The Circumstances as She Believed Them to Be: Asian Migrant Women and the Importance of Context in the Courtroom

Abstract

New Zealand courts are failing in their consideration and application of self-defence in situations where the defendant is an Asian migrant victim of IPV. Self-defence requires an assessment of the circumstances as the defendant believed them to be. Asian migrant women experience myriad forms of oppression that compound and intersect. They face distinctive barriers to leaving abuse that are not experienced by non-immigrant, Pākehā women. This paper argues that where the defendant is an Asian migrant IPV victim, a thorough understanding of the cultural factors and institutional inequity they face is crucial to a correct application of the law of self-defence. R v Wang is an example of the courts ignoring salient contextual factors and failing to understand the defendant’s circumstance when considering self-defence. This paper considers the use of Battered Woman Syndrome (BWS) expert evidence and concludes that it provides a pyrrhic victory at best to Asian migrant defendants who are IPV victims. R v Zhou illustrates how BWS fails to accurately communicate the lived experiences of Asian migrant defendants to the court and risks further perpetuating racist stereotypes about Asian cultures and Asian migrant women.

Keywords: Intimate partner violence, Self-defence, Asian migrant women, Battered Women Syndrome

JEL Classification: K00, K14