 September 2022) Key initiatives <www.justice.govt.nz>.
Justice.govt.nz “Latest Crime Survey Reveals Surprising High Levels of Unreported Sexual Violence” News & Media <www.justice.govt.nz>.
Justice.govt.nz “Research & data” <www.justice.govt.nz>.
Kate Harding “I’ve Been Told I’m a Survivor, Not a Victim. But What’s Wrong With Being a Victim?” (27 February 2020) Time <www.time.com>.
Kristen Beesley “Sexual Assault is About Power: How the #MeToo campaign is restoring power to victims” (14 November 2017) Psychology Today
Lisa Aronson Fontes “Sexual Coercion in Intimate Relationships: Eight Tactics” (27 September 2021) Domestic shelters <www.domesticshelters.org>.
Mahdi Fakhouri “The Subordination of Woman In Histrocial Narratives of Gender Performativity (11 March 2021) Watchdogs Gazette <https://watchdogsgazette.com>.
Manly, Stewart & Finaldi Lawyers “Sexual abuse in relationships” (31 March 2021) Sexual Abuse <www.manlystewart.com>.
McLean Law “Upcoming Changes to the Evidence Act: What We Know So Far” (20 April 2020) <www.mcleanlaw.co.nz>.
Nancy Swarbrick “Domestic violence” (5 May 2011) Te Ara – The Encyclopedia of New Zealand <www.teara.govt.nz>.
National Network to End Domestic Violence “Domestic Violence: a Public Problem and a Public Health Concern” (7 April 2016) <https://nnedv.org>.
New Zealand Family Violence Clearinghouse “New research finds changes in rates of intimate partner violence in NZ” (30 March 2021) <https://nzfvc.org.nz>.
New Zealand Police Ngā Pirihimana o Aotearoa “Understanding Sexual assault and consent”
Ōcasa: Ōtepoti Collective Against Sexual Abuse “What is Rape?” <www.ocasa.org.nz>. Olivia Moorer “Intimate partner violence vs. domestic violence” (5 January 2021)
Eliminating racism empowering women YWCA Spokane <https://ywcaspokane.org>. Pallavi Prasad “‘Why Didn’t They Leave?’ and the Vicious Cycle of Abusive Relationships”
(2019) (29 June 2019) The Swaddle <www.theswaddle.com>.
Peggy Solic “Private Matter or Public Crisis? Defining and Responding to Domestic Violence” (May 2015) Origins: Current Events in Historical Perspective
<https://origins.osu.edu>.
Psychlopaedia “The impact of intimate partner violence” (14 September 2016) Psychlopaedia: Psychology to live by <https://psychlopaedia.org>.
Rape Prevention Education: Whakatu Mauri Trust “Sexual Violence” <https://rpe.co.nz>.
Richard Devine “10 Lessons from 10 Years on the Frontline: 5, The complexity of domestic abuse” (4 September 2020) Rich Devine Social Work
<https://richarddevinesocialwork.com>.
Ron Wallace “Domestic Violence and Intimate Partner Violence: What’s The Difference? (15 October 2015) American Military University EDGE <https://amuedge.com>.
Sexual Assault Kit Initiative “Victim or Survivor: Terminology from Investigation Through Prosecution” (2015) SAKI: Sexual Assault Kit Initiative <www.sakitta.org>.
Skylight Trust “Intimate Partner Violence” Skylight <www.skylight.org.nz>. Te Ara “Page 9. Sexual assault” <https://teara.govt.nz>.
The Advocates for Human Rights “Sexual Assault and Male Dominance” (1 February 2008) Stop Violence Against Women: A project of The Advocates for Human Rights
The Center: The Lesbian, Gay, Bisexual & Transgender Community Center “What is LGBTQIA+?” (2022) <https://gaycenter.org>.
Toah-NNest Te Ohaaki a Hine – National Network Ending Sexual Violence Together “Prevalence” <www.toah-nnest.org.nz>.
Toah-NNest: Te Ohaakii a Hine – National Network Ending Sexual Violence Together “Sexual violence and the law” <https://toah-nnest.org.nz>.
UKEssays “Theories of domestic violence” (25 May 2016) <www.ukessays.com>.
UN Women “Facts and figures: Ending violence against women” <www.unwomen.org>.
University of Auckland “Understanding family or relationship violence and abuse” Equity office te ara tautika (February 2021) <www.auckland.ac.nz>.
Women’s Aid until women & children are safe “What is coercive control?” (2022)
Women’s Refuge “Get Help” (2021) <https://womensrefuge.org.nz>.
M Other Resources
Progress of the world’s women 2019-2020: Families in a changing world UN Doc (2019).
Shine – Safer Homes in New Zealand Everyday “Submission on the Ministry of Justice public discussion document: ‘Strengthening New Zealand’s legislative response to family violence’ 2015”.
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