Is law justice to women?
Homicide is the general term used to cover the different changes involved when one human being kills another. Murder is one type of homicide and is distinguishable from the others in that it is necessary to prove the intention to kill or seriously injure. A killing with such intention can sometimes be justified. For instance those who kill in self defence using reasonable force will be acquitted.
Intentional killing may also be excusable if it was a response to provocation. This will reduce a murder charge to voluntary manslaughter thus avoiding a life sentence.
In this essay I will examine why women’s physical and emotional characteristics may prevent them satisfying the test for provocation and why “mans…laughter” is so aptly named.
In order to prove provocation a provocative conduct, loss of control and that a reasonable person would have lost control as the defendant did must be proved. The partial defence of the provocation was originally found in common law. Research by Dr Horder (1992) has shown that although the doctrine has much earlier roots it emerged in its recognisably modern form in the late 17th and early 18th centuries. It comes from a world of Restoration gallantry where a gentleman had to act in accordance with a code of honour which required insult to be personally avenged by instant angry retaliation. Therefore the defence of provocation was created so that a man of honour was given an allowance in case if he overreacts and kill when a lesser retaliation would have been appropriate. It leads to liability being reduced to manslaughter and avoidance of death penalty. From this it might be seen that the provocation was created especially for men to avoid conviction of murder because of their temper. As the society changed the defence of provocation had also altered to reflect the culture and values of modern society-the loss of control has to be now proved. It has been criticised for being unfair to women. It may discriminate them both when they are the victim and when they are defendant. By looking at the risk of female victim discrimination- every year 120 women and 30 men are killed by a current or former partner. By looking at the female defendants discrimination we can see that men seem to get away more often then women by using provocation as a defence. That clearly shows how unfair is the law on provocation to women. On this ground a number of campaigns have been created in support of battered women who kill their partners which started operating even more strongly after cases of Thornton and Ahluwalia. In the case of Sara Thornton 1992 the accused was in an abusive relationship with her husband and was provoked on the day of the killing. She then went into the kitchen, sharpened a knife and returned to stab him. In Ahluwalia the accused’s husband had abused her for over 10 years. After the most recent provocation she waited until he was asleep, put petrol over him and set him alight. Both Thornton and Ahluwalia were convicted of murder of their husbands who had subjected them to extreme violence-and both appeared to have the evidence of cooling time and planning. At their original trial the prosecution claimed that there was no sudden and temporary loss of control because it was thought that their actions were deliberate. The critics and campaigners said that the requirement for “temporary and sudden loss of control” was discriminative to women. Men usually react with a immediate violence hence they can nearly always pass the subjective test of loss of control. Women on the other hand do not usually react immediately. Perhaps because the may need a weapon to fight back as they are not as strong as men. It can also be that women’s anger is more slow burning. As a result the courts simply interpret it as cooling time or planning. This was supported by an American research done by a feminist and psychologist Leonore Walker who developed the theory of the “Battered Women Syndrome”. It is based on two fundamental premises: a cycle model of violence and “learned helplessness”. This model involves repetitive cyclical phases: tension building where the assault occurs and the contrite reaction. The repetition of this cycle undermines woman’s confident and leads to creation of “learned helplessness” where woman get used to the thought of being trapped in this kind of situation.
