Domestic Homicide Reviews: evidence briefing

3. Legislating Domestic Homicide Reviews and Selecting Cases

3.1 Legislation

Key findings:

Legislation has been established for the DHR in 11 out of 17 jurisdictions specific. Responsibility for the overall DHR process tends to sit within national/state government or specific aspects of the justice sector (e.g. the coroner's office or the Attorney General's office).

The most common approach for establishing DHRs is by legislation. 11 out of 17 jurisdictions examined for this briefing have specific legislation in place. England, Wales, Northern-Ireland, New Zealand and Portugal all have national legislation governing the process. In the USA, Canada and Australia the reviews are managed at state/territory level, with some states having established specific legislation while others have provided a mandate to either the Coroner's office or Ombudsman to carry out DHRs. The different statutory approaches are listed in Table 1.

For a description of the legislation for each jurisdiction, please see table 1 in Annex 1.

In a literature review conducted in 2015, Bugeja et al. (2015) showed that of the 25 jurisdictions^[10] they identified as implementing DHRs, 13 had a statute, code, or executive order to establish a DHR. Five jurisdictions had a statute, code or executive order which enabled the establishment of DHRs but did not require it. The remaining 7 jurisdictions had no statute, code or executive order.

Responsibility for the overall DHR process tends to sit within national/state government or specific aspects of the justice sector (e.g. the coroner's office or the Attorney General's office). In some cases a specific commission, board or council has been established that governs the review process.

3.2 Case selection

Key findings:

There are differences in the type of homicide cases covered by DHRs amongst jurisdictions. All jurisdictions include intimate partner homicide, but there is variation in the inclusion of homicide by family members, homicide-suicide cases, death of bystanders, near deaths and suicide.

There is also a difference in whether all cases that meet the criteria are reviewed, or only a selection. When a selection is made for in-depth case review, the review team does gather basic quantitative data (e.g. demographic data) on all cases to establish trends over time.

The literature highlights that it is important that the selection criteria are clear and the process of selecting cases transparent.

With or without specific legislation, next to a clear established aim of the DHR, the literature highlights the importance of jurisdictions clearly defining which cases are eligible for conducting a review. How case selection criteria are defined varies across the 17 jurisdictions considered in this briefing (see table 2 in Annex 1 for the criteria for each jurisdiction). Similar to Bugeja et al. (2015) research findings, the dominant focus of domestic homicide reviews in the 17 countries covered is on intimate partner homicides.

In 10 of the 17 jurisdictions reviewed, homicide by family members was also included (although some exclude child deaths). In seven jurisdictions there was a specific mention of including homicide-suicide cases (where the perpetrator commits suicide after committing murder or assault). Six jurisdictions included death of bystanders, for example when a police officer or professional intervened. Near deaths were mentioned in five jurisdictions. It should be noted that some of these numbers could be higher, as case selection may be more flexible in practice.

In Ontario, Canada, the Domestic Violence Death Review Committee covers domestic violence death, which are defined as "all homicides that involve the death of a person, and/or his or her child(ren) committed by the person's partner or ex-partner from an intimate relationship." However, at the discretion of the chair, the review team may also look at near-deaths.

New Zealand has a broader definition, and their Family Violence Death Review Committee looks at "family violence deaths", which are defined as: "the unnatural death of a person (adult or child) where the suspected offender(s) is a family or extended family member, caregiver, intimate partner, previous partner of the victim, or previous partner of the victim's current partner, and where the death was an episode of family violence and/or there is an identifiable history of family violence". Excluded from this definition are: non-family member bystanders or interveners, suicides, suicide-assisted deaths, and deaths from chronic illness associated with family violence.

In Delaware, USA, cases can cover both homicides and suicides resulting from domestic violence. The victim can be the domestic violence victim, perpetrator, or a by-stander as long as the death or near death (life-threatening injuries) was a result of domestic violence, meaning either intimate partner violence or violence between family members.

Some reviews have started to incorporate suicide (in a domestic abuse context), including five of the jurisdictions analysed for this briefing. However, as Jones et al. (2022) point out, establishing domestic abuse as causal in suicide can be difficult, as is obtaining a verdict of suicide. They argue that there is a need to further develop our understanding of the relationship between suicide and victims of domestic abuse (Jones et al. 2022).

Bugeja et al. (2015) mention that the broader the criteria (and the more deaths that are included in a review), the greater the likelihood that system gaps will be identified and addressed. Fairnbairn et al. (2017) add that any definition should strive to represent a full picture of domestic homicides, although it is inevitable that boundaries are drawn. On the other hand, broader inclusion criteria (e.g. family relationships instead of only intimate partner homicide) could lead to overlap with other types of reviews (see Section 4.4).

Regardless of the specific criteria, Fairnbairn et al. (2017) point out that the inclusion criteria of cases and justification for the selection process should be clear, and the case selection process should be transparent. They argue that while these criteria are often specified on paper, in practice it is not always clear how choices of inclusion and exclusion are made (Fairnbairn et al. 2017).

In many jurisdictions, due to legislated mandates, data availability, or resource availability, only a selection of all domestic homicides is considered for review. Moreover, while some jurisdictions review cases that are still being processed through the justice system, others only review 'cold cases'. When a selection is made for in-depth case review, the review team does gather basic quantitative data (e.g. demographic data) on all cases to establish trends over time. In a pilot that ran from 2015 to 2018 in Saskatchewan, Canada, for example, of the 48 deaths identified, 6 were reviewed in-depth. Other examples are New Zealand, where three to four cases are reviewed per year and Montana, USA, where two review committees each review two cases per year^[11]. Cases are usually selected based on their learning potential (Dale et al. 2017). This raises an ethical dilemma, why some deaths are considered and others not (Rowlands 2020a). Jones et al (2022 p. 4) draw attention to the importance of ensuring that the selection "is representative of different types of domestic homicide in diverse communities". They recommend that reviews should aim to include a sample that is both representative and embraces diversity (Jones et al. 2022).