The extent to which the partial defence of loss of self-control is sufficient for women who kill their abusive partners is questionable, and frequently debated. The following essay aims to highlight the strengths and weaknesses of this defence of murder. The defence prior to the current law was highly criticised and replaced for a number of reasons, the following will consider the rationale of the current law, and its effectiveness as a defence, with the focus on women who are subject to domestic abuse.
Loss of Control, is a partial defence to murder; meaning if successful, it would reduce a charge of murder to manslaughter, and reduce the mandatory sentence of life imprisonment to a discretionary life sentence. The defence was introduced under the Coroners and Justice Act 2009, and due to this enactment, the defence of provocation was removed in October 2010. Provocation was defined as ‘some act or series of acts, done by the dead man to the accused, which would cause in any reasonable man, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.’ (R v Duffy, 1949), and existed in law for centuries with strict guidelines (Ellis, 2003), prior to Section 3 Homicide Act 1957.
The previous law of provocation was on a ‘cumulative’ basis, defined with ‘a course of cruel or violent conduct by the deceased, often in a violent setting, lasting over a substantial period of time, which cumulates in the victim of that conduct…intentionally killing the tormentor.’ (Waisk, 1982; R v Ahluwalia, 1993). Provocation was often considered to operate with sexism, as it was rarely successful in the cases with women defendants, unlike men who regularly satisfied the defence (Herring, 2010). It has been argued that the law of provocation was created for men, by men with outdated beliefs (Holten & Shute, 2007). Statistics show that women often kill males whom they have been intimate with, whereas it is single men who significantly kill women (Mann, 1996), illustrating that women typically kill in relationships, potentially due to experiencing domestic violence, in which case leads to the requirement of and protection of a defence.
Section 54 Homicide Act introduced ‘Loss of Control,’ providing the legal definition as follows, ‘Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if: the D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control, the loss of self-control must of had a qualifying trigger, and a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.’
‘Qualifying trigger’ is defined under Section 55 Homicide Act 1957 to explain that D’s loss of self-control was ‘attributable to their fear of serious violence, or to things said or done, which constitute circumstances of grave character, or cause the D to have a justified sense of being wronged.’ (R v Hatter, 2013), though there are limitations to what is considered as a qualifying trigger, such as sexual infidelity (R v Clinton, 2012), or where the D incited the thing said or done themselves (R v Johnson, 1989). This element was introduced to deal with ‘battered woman cases.’ Section 54(1)(c) requires that ‘a person of the D’s sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of the D, might have reacted in the same or similar way,’ (DPP v Camplin, 1978; AG for Jersey v Holley, 2005).
The 2009 Act explanatory notes explain the aim of the Act was to construct a more ‘effective, transparent and responsive’ justice system for those who are victims to domestic violence, by providing clarity and fairness, implying that the law is removing its stubbornness with regards to battered women. The Law Commission’s and Parliament’s basis for the change in law identified the law failing to represent battered women. The new Act attempts to rebalance the law, ensuring it to be fair and just (Rozenburg, 2010).
The general public may see the amendments as an improvement from previously established precedents, whilst continuing along the same basis of the provocation defence, providing what appears to be an adjustment that coincides with societal changes. The underlying basis of loss of control contains the same actus reus, though on the other hand, the objectivity and subjectivity are shaped and specific, in terms of the defence being successful, and when it should ultimately fail within a court case.
Historically, women who killed their abusers were not prosecuted until the middle of the 20th Century, and those who were, their cases were later dismissed if ‘they looked like a lady’ at their trial (Jones, 1980). This could be argued to have a negative impact, as cases have shown women serving life sentences for murder, although the theory behind the legalities is that it allows battered women the opportunities to justify and provide reasoning for their actions, to look to the law for equal representation (Ahluwalia, 1997). Therefore, it is left in the hands of the law, to consider the options on what is best to reflect and balance the legal outcome and the background of the defendant.
Statistics have shown that 75% of England and Wales’ recorded assaults on women take place either in the victim’s or defendant’s home (HMSO, 1993), and Scotland between1993-1994 reported to provide support for 25,932 abused women. These statistics, amongst others, reflect feminist findings (Bandalli, 1991). Ultimately, murder tends to be a male dominated crime, though women rarely kill in comparison, they do fear male violence (Wells, 1990). The danger is that when women kill their fear may not be equal to the patterns of male behaviour, which has impacted the general concept of fear and violence (O’Donovan, 1991). Results from an Australia Study highlighted that both male and female spouse killings occurred under unhappiness or violence within the marriage, usually by the husband upon the wife; the major difference found within this study was that men killed their wives after separation for reasons of child custody or sexual infidelity. Contrastingly, women were nearly always led to do so by a higher degree of violence that had previously been reported (Castel, 1990).
