Tolmie, Julia --- "Pacific-Asian Immigrant and Refugee Women Who Kill Their Batterers: Telling Stories that Illustrate the Significance of Specificity" [1997] SydLawRw 25; (1997) 19(4) Sydney Law Review 472
[*] Lecturer in Law, Sydney University. Special thanks to Robyn Scott and Irene Baghoomians for their skillful research assistance.
[1] Crenshaw, K, Mapping the Margins: Identity Politics, Intersectionality, and Violence Against Women (1991) 43 Stanford LR 1243.
[2] Stubbs, J, and Tolmie, J Race, Gender, and the Battered Woman Syndrome: An Australian Case Study (1995) 8 Canadian Journal of Women and the Law 122.
[3] This term is used by Rimonte, N, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defence (1991) 43 Stanford LR 1311. She explains that the term is used to identify collectively immigrants and refugees from Asia and the Pacific Rim countries. Highly diverse, this population represents about twenty-three different ethnicities, speaking roughly forty different languages. Many individuals included within the term Pacific-Asian probably would not identify themselves as such ... they prefer to identify themselves as Chinese, Filipino, Japanese, Korean, Vietnamese, Indian, Thai, or Cambodian ... at 1312. She uses this term in order to stress the many shared characteristics of the diverse groups.
[4] There are three in total that I am aware of. My initial plan was also to examine R v Wang [1989] NZCA 290; [1990] 2 NZLR 529, however I was not able to access the transcript.
[5] Unreported, The Supreme Court of New South Wales, Criminal Division, 24 August 1992; Sentencing, unreported, The Supreme Court of New South Wales, Criminal Division, 8 September 1992; In the Court of Criminal Appeal New South Wales (appeal on the issue of provocation) (1994) 72 A Crim R 1; Sentencing on re-arraignment, unreported, The Supreme Court of New South Wales, Criminal Division, 7 October 1994.
[6] Unreported , in the High Court of New Zealand, Auckland Registry, 4 October 1993.
[7] A point which is open to debate.
[8] Volpp, L, (Mis)Identifying Culture: Asian Women and the Cultural Defence (1994) 17 Harvard Womens Law Journal 57.
[9] Id at 96.
[10] Celermajer, D, Family Law: Issues in the Vietnamese Community Multiculturalism and the Law: Research Paper 1. The Australian Law Reform Commission, Sydney at 5, is embarked on the task of acknowledging the diversity of individual experiences whilst, at the same time, recognising the strategic importance of addressing the general: There is an immediate danger in discussing a particular group in terms of community, or to speak of the values or culture of that group. Any implication that there is a stable, homogenous core of culture to which all members adhere fails to recognise the diversity that exists within the identified group. Thus [in] discussion we must balance the recognition of diversity with a concept of certain values which form part of the cultural fabric, and which may influence people belonging to that group.
[11] I should add that I have had limited personal experience of what it means to be in a physically battering (cf a psychologically battering) relationship, that I have never had to use force in order to protect myself or my dependants and I have never been processed by the criminal justice system.
[12] These are powerful arguments against a person with my subject positioning embarking upon this project at all. Nonetheless I have chosen to do so, albeit with considerable discomfort, because I believe that I have a responsibility to address issues of race in my work on gender and the battered woman syndrome.
[13] Here I found useful the work by Volpp, above n8. She lays down a number of guidelines to be followed in presenting a cultural defence. First, be specific. Focus on the testimony of the actual accused rather than starting with generalisations about general group behaviour and attempting to fit her behaviour into that. Cultures can be stereotyped. Also the accuseds identity can be presented as synonymous with her cultural group which amounts to cultural determinism. Secondly, use transcultural psychology that is, the experiences of women who migrate rather than the culture as observed in the country of origin. Thirdly, wherever possible use experts who are immigrants themselves rather than white anthropologists whose subject positions are in opposition. Finally, collapse the difference between the cultureless dominant culture and the cultural minority culture.
[14] I also planned to raise possibilities, ask questions and offer alternative readings of the given material rather than provide definitive truths. This strategy reflects the tentative nature of my research.
[15] By comparison there is a wealth of material constituting Aboriginal women as the objects of study, although still comparatively less so than there is in respect of Aboriginal men. This abundance of material is arguably a product of the way in which the process of colonisation has operated in respect of Aboriginal people. They have been endlessly studied, policed and monitored.
