Exploring the After-MAF: The Past, Present and Future Of 'Male Assaults Female'

• Pages: 121–164
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Anna Smith
• Subject Matter: Derecho Público y Administrativo

EXPLORING THE AFTER-MAF:

THE PAST, PRESENT AND FUTURE OF

‘MALE ASSAULTS FEMALE’



Abstract

Violence again st women is a widespread i ssue both domestically and across the globe.

is paper approaches gend ered violence fro m a legal per spective by inte rrogating New

Zealand’s unique crim inal provision of “male assault s fema le” (MAF). Prompted by

the Law Commi ssion Repo rt from 2009 that recomme nded repeali ng MAF, this p aper

rst investigates the histori cal backgro und of MAF to establish its or iginal pur pose of

preventing domestic violence. e interrogation then moves to conrm whether the

original purpos e of MAF has changed, consideri ng the in troduction of new family violence

legislation and the use of MAF by the police. It concludes there may be a new purpose for

MAF – pu blicly condemning vi olence against women . With the origin al purpose of MAF

arguably replaced by new le gislation, this paper then explore s violence against wo men

in New Zealand and t he current re levance of M AF. It asser ts MAF re mains relevant as

a mech anism to publicly con demn gendered violence. e nal part of this pa per asks

whether MA F should be repealed , exploring argument s from the Law Comm ission, along

with criminalisation and punishment theories. e arguments in favour of retaining

MAF are shown to o utweigh the arguments for repe al.

I. Introduction

Violence agai nst women, specica lly by men, is ingra ined as inherently “b ad” in

Western societ y. The you ng people in my li fe aged betwee n 10 and 17 demonstr ate

this to me w ith statement s such as “I can’t hit her, she’s a girl” a nd “I know violence

is bad any way, but him hitti ng her crossed the l ine”. While it is genera lly understo od

that violence a gainst women is u nacceptable, it is st ill a widesprea d and normalis ed

occurrence.1 From a sociolog ical perspecti ve, violence again st women is normalis ed

1 Minis try for Women “Violenc e against wom en” <www.women.gov t.nz>.

121

* A dissertat ion submit ted in f ullment of the deg ree of Bac helor of Laws (with Honou rs) at the

Universit y of Canterbu ry, July 2024.

122 [Vol 32, 2025]

due to the power men have over women w ithin a patria rchal society.2 New Zea land

is no exception to t his. In appro aching t he issue of gendered v iolence from a lega l

perspect ive, this pap er aims t o investig ate the pur pose of the cri mina lisation of

violence perpetr ated by men aga inst women, specical ly s 194( b) of the Crime s

Act 1961 (Crimes Act), “Assault by a male on a female”, its relevance i n light of that

purpose, a nd whether this provision s hould be repea led. Throug hout this pap er, s

194(b) and it s historica l provisions wil l be referred to as MA F.

Part I of t his disser tation out lines the r ationale be hind resea rching M AF, and

sets out the res earch questions tha t will be addressed. Th is section introduces t he

Te Aka Matua o te Ture | Law Commission report that recommends repeal of MAF,

and provides t he rationale for a n investigat ion of MAF’s pur pose. Part I t hen outlines

the MAF pr ovision as it is today.

The histor ical underpin ning of MAF w ill be discusse d in Part II to a scertain t he

provision’s orig inal purpo se. Beginn ing with t he common law principle of cover ture

to provide back ground cont ext, th is section fol lows MAF fr om its earl iest form in

the Unit ed Kingdom i n 1853, throu gh to its cu rrent form in New Zealand law under

the Crime s Act 1961. Par t II will establ ish that the origi nal purp ose of MAF wa s to

limit domes tic violence.

Part II I outlines the new f amily violence le gislation tha t may bring the releva nce

of MAF int o question. This sect ion then investigat es when, and how often, men a re

prosecuted with MAF specica lly, th rough a n assess ment of Police a nd Mi nistry

of Jus tice dat a. Case law will also be considered to c onrm w hether the origi nal

purpose of M AF has ch anged, a long with t he impact the ne w famil y violence

legislat ion has had on prose cutions of MA F. Pa rt III conclud es that MA F was used

predomina ntly in the dome stic contex t conr ming it s origi nal pu rpose, th at this

purpose is now b eing addressed by t he new family v iolence legislat ion, and suggest s

MAF may h ave a potential new pur pose of publicly condemni ng gendered violence.