One of the most criticised areas, are the differences in verdicts and sentencing for defendants of different genders, which is a known issue as law is perceived as a masculine discipline (Elliot & Quinn, 2010). When a man commits a criminal and violent act they disobey the boundaries set by Parliament, though it affirms their gender role, however, when it is a woman who commits the same act, such as domestic homicide, they are considered as ‘doubly-deviant’ as they are transgressing, both legally and within their gender role (Seal, 2010). In 2003, Morrissey highlighted the flaws in which feminist legal discourse, and discourses of the law, including the media represent female killers in a way that reiterates that female aggression is foreign in our culture.
When considering defences for a similar crime but the opposite gender it is prevalent there are key differences. The most common question in regard to domestic abuse is ‘why didn’t she leave?’ or ‘why did she go back?’ (Greig, 1979), highlighting the lack of feminism, and gender equality, though the defendant killed her husband following years of abuse, Lord Dunpark said, ‘there are various expedients open to a woman submitted to rough treatment by her husband but a license to kill was not one…The remedy of divorce or judicial separation is available to end this torment.’ The judge whom presided over R v Thornton, 1992 possessed a similar opinion, explaining that Thornton had ‘other alternatives available.’ Domestic homicide cases never expressed the question of ‘why didn’t he leave?’ supporting the exclamation that the law is drawn upon a masculine basis, as shown in the case of R v Singh, 1992; who maintained that his wife’s constant nagging caused him to kill her, which resulted in the judge summarising that Singh had ‘suffered through no fault of his own’ and a suspended sentence was awarded.
A similar attitude was present in McGrail, 1992; where even though the defendant kicked his wife to death, the judge awarded a suspended sentence on the basis that the victim ‘would have tried the patience of a saint.’ These cases, where a man has successfully used the defence and been successful, are not unusual. Battered Women Syndrome (BWS) has not been successful in the courtroom in normalising their behaviour as a reasonable response. In fact, where an abused woman has previously relied on BWS, it has undermined them, due to the stigma linked to their mental stability (R v Ahluwalia, 1992).
Since the introduction of the 2009 Act, BWS is no longer recognised under the loss of self-control defence, and therefore those women who plead loss of control, can only present themselves as battered, and not as suffering from BWS, and if successful will be labelled as victims, unlike those who plea BWS, whom will be labelled as mad. This perception of helplessness that is stigmatised with BWS has formed the ‘collective understanding that the battered women’s identity is predominantly victim (Noh, 2010).’ This label coincides with gender discourse, and for a woman to present herself as battered, but not suffering from BWS, leaves no option but for the woman to conform to gender discourse of a woman, and her femininity.
Therefore, a battered woman must present herself as a faithful one, who tries her upmost to keep her family together, and reacts pathologically to violence (Sanghvi & Nicolson, 1993). If a woman conforms to this behaviour they are seen as a ‘true’ domestic violence victim, both in the eyes of the legal system, and socially; suggesting that a battered woman must behave with appropriate femininity, as well as within the expected behaviour of a battered woman, and those who do not conform are seen as ‘undeserving viragos’ (Radford, 1993). So, the partial defence may be insufficient to protect abused women who kill their partners concerning those who are victims and suffer from BWS, and for those women who are battered, it may be insufficient to bring justice to them depending on the circumstances of their family life, and how it is evidenced in court.
Another major criticism is the removal of ‘sudden’ from the actus reus. As aforementioned it was established that the defendant must have experienced a loss of control to support the actus reus element of the defence, and within this requirement there was no mention of the loss having to be sudden, although that was regarded as reasonable as in the case of R v Duffy (1949), and believed to be an important obstacle to overcome in regard to victims of domestic violence (R v Ahluwalia, 1992). Although the judgement of R v Duffy was considered a ‘good law,’ in R v Ahluwalia, under the new defence as there is no apparent loss of control, meaning the verdict and decision would remain the same, making the defence of loss of control, insufficient for those women who kill their abusive partners.
The Homicide Act 1957 did not provide specific details as to what loss of control refers to, leaving cases open to subjectivity as to whether the defence should be accepted by the judge, and later supported by the jury in a trial, however the introduction of Section 3 of the Coroners and Justice Act 2009 removed the need for ‘sudden’ to be satisfied, which was not criticised, and provided a comprehensive legislation which explained that for the defence to be successful, there must be evidence that two or more ‘qualifying triggers’ were present.
The loss of self-control must either be recognised as a fear of serious violence, under Section 55 (3), or the circumstances were of grave character, causing the defendant to have felt a justified sense of being wronged, established by Section 55 (4)(a) and (b). This amendment is potentially damaging for those who are domestic violence victims, as this defence is a collective of the defendant’s fear, and a defence where it is likely the defendant has acted through emotion such as anger.
Loss of self-control is mostly associated to someone who ‘just snaps;’ and is commonly witnessed within the courtroom, making it harder to convey that there are other emotions, such as those linked to being a victim of domestic violence, and to provide evidence to support the defendant’s plea, yet the amendment to the law, and its current elements that need to be satisfied, recognise that there are other emotions, which can result in an individual’s loss of self-control, potentially progressing loss of control as a successful defence for abused women who kill their abusive partners.