[16] Tolmie, J, Secretary (1996) 20 Criminal Law Journal 223. Muy Ky Chhay (1994) 72 A Crim R 1 (the appeal judgment) was one of the few decisions to be reported. One can only presume that the reason it received this exceptional treatment is because it clarifies a legal principle in relation to the defence of provocation. It stands for the proposition that the conduct of the deceased which provokes the accuseds violent response need not be a specific incident, it can be a long history of abuse.
[17] Above n5.
[18] See the discussion in Stubbs, J and Tolmie, J, Battered Woman Syndrome in Australia: A Challenge to Gender Bias in the Law? in Stubbs, J (ed), Women, Male Violence and the Law, 1994, at 192; Donnelly, H, Cumines, S and Wilczynski A, Sentenced Homicides in NSW, 1990-1993, A Legal and Sociological Study, (1995) at 52. The study indicates that fourteen of seventeen female offenders received sentences of five years or less.
[19] R v Woolsey, Unreported, Supreme Court of New South Wales 19 August 1993; R v Taylor, Unreported, Supreme Court of S.A., February 1994; Runjanjic and Kontinnen, Unreported, Supreme Court of South Australia, 10 February 1993.
[20] Migrant women from non-English speaking backgrounds suffer greater emotional and mental stress than many other prisoners, and greater isolation from children and family members. They are likely to experience prejudice and discrimination at the hands of other inmates and they often find themselves isolated by language barriers within the prison. They are especially disadvantaged with regard to access to psychiatric counselling and interpreting services. See Easteal, P, The Forgotten Few: Overseas-born Women in Australian Prisons, 1992; Kang, J, Gender Issues in Settlement: Access to Services (1992) Bureau of Immigration Research: Second National Immigration Outlook Conference, at 344.
[21] See Comas-Diaz, L and Greene, B, Women of Colour in Battering Relationships (eds), Women of Colour; Integrating Ethnic and Gender Identities in Psychotherapy (1994) at 429.
[22] Zecevic [1987] HCA 26; (1987) 71 ALR 641 at 652.
[23] Rozee, P and Van Boemel, G, The Psychological Effects of War Trauma and Abuse on Older Cambodian Refugee Women (1989) 8 Women and Therapy 23 at 33 describes the traumatic history of the Cambodian people as follows: They experienced the overthrow of their government by Pol Pots regime, forced labour, starvation and physical beatings, deaths of many family members and close friends often within their presence, a gruelling and dangerous escape to Thailand where they faced overcrowded, unsanitary and abusive conditions, and separation from close family members many of whom they fear dead. Since arriving in the United States, they have experienced further poverty, alienation, deculturation, isolation, and lack of acceptance by many Americans.
[24] The following potted history comes from Vickery, M, Kampuchea: Politics, Economics and Society (1983); Becker, E, When the War was Over: The Voices of Cambodias Revolution and its People (1986); Burchett, W, The China Cambodia Vietnam Triangle (1981); Chandler, D and Kiernan, B (eds), Revolution and its Aftermath in Kampuchea: Eight Essays 1988.
[25] Id at 214.
[26] Whether the forcible march into rural areas was accompanied by police brutalisation, administrative harassment and looting depended on which part of the city inhabitants left from and in which direction they were required to go in. Some survivors recount how families and friends were separated at this stage and people died on the way or were taken away to study, a euphemism for death or torture. Vickery, M, Democratic Kampuchea Themes and Variations in Chandler and Kiernan above n24 at 108.
[27] Officially the population was divided into three categories, called Full Rights (poor peasants), Candidate (wealthy peasants and petty bourgeoisie) and Depositee (capitalists and foreign minorities (generally Chinese) and in actuality all people evacuated from towns). Others conceptualise the categories as those of workers peasants and soldiers: Becker, above n24 at 218.
[28] Barnett, A, Democratic Kampuchea: A Highly Centralised Dictatorship in Chandler and Kiernan above n24 at 219.
[29] The Department of Immigration and Ethnic Affairs, Kampuchea: Ethnic Background Paper, (1978) The Department of Immigration and Ethnic Affairs citing Chanda, N, Dying for the Right to Live (1979) Far Eastern Economic Review 16.
[30] Becker, above n24 at 20.
[31] Shawcross, W, The Quality of Mercy: Cambodia, Holocaust and Modern Conscience (1984).
[32] Hosking, P (ed), Hope After Horror: Helping Survivors of Torture and Trauma (1990); Mattson, S, Mental Health of Southeast Asian Refugee Women: An Overview (1993) 14 Health Care for Women International 155 at 158.
[33] Becker, above n24 at 304: In 1977 the government implemented a national work schedule that theoretically guaranteed three days of rest for the first time the 10th, 20th and the 30th of each month. More often than not cooperatives either ignored the schedule or used those days to hold mass meetings for political education ... In fact the work schedule continued harsh and uncompromising.
