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Communtity Law Manual | Family violence & elder abuse | The criminal law and family violence

Protections against family violence: An overview

The criminal law and family violence

Many acts of family violence will also be against the criminal law

Some things that can be family violence – like psychological abuse, or a pattern of controlling behaviour – may not be things that are against the criminal law and that you can get the police to arrest the person for. If you get a protection order from the Family Court, the other person won’t get a conviction and a criminal record (unless they don’t obey the order – then they can be arrested and charged by the police).

But many acts of family violence – including physical and sexual abuse – will also be against the criminal law. This means you can complain to the police, and they’ll be able to arrest the person and charge them in the criminal courts. This means the District Court or the High Court (not the Family Court, which is where family violence protection orders are made).

Someone who commits family violence could potentially be committing, for example:

  • assault on a family member – this is a new offence with a heavier penalty than ordinary assault (see the next heading)
  • strangling or suffocation – this is a new offence (see the next heading)
  • rape / sexual violation or indecent assault – see the chapter “Gender and sexuality” for information about these offences, under “Sexual orientation and your rights” for information about this offence
  • indecent assault
  • threatening to kill or do serious harm – this is punishable by up to seven years’ jail.

New crimes of assaulting a family member, and strangling or suffocation

Crimes Act 1961, ss 189A, 194A

As part of a package of law changes in 2018–19 to give better protection against family violence, the criminal law was also changed to introduce some new criminal offences.

  • Assaulting a family member – If someone assaults a person with whom they’re in a family relationship, they can be jailed for up to two years. This is a heavier penalty than applies in other cases (the penalty for common assault is up to one year’s jail – see the chapter “Common crimes”).
  • Strangling or suffocating someone – It’s a serious crime to assault someone by strangling or choking them around the throat or neck, or by suffocating them through blocking off air to their mouth or nose. The person can be jailed for up to seven years for this.

Bail restrictions for people charged with family violence offences

Bail Act 2000, ss 8(3A), 21, 22, 30AAA

When the police or a judge are deciding whether to release on bail a person who’s been charged with a family violence offence, the main factor is the need to protect the victim and other family members. If they do grant bail, they can impose any conditions on the bail that they think are needed to protect the victim and family (like where the person charged is allowed to go). For information about bail generally, see the chapter “The criminal courts”.

There are also special bail rules if someone is charged with breaching a family violence protection order: see in this chapter “Breaches of protection orders: When the other person doesn’t obey the order”.

No-contact conditions while remanded in custody

Criminal Procedure Act 2011, ss 168A, 168B

If a person charged with family violence offences is going to be held in prison (“remanded in custody”) while waiting for their case to be heard, the judge can impose no-contact conditions, banning them from having any contact with the victim or any other person. These conditions are given to the prison where the person is held, and will override their right to receive visitors, send and receive mail, and make phone calls. If they breach these conditions, the breach can be entered in the permanent court record and considered later if the person applies for bail.

Forced marriages or relationships

Crimes Act 1961, ss 207A, 208

It’s a crime to use violence or threats or intimidation to force you into a marriage, even if the marriage doesn’t formally happen or isn’t a type of marriage legally recognised in New Zealand. The penalty is a jail term of up to five years.

If someone kidnaps you for the purposes of a forced marriage or to make you have sex, either with them or some other person, this is an even more serious crime, punishable by up to 14 years’ jail. The same penalty applies if they pressure you into agreeing to a forced marriage or to sex, or if they get your agreement by fraud.

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