Another area that should be considered is whether the ‘fear of serious violence’ element truly represents the experiences of those battered women who kill due to being victims. After the Law Commission’s 2006 recommendations, Parliament believed that the loss of control defence should ultimately be in favour of two scenarios: first, ‘where a victim of sustained abuse kills their abuser in order to thwart an attack which is anticipated but not immediately imminent,’ and the second scenario was to cover, ‘where someone overreacts to what they perceive as an imminent threat.’ Supporting that a non-imminent but anticipated attack would satisfy this required element, meaning battered women can use this amendment on a broader spectrum, with the removal of ‘sudden’, as it could be argued that a battered woman is more likely to anticipate a violent attack from their partner. This approach is strongly supported as it shows that other emotions, for example, human frailty. Whilst loss of control is naturally connected to anger; fear of violence alone is not a sufficient qualifying trigger. The fear itself has to have caused the defendants loss of self-control. Clarkson and Keeting highlight that in the vast majority of cases women act rationally but use more force than necessary when experiencing such a commotion, unlike the case of Ahluwalia who had previously lost control; whereas Jonathan Herring has argued that the actions of the defendant, before the killing occurred, may reveal a calm, collected and deliberate manner rather than in the manner that you would expect from an individual who simply lost their self-control, allowing the possibility of the prosecution to argue the defendant was asking with revenge, something that is excluded within the Coroners and Justice Act 2009.
This element of the Loss of Control defence is insufficient, even though it was introduced in attempt to aid ‘battered women,’ as loss of self-control based on fear may manifest differently in different circumstances (R v Ahluwalia; R v Thornton), and therefore the emotions and behaviours required to satisfy this element would be difficult to identify. It could be argued that the Law Commission were correct in stating this element was inappropriate as it does not faithfully represent the reaction of women found in a domestically violent situation, and consequently may not be capable of protecting those who need the defence, and would be unable to bring justice to battered women who kill their abusers.
Another potential criticism of the new defence for the application to domestic violence cases is the objective element of the ‘reasonable man’ test. This test only allows the defence where even a reasonable man, in those circumstances, of the same age and sex, would have reacted, and lost self-control in the same way as the defendant. Essentially, the accused reactions are compared to those of a ‘normal’ individual. The Homicide Act 1957 outlines that ‘things done or said’ are to be considered in how those actions would impact the ‘reasonable man.’ A major criticism with this element of the law is its vagueness, which has consequently led to Judges finding difficulty in explaining this requirement to the jury (DPP v Camplin, 1978).
However, the Coroners and Justice Act 2009 attempts to resolve this previous legislative flaw by providing an articulate explanation as to what characteristics qualify a person to be reasonable, through Section 54(1)(c); outlining that a reasonable man refers to a person of the defendant’s sex and age, who possesses a normal degree of tolerance, and self-restraint, who would in the defendant circumstances respond and act in the same way as the defendant. Subsection 3 of Section 54, also allows the jury to consider all circumstances. The change in language from the defendants ‘characteristics’ to ‘circumstances’ should be considered as a positive one with regards to battered women who kill, as it removes the connotation, and stigma that the defendant has a mental illness (R v Ahluwalia,1992), this therefore favours battered women, as it suggests to the jury that they can consider prior circumstances such as abuse, and consider it as an external factor, not an internal one, for example it could prevent juries interpreting it as a character flaw or disorder.
To conclude, the enactment of the Coroners and Justice Act 2009, with its amendments improved the legislation, from provocation to loss of self-control, to aid those women who are subject to domestic violence, despite the intentions of the reforms, real-life cases have highlighted that when a British battered woman is charged, and brought to court on a murder charge, she is somewhat of an alien-nature, treated with a lack of empathy in regards to the violence she has experienced at the hands of her partner.
As the above information outlines, it is difficult to determine whether or not loss of control has been a complete success for battered women, but for those who have killed the implemented changes are positive. With sexual infidelity being excluded, along with suddenness, and the introduction of ‘fear of violence,’ it removes the burdensome denotation that came with the defence of provocation. ‘Battered women’ are different from men, which needed to be recognised within the law, which has continuously been male orientated, consequently allowing the law to provide for both genders. Historically, it is evidenced that the attitudes towards provocation disregarded women, the number of cases that failed was upsetting, though the removal of ‘sudden’ can be considered a triumph within the law, and these changes have shifted the gender bias to neutral, the new Act may make it difficult for battered women to benefit from the defence. For example, this problem may be caused by whether there is a time lapse between the abuse and the killing, or the force used, they may be at a disadvantage nor considered as justified actions, negating the intentions of the ‘fear’ trigger.
On the basis of the wording, and aforementioned details regarding the terminology and non-allowance of BWS for the loss of control defence, it could be argued that abused women are not recipients of justice when they kill their abusive partners, though supporting case law is yet to be developed. Unfortunately using the cliché, only time will tell as to whether the loss of control defence is sufficient to support abused women who kill their abusive partners.