[34] People were expected to work on average from about 12 to 14 hours a day for less than 150 grams of rice: Burchett, above n24 at 110.
[35] Burchett, above n24 at 82.
[36] In the later stages of the regime executions became more open and wholesale. Burchett, above n24 at 127.
[37] Becker, above n24 at 245.
[38] Burchett, above n24 at 97, citing from the account of Dith Munty.
[39] The difficulties that the ethnic Chinese faced are reflected in the high percentage of Cambodian born refugees in Australia in 1986 who were of Chinese ethnicity (40 per cent compared with 1.9 per cent in Cambodia): The Bureau of Immigration and Population Research, Community Profiles: 1991 Census: Cambodia Born (1995) at 2.
[40] Becker, above n24 at 239.
[41] Id at 221.
[42] Id at 245.
[43] This is a possibility raised by the fact that My Ky Chhay and her husband spoke Chinese at home and that her brother testified using a Mandarin interpreter. It is not clear from the transcript what language she was speaking in Court, but she used a Mandarin interpreter at the police station.
[44] Private property and money were abolished. Peoples movements were dictated by the State. Communal eating was enforced. Sexuality was repressed. People were segregated by sex. Many women stopped menstruating entirely because of malnutrition and trauma. Becker, above n24 at 180.
[45] It has been said that for every refugee who is resettled, one died in flight: Muecke, M, Caring for Southeast Asian Refugee Patients in the USA (1983) 73 American Journal of Public Health 431. Life in a refugee camp on the Thai-Cambodian border has also been described as an ongoing trauma: Arnold, M, Hope for Tomorrow Understanding and Helping Cambodian Refugees, in Hosking, P (ed), above n32 at 92; Pittaway, E, Practical Solutions Refugee Women Identify Their Own Needs in Hosking, P (ed), above n32 at 120. Women face structural inequalities in the refugee camps, as well as the additional trauma of rape and sexual abuse: Pittaway, E, Refugee Women The Neglected Majority?, (1991) 12 Migration Action 3; Rozee, P and Van Boemel, G, The Psychological Effects of War Trauma and Abuse on Older Cambodian Refugee Women (1989) 8 Women and Therapy 23 at 34.
[46] In fact the experiences of Cambodian women were discussed openly for the first time in 1985 at the United Nations Decade for Women Conference in Nairobi, Kenya: Although difficult to ascertain directly, there are many anecdotal reports of rape, battering and torture of Cambodian women and girls, as well as documented cases of rape of Cambodian women by Thai guards in the refugee camps: Rozee and Van Boemel, id at 29. See also Ledgerwood, J, Changing Khmer Conceptions of Gender: Women, Stories, and the Social Order, (1990) at 202; Kulig, J, Sexuality Beliefs Among Cambodians (1994) 15 Health Care for Women International 69 at 72. These authors have also suggested that there were specific tortures reserved for women during the Pol Pot regime.
[47] Of course there are other explanations for Muy Ky Chhays lies that may also potentially have arisen had the court been cognisant of the need to explore her unique positioning. For example, that she lied out of shame because what she did was not acceptable within her own cultural mileu. Or that she lied because she was not in fact defending herself against violence, but against an intolerable marriage. A marriage in which the option of leaving was so much less possible for her than it would have been for an acculturated Australian. Clearly some of these explanations are not as compatible with self-defence as it has been traditionally constructed within the Australian criminal law as the explanation which I have chosen to explore.
[48] R v Muy Ky Chhay, Unreported, The Supreme Court of New South Wales, Criminal Division, 1 September 1992 at 15.
[49] Ibid at 8.
[50] Rozee and Van Boemel, above n45 at 32-42, suggest that post traumatic stress should be called a sociosis rather than a neurosis since many of the symptoms are normal reactions to an abnormal situation. They point out that there is a need to look outside the person at the situational reality of their world. Similar comments have been made about the battered woman syndrome.
[51] Reid, J and Strong, T, Torture and Trauma: The Health Care Needs of Refugee Victims in NSW, (1987) at 12. See also Cohon, D, Psychological Adaptation and Dysfunction Among Refugees 15 International Migration Review 225 at 271.