The relevance of M AF is consider ed in Par t IV. This sect ion outlines New Z ealand’s

internat ional obl igations related to addres sing v iolence aga inst women (VAW).3 It

will t hen discuss VAW in New Zealand, i ncluding data on the gender de mographics

of violent crime a nd victi misation . It will b e argued t hat as VAW is an issue bot h

globall y and domestic ally, MAF r emains relevant and m ay serve a revised purpo se

of publicly condemn ing VAW.

2 Carrie Yodanis “Gen der Inequalit y, Violence Agains t Women, and Fear: A Cross-Nationa l Test of

the Feminist Theory of Violence Against Women” 2004 19(6) J Interpers Violence 655 at 657; and

Gwen Hunn icutt “Var ieties of pat riarc hy and violenc e again st women: Resu rrect ing ‘Patr iarchy ’

as a theoret ical tool” (20 09) 15 VAW 553 at 560.

3 As VAW is on a spectrum , discussion w ill be lim ited to violenc e in terms of ass ault.

Exploring Th e After-MAF: The Past, Prese nt and Future of ‘Male Assa ults Female’

123

Final ly, the question of whe ther MAF s hould be repea led will be a ddressed in

Part V. Firs tly, this sec tion explores a rgument s based on the La w Commission’s

report on vict im-specic oences.4 Part V w ill then i nvestig ate arg uments base d

on theories of cr imina lisation a nd punis hment to est ablish whet her MAF shou ld

be repealed . When considering M AF has a revised pu rpose of condemnin g VAW, the

argu ments in favour of reta ining MA F will be show n to outweigh the a rguments for

repeal.

A. Rationale

In 200 9, the Te Aka Matua o te T ure | Law Commission published it s Review of

Part 8 of the Crime s Act 1961 (the LCR).

5 Though ini tiall y requested by t he Labour

Government in 2 007, the revie w was expedi ted at the reque st of the new Nationa l

Government in 2 008.6 This wa s because developi ng an appropr iate respon se to

violence aga inst chi ldren was a pr iority under t he new Governmen t, and some

provisions under pt 8 of the Crime s Act 19 61 related to oences against children .7

This repor t recommended repealin g MAF, along with other se ctions of the Crimes

Act 1961 r egardi ng victi m-speci c assault oe nces.8 This rec ommendation of repeal

was on the condi tion that t he penalt y for common assau lt be increase d.9 The LCR

also suggested MAF as i t then stood was “not full ling a useful funct ion”, as the

provision wa s essential ly the sam e as common assa ult, aside f rom the genders of

the people involved .10 In response, the then Mi nister of Justice Si mon Power, stated

due to the Gover nment’s focus on fam ily violence , there were no plan s to remove

this oence at that t ime.11 The report also c onsidered that althoug h MAF may have

“been desig ned, or be oper ating, as a proxy for an oence of domestic assault”, the

gendered nat ure of the oence did not captur e all forms of family v iolence.12 Other

aspects r elevant to t he recommendat ion for repeal of MA F were also con sidered

in the repor t, includi ng the cha rge as a propens ity indic ator for fami ly violence

oending.13 These r easons provide a s tart ing point for the i nvestigat ion of the hist ory

of MAF, and in wh at circumsta nces men are being pros ecuted under the prov ision.

4 Law Com mission Review of Part 8 of th e Crime Act 1961: Crimes Against the Person (NZLC R1 11,

2009).

5 Law Commiss ion, above n 4.

6 At iv.

7 At iv.

8 At 35.

9 At 35.

10 At 6.

11 “Law Commiss ion recommends r epealing M ale Assau lts Female oence” (27 Januar y 2011)

Violence Informat ion Aotearoa <vine.or g.nz>.

12 Law Com mission, above n 4 , at 35.

13 A t 36.