Critical analysis of three main defences of voluntary manslaughter for women defendants who kill their partners.

The Homicide Act 1957 does not fully define provocation.  Devlin J. defined provocation in Duffy39 as:

         “…some act, or series of acts, done by the dead man to the accused which would  cause in any reasonable person 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…”40

‘The Court of Appeal in Thornton41, Ahluwalia and Richens42 rejected the argument that s 3 of the 1957 Act, provided a self-contained definition of provocation. In Ahluwalia the court stated that ‘s 3 did not provide a general or fresh definition of provocation, which remains a common law defence.  Moreover the partial definition in Duffy remains good law.43

The defence involves consideration of three elements. Firstly, ‘was the accused provoked thereby losing self-control?’, secondly, ‘would a reasonable man have lost his self-control?’, and finally, ‘would a reasonable man have done as the accused did?’

The first element is subjective and deals with suddenness.  It is satisfied if any evidence of provocation can be determined, the trial judge leaves the question to the jury.  The subjective element can be viewed in another way, by arguing for jury directions on the ‘cooling off’ aspect.  This will assist battered defendants avoiding life sentences.  Furthermore, it should encourage prosecutors to accept manslaughter pleas, thus sparing battered defendants of murder trials.44  Considering that, at the time of the killing there was a loss of self-control.45

English law views the element of ‘suddenness’ restrictively.  Whereas, Australian law has gives a liberal interpretation to ‘suddenness’, they recognise the notion of cumulative provocation.46  Their approach to ‘suddenness’ is more attuned to the human reality of violent and protracted inter-personal relationships and to slow-burning rages’.47

In English law, slow burning appears to be overlooked by defence lawyers and judges.48  Slow burn suffering on battered women, can be seen through, fear, despair, helplessness and anger.  This eventually erupts into the killing of their batterer, mainly while he sleeps49 as in Wyatt50, the wife had shot her husband dead whilst he slept and was convicted of manslaughter.51

 

The second condition, “would a reasonable man have lost his self control?” This element is judged objectively, ‘being a battered woman is a relevant characteristic which could be attributed to the reasonable man’.52  I will show further in this work that things said or things done to provoke the reasonable man is based on the male gender.53

In Camplin, ‘The House of Lords laid down that juries should regard the reasonable person as;

“…having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics…”54

In contrast to this statement, how can a person who has been battered over a long period, possibly react as an ordinary person would?  Repeated violence, towards a woman can have severe effects, she may become immobilised, passive and unable to act to improve her situation, instead a depression that sets in, immobilising her.55

Lord Simon said in Camplin; “…In any case it hardly makes sense to say that an impotent man must be notionally endowed with virility before he ranks within the law of provocation as a reasonable man, yet that a normal woman must be notionally stripped of her femininity before she qualifies as a reasonable woman.”56

However this statement on stripping a woman may be looked upon as being sexist.57 Such a characteristic of being an impotent man have the effect of not classing a man to be reasonable, as the hypothetical reasonable man would not be an impotent man. Bedder v DPP58 demonstrates this point.  The question of reasonableness is left to the jury.

Juries may set different standards for what the reasonable man and woman are expected to tolerate.  In R v Davies59 the husband shot his wife dead, his plea for provocation was put to the jury who convicted him of homicide.  The case highlights that the wife’s behaviour was provocative rather than the husband’s as ruthless. The decision reveal a clear inconsistency with Duffy.60

As commented in State v Kelly61

“… when jurors’ logic, drawn from their own experience, may lead to a wholly incorrect conclusion … where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather then common knowledge.”

The court adduced for the first time in Thornton (No. 2)62, that battered woman syndrome could be a relevant characteristic for the jury’s consideration in a defence of provocation.63  Furthermore in Newell64, it was accepted, mental and personality characteristics could be considered.65  Obssessiveness and eccentricity were relevant characteristics in Dryden66.  Importance, also lies with, ‘social standards at the time, particular characteristics or circumstances have relevance when considering if the actions or words are provocative.’67

A fundamental rule for the defence arises from cumulative provocation, if a defendant reacts violently to a trivial act, provocation can succeed on a ‘final straw’ basis.  This was the case R v Humphreys68 where the murder conviction was quashed as the trial judge failed to take into account numerous examples of provocative behaviour