[52] Kinzie, J D, Fredrickson, R, Ben, R, Fleck, J and Karls, W Post-traumatic Stress Disorder Among Survivors of Cambodian Concentration Camps (1984) 141 Am J Psychiatry 635 at 649, found that a unique aspect of the symptoms was the avoidance of thoughts, behaviours and any activities that would remind them of the past. See also Mollica, R, Wyshak, G and Lavelle, J, The Psychosocial Impact of War Trauma and Torture on Southeast Asian Refugees (1987) 144 Am J of Psychiatry 1567 at 1571.
[53] Kinzie, ibid.
[54] Mollica et al, above n52. They found that Cambodian patients had experienced more trauma and/or torture than other Indochinese groups but that Cambodian women who were separated, divorced or widowed and did not have spouses had experienced more traumatic experiences than all other clinical subgroups.
[55] Id at 1570. They commented that obtaining a detailed trauma history from the refugee patient is extremely difficult. It must be delicately collected from the patient because it can easily stimulate serious emotional distress.
[56] Rozee and Van Boemel, above at n45.
[57] Above n52.
[58] See also Mattson, above n32 at 162.
[59] Dang, K, and Alcorso, C, Better On Your Own: A Survey of Domestic Violence Victims within the Vietnamese, Khmer and Lao Communities (1990) at 12.
[60] Nicolson, D, Telling Tales: Gender Discrimination, Gender Construction and Battered Women Who Kill [1995] 3 Feminist Legal Studies 185 at 189.
[61] Crenshaw, above n1 at 1282, labels this representational intersectionality. In her words: Representational intersectionality concerns the ways in which common images of race and gender converge to create unique narratives about women of colour.
[62] See, eg, Hamilton, A, Fear and Desire: Aborigines, Asians and the National Imaginary (1990) 9 Australian Cultural History 14. She argues that: Physically and behaviourally, Asian women are constructed as really feminine, docile, undemanding and childlike.
[63] My description of these representations arise out of my discussions with Eliane Morel who provided me with invaluable insight based on her experiences as an Australian with a Vietnamese family history.
[64] I am using this example in a critical sense. The manner in which Rose Hancock has been constructed in the media is extremely problematic. See Robinson, K, Of Mail-Order Brides and Boys Own Tales: Representations of Asian-Australian Marriages (1996) 52 Feminist Rev at 54.
[65] I am referring to the testimony of Donald, A, in R v Muy Ky Chhay, above n5, 24 August 1992 at 2-5. The same stereotypes may have been at work in the case of R v Wang, above n4.
[66] See Stubbs and Tolmie, above n18; Leader-Elliot, I, Battered but not Beaten: Women Who Kill in Self-Defence (1993) 15 Syd LR 15 (4) December (1993) at 403.
[67] Above n65 at 151-166.
[68] See the testimony of Lee Young , above n65 at 79 and Bak Seng Kuor, above n65 at 97.
[69] Above n65 at 144.
[70] Above n65 at 146.
[71] See, eg, Ho, C, An Analysis of Domestic Violence in Asian American Communities: A Multicultural Approach to Counselling Diversity and Complexity in Feminist Theory 129
[72] In a family and group oriented society where the individual represents the family, guilt and shame assume a different meaning. The Asian concept of loss of face implies that the entire family clan loses respect and status in the community when an individual is shamed ... This places a severe burden on the individual to keep harmony and order, and to minimise any conflicts and problems which could bring guilt and shame to the family. Id at 134.
[73] The corollary of this may be that people are careful not to notice what is not their business. See, eg, the testimony of the neighbours, Vouen Preap, above n65 at 56 and Yie Houang, above n65 at 60.
[74] Above n65 at 147A.
[75] Lee Young, above n65 at 79.
[76] Near the end of the testimony the witness was allowed to answer in the affirmative to the question, Did you ever see him raise his hand to her? Note however that her brother in law, Bang Seng Kour, and her sister, Muy Keav, were permitted to testify as to Cambodian culture.
[77] Above n65 at 167.
[78] See, eg, Legerwood, above n47 at 98.
[79] See; Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965.
[80] Above n65 at 151.
[81] Hastings, above n65 at 5-6. Similar evidence was given by a detective constable, Kerrie Lewis, who later examined the accuseds arms and legs and testified that she had no injuries, above n65 at 137.
[82] Although it reappears in Gleeson CJs remarkable judgment in the Court of Appeal. See R v Muy Ky Chhay (1994) 72 A Crim R 1.
[83] Above n65 at 140.
[84] See Dang and Alcorso, above n59 at 12.
[85] Above n65 at 146.
[86] Above n65 at 147A.
[87] Above n65 at 117-118.
[88] Above n65 at 168.
[89] Above n46 at 63. There is no corresponding equivalent for men.
[90] The virtuous woman is naturally a virgin before marriage and a faithful wife. She is also industrious and because of her virtue the family is financially successful. Traditionally, it is a womans job to take care of the family finances. Above n46 at 104.
[91] Frye, B, and DAvanzo, C, Cultural Themes in Family Stress and Violence among Cambodian Refugee Women in the Inner City, (1994) 16(3) Advances in Nursing Science 64 at 74, looked at the cultural beliefs, taboos, coping strategies, and management of family stress and violence among Khmer Refugee women in the context of the American inner-city environment. Informants were asked what they would do if a family member became physically or emotionally violent. The most frequent responses were a non-confrontative and a withdrawal response; to talk softly and to do nothing. This expression [talk softly] coupled with the expression talk sweetly has been observed by both investigators to be used frequently by Cambodian women. This approach contrasts sharply with the directness of American culture and traditional Western modalities of approaching issues of stress. For the professional nurse oriented in the Western world view, this response to stress may be perceived as maladaptive, whereas such behaviour is affirmed and rewarded within the Cambodian culture. Note that Dang and Alcorso, above n59 found that in only 11 out of 80 responses had the women they interviewed said that they would submit as a main way of reacting to domestic violence. However many of the other women had submitted as best they could for long periods. 16 said they would escape or leave without welfare assistance, 20 said they would seek welfare assistance and 11 said they would call a relative or friend.
[92] Ledgerwood, above n46 at 63, 147, 278.
[93] Above n46 at 181.
[94] Dang and Alcorso, above n59 at 10. See also; Lovell, M, Tran, T and Nguyen, C, Refugee Women: Lives in Transition 30 (1987) International Social Work 317.
[95] Above n3 at 1319.
[96] See, eg, MacCrimmon, M, The Social Construction of Reality and the Rules of Evidence (1991) 25 UBCLR 36 at 48. It is also the case that many sectors of the Australian community place great value in the sanctity of marriage and the family as the primary social building block.
[97] Above n3 at 1323. See also; Rebehy, M, Women and Violence An Ethnic Perspective Men and Women Against Violence, at 94; Maglizza, E, Migrant Women and Domestic Violence: The Dilemma of Whether to Stay or Leave, in Hatty S (ed), National Conference on Domestic Violence, Proceedings (1985) Vol 1 at 35. In the words of Rebehy: In communities where the womans status is based on her position as a wife, mother and housekeeper, breaking away from the violent relationship also means losing her standing and respect within the community. This may affect the reputation of her whole family.
[98] This issue in relation to the accused in the particular case was raised by the judge but not pursued by defence counsel. Counsel did not articulate his reasons for choosing not to address this question.
[99] Above n46.
[100] Above n59 at 23, 27.
[101] Discussed in Dickenson, C, Amaral, G and San Pedro, M, Refugee Women: Their Special Needs Australian Womens Health Network: Proceedings from the First Northern Territory Womens Health Conference (1989) at 81.
[102] Above n59 at 29.
[103] Kang, above n20 at 345 sees isolation is the key issue differentiating the settlement process of male and female immigrants and their ability to access services. See also, Lawton, K, Needs of NESB Women in Womens Refuges: A Perspective from a Remote Rural Area in the North West of Western Australia, Immigration Research Bulletin (No 6) April 1992 at 30.
[104] The Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia, (1991) at 140. For a discussion of the level of animosity in Australia to Asian migrants and refugees see also, Ip, D, Kawakami, I, Duivenvoorden, K and Chang Tye, L, Images of Asians in Multicultural Australia, (Nov 1992).
[105] Dang and Alcorso, above n59 at 18-19, found that an important factor in determining a womans response to domestic violence was what the woman saw as being the impact of her actions on the children. Children also helped or hindered the womans flight from the violence.
[106] Rasche, C, Minority Women and Domestic Violence: The Unique Dilemmas of Battered Women of Color; Kanuha, V, Women of Color in Battering Relationships in above n21 at 428.
[107] Reid, J and Strong, S, above n51 at 110.
[108] Bureau of Immigration and Population Research, above n39 at 18. It is not known what proportion of these had skills that were transferable from their country of origin. Obviously the skills of subsistence farmers would not be useful for those located in an urban area.
[109] Id at 20. Compared to 35.9 per cent for men who were Cambodia-born. At the time of the Census the unemployment rate among the Cambodia-born population was 39.6 per cent, more than three times the rate for the total Australian population (11.6 per cent) and double that for immigrants from non English speaking countries (16.8 per cent).
[110] Id at 22. See the Department of Immigration and Ethnic Affairs, Immigrant Womens Issues, Report From a National Conference Held in Canberra, 26-27 February 1985 at 12.
[111] Id at 28.
[112] Id at 32.
[113] The difference was most marked in the age group 25-44 years where 64.8 per cent of females compared to 46.3 per cent of males spoke English not well or not at all.
[114] Above n39 at 32. See also Tung, M, Gender Issues in Access to English Language Training Bureau of Immigration Research, Second National Immigration Outlook Conference Proceedings, 11-13 November 1992 at 332.
[115] Mollica, above n52; Kinzie, above
[116] Tung, above n114, analyses access to English language training and demonstrates that government policies can have a far reaching effect on womens access. Eg, priority of access to newly arrived immigrants has an impact on women who tend to defer their English language learning to undertake child rearing and family responsibilities. Priority access to registered long term unemployed has major implications for gender equity in that NESB women generally do not register themselves with CES if their spouses are employed or are the registered recipients of income support allowances. A ceiling of hours on tuition disadvantages students with slower learning pace (generally characterised by low levels of formal education, low level literacy and non-Roman script in first language).
[117] Department of Immigration and Ethnic Affairs, above n110 at 14.
[118] In the majority of interviews Dang and Alcorso undertook, above n59 at 20, the women had ended up leaving or being forced out of the house that was previously the couples home.
[119] Australian Law Reform Commission, Equality Before the Law: Justice for Women, Chapter 12; Womens Legal Resources Centre, Quarter Way to Equal: A Report on Barriers to Access to Legal Services for Migrant Women, (1994) at 48-50.
[120] Division 1.5 of the Migration Regulations contains the domestic violence provisions.
[121] Testimony of Judy Walker, above n65 at 172.
[122] It seems odd that the sentencing judge, above n65 at 10, interpreted one of the triggers causing the accused to snap and kill the deceased as the threat of the deceased to leave her with three children to fend for herself. This seems highly unlikely given statistics that demonstrate that women do not generally murder in response to separation. This is largely a male response pattern. See Wallace, A, Homicide: The Social Reality, NSW Bureau of Crime Statistics and Research (1986).
[123] Dang and Alcorso, above n59 at 28. Ledgerwood, above n46 at 85, 292, discusses the breakdown of traditional social controls vis a vis domestic violence.
[124] Above n71 at 129.
[125] Kulig, J, Sexuality Beliefs Among Cambodians: Implications for Health Care Professionals (1994) 15 Health Care for Women International 69 at 71.
[126] Ledgerwood, above n46.
[127] Above n91.
[128] Kang, above n20 at 345; Dang and Alcorso, above n59 at 3.
[129] Bertram, C, (Blacktown Migrant Resource Centre Inc), N.E.S.B. Domestic Violence Awareness Campaign, (May 1992) at 15.
[130] Dang and Alcorso, above n59 at 21, 30 found that half of the women in their study who had actually stayed in a refuge had bad experiences there. Lawton, above n103 at 30; Moo, A, Marginalisation and Migrant Women in Refuges in Hatty, above n97 at 31; Ciurak, I, Problems Facing Migrant Women in Domestic Violence, in Hatty, above n97 at 37.
[131] Ovadia, T and Webb, L, Report of the Non-English speaking Sub-Program: National Domestic Violence Education Program, (June 1990) at 14, 28.
[132] Above n3 at 1323.
[133] Ethnic specific services are frequently not able to deal with domestic violence issues as they lack the training to do so, cannot always guarantee the confidentiality necessary in dealing with such sensitive matters, are often under resourced and have a wider role to play (and do not therefore have the time to devote to special problems). See Nilda Rimontes discussion of the Asian- Pacific community in Los Angeles, above n3 at 1317.
[134] Above n1 at 1251. In Crenshaws words: Political intersectionality examines interrelationships between the antiracist and feminist discourses of opposition ... [It] reveals the ways in which mutually exclusive notions of race and gender leave women of colour without an adequate political framework to overcome the violence in their lives.
[135] ONeill, S and Bathgate, J, Policing Strategies in Aboriginal and Non-English Speaking Background Communities, Final Report, at 131; Dalglish, C, Policing and Immigration, and Chan, D, Police Services for Immigrants: A New South Wales Study, in Bureau of Immigration Research: Second National Immigration Outlook Conference, (11-13 Nov 1992) 312 at 315 and 321 at 322; The Womens Legal Resources Centre, above n119 at 52-56.
[136] ONeill and Bathgate, id at 132, 142; Chan, id at 322.
[137] The Womens Legal Resources Centre, above n119 at 53.
[138] Above n59 at 15. In 32 out of 52 cases the police had never been called. In 11 cases the woman herself had called the police on at least one occasion and in nine cases someone else had called the police on at least one occasion.
[139] Id at 17, 18.
[140] Such as poverty and limited access to legal aid in family law matters.
[141] And in using other social services to cope with the effects of domestic violence, eg, doctors. Mary Rebehy, Women and Violence An Ethnic Perspective Seminar: Men and Women Against Violence, The National Council of Women of New South Wales Inc, (30 August 1993) 89 at 93.
[142] Above n59 at 18.
[143] Janet Chan found that one third of police respondents who had used accredited interpreters complained that the interpreters were not readily available, they were not truthful or objective in their interpretation, they had inadequate knowledge of legal terminology or a poor command of English, or both interpreters and victims found the process embarrassing: Policing in a Multicultural Society: A Study of the New South Wales Police, unpublished report (1992).
[144] It is important not to confuse language competence with interpreting competence; Pauwels, A, Cross-Cultural Communication in the Health Services: Communicating with Migrant Patients, (1995) at 136. The New South Wales Task Force on Domestic Violence, in its report to the Honourable N Wran, Premier of NSW, (1981) at 158, raised concerns that some untrained persons had gone beyond their role as interpreters to advise women to return to their husbands without the knowledge of the other party involved (the lawyer or refuge worker). Another problem is where untrained interpreters do not interpret everything the client says because they are embarrassed for the client.
[145] Even if names are not used the communities are so small that information can be readily identifiable: Tien, L, Southeast Asian American Refugee Women in Women of Colour; Integrating Ethnic and Gender Identities in Psychotherapy, above n21at 493.
[146] See, eg, Wilson, P and Storey, L Migrants and the Law, The Vietnamese: A Case Study, Footscray Community Legal Centre, (1991).
[147] Chung, D, Asian Cultural Commonalities: A Comparison with Mainstream American Culture in Furuto, S, Biswas, R, Chung, D, Murase, K and Ross-Sheriff, F (eds), Social Work Practice with Asian Americans 27 at 36.
[148] Chung, ibid, draws a range of comparisons between Asian and Euro American styles of communication. He argues that Asians, coming from a high context culture, often rely on nonverbal communication, while Euro Americans rely more on words. Asians speak indirectly and insert key points at the end. Their oral messages are often implicit and depend more on context. They treat communication as a way of engaging a person or as a social art, whereas Euro Americans consider communication as a practical tool for exchanging information, ideas and opinions and treat it as a right of self expression. Asians value harmony and avoid direct conflict. There are also a range of issues which it is assumed everyone in the relationship knows and which are embarrassing to verbalise.
[149] Particularly tonal languages. Both Muy Ky Chhay and Jai Fong Zhou were speaking Chinese languages and both were accused of coming across as rehearsed in the Court room. In Muy Ky Chhays case this may have also been because the part of her testimony that she delivered in English was in the form of an uninterrupted and prepared statement.
[150] Above n6.
[151] Above n5.
[152] Section 48 of Crimes Act 1961 (NZ), s48.
[153] Arguably the test in New Zealand is more lenient because the accuseds force is judged for reasonableness within the subjective framework of their own perceptions of the world, as opposed to the court determining what it believes to be the objective reality of the situation. Whether or not there is a great divergence between the two tests is, however, open to argument. In Conlon (1993) 69 A Crim R 92, the New South Wales test was considered to be a test not of what the reasonable person would have believed, but of what the accused himself might have reasonably believed in all the circumstances, which included, in this case, his extreme intoxication.
[154] Mary Tee (friend), above n6 at 67, 69, we do not normally talk to other people about what happen in our family, I mean we talk about the good one, we do not talk about the bad one. Gah-Ling Joe (sister), above n6 at 165, 166, Because it is a Chinese tradition that even to your close relatives you do not discuss your marriage so as not to bring shame on yourself.
[155] Although two attacks between the incident and her trial had been witnessed by family and friends.
[156] And there was some suggestion that that person was too intimidated by her husband to remember much in court.
[157] Also a doctor had seen her after the assault at her sisters house and had documented bruising on her elbow, the left side of her skull and an ulcer on her upper lip. The injuries at this stage were two-three days old. On the power of physical evidence see Schepple, Manners of Imagining the Real (1994) 19 Law and Social Inquiry 995.
[158] His story was that they had a good relationship and he did not know why she had requested a separation. He had only assaulted her once (fortuitously the only assault prior to the incident that was witnessed by a third party) but on that occasion they had both hit each other. He had no idea why she had attacked him on the night in question. They had signed separation papers, eaten together, made love and then he had woken up to her attack. He had never owned an air rifle. He had no idea that she had had terminations. He had never damaged her door or possessions in the course of forcing entry. He had never been served with a non-molestation order from the Family Court.
[159] This was the only external witness to the accuseds husbands violence prior to the incident for which she was being tried.
[160] He was very vague and noncommittal. He did not remember the conversation and at first tried to say that he had only met Jai Fong Zhous brother for the first time after the incident. He denied that he was afraid of her husband and had been intimidated by him into forgetfulness.
[161] Mary Tee was asked If a Chinese woman were being physically abused or raped by the husband would she talk about it to anyone in terms of your culture? This question was overruled.
[162] See, eg, the critique in Volpp, above n8.
[163] Initially she did not know that wife bashing was illegal in New Zealand.
[164] Initially he had refused to sign separation papers and eventually when he did he said that they were paper and meant nothing.
[165] He initially persuaded her to let him in by promising her that he would change or on one occasion telling her that he wouldnt get police bail on some criminal charges unless she let him live with her. When this stopped working he forced his way in. He forced her door, he broke a window in her door and in her bedroom and climbed in, he set fire to her door, or he smashed the headlights and window on her car or kicked at her door until she admitted him.
[166] Above n6 at 83.
[167] Above n6 at 86.
[168] Her sister said that she did not like taking Tam to Jai Fongs place but was afraid of him. She was asked whether as her older sister she would be able to turn to you for help? Her response was I am unable to support her.
[169] He said it was normal in his culture for a husband to hit his wife. He did not know whether it was against the law in New Zealand or China to hit your wife but he did say that in his village it often happens and there are no consequences. Above n6 at 157.
[170] Could you see any way out of this situation? I could not see any way out. Did you think you could escape from your husband? I had thought about it, I wished to leave my husband, to escape from him but eventually I was unable to do so and got beaten more severe and he was not even afraid of the police. When he meets the policeman it seems as if hes meeting his brother. Above n6 at 89.
[171] On the facts there were a number of things about the night in question that were different and which indicated that the accused could have viewed the situation as more serious or dangerous in some way. Her husband had not previously hit her with a cleaver. He had not previously tied her up. He had not previously taunted her and said that she could not escape. Very significantly, he had not ever threatened to kill their child before.
[172] Above n6 at 134.
[173] Above n6 at 123.
[174] Above n6 at 12.
[175] Above n6 at 3.
[176] His violence, lack of money and inadequate support from the police and the criminal justice system. She also says that the less education a woman has the less she is likely to leave, although she does not cite her sources for this assertion or say whether this is a result of the fact that an educated woman is also likely to have access to other middle-class resources such as money and housing.
[177] No support network or family pressure to stay. The expert also provides a brief discussion of the beliefs that might keep a woman in a violent relationship, marriage is forever, children need two parents.
[178] Primarily low self esteem, although the expert is careful to point out that violent relationships produce low self esteem.
[179] Although on the facts the problem is not so much that the accused did not leave or seek help as that the help sought was inadequate.
[180] Above n18; Sheehy, E, Stubbs, J and Tolmie, J, Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations (1992) 16:6 Criminal LJ 369; Stubbs, J, The (Un)reasonable Battered Woman?: A Response to Easteal (1992) 3.3 Current Issues in Criminal Justice 359.
[181] Above n6 at 15. ...if you accept that she was raped and dealt with on that evening in the way that she says she was, then you might well think naturally that this would be an extremely stressful situation, and since there is this physiological reaction to acute stress her perception of her circumstances would therefore be distorted, and this is important as a matter for you to consider when you remember self-defence is concerned with the circumstances as the accused believed them to be. Above n6 at 9.
[182] Leader-Elliot, above n66; Tolmie, J, Provocation or Self-Defence for Battered Women Who Kill? in Stanley Yeo (ed), Partial Defences to Murder (1990) at 61.
[183] Stubbs and Tolmie, above n18.
[184] Above n6 at 152.
[185] Above n6 at 6.
[186] Stubbs and Tolmie, above n18.
[187] Above n6 at 150.
[188] The Crown pointed out that in the original experiments with dogs in cages there was no suggestion that the dogs attacked the abusers. The expert explains this on the basis that the violence there, unlike here, did not increase to the point where the dogs snapped and retaliated.
[189] Above n6 at 144.
[190] Above n6 at 138, 140.
[191] Above n6 at 137.
[192] Above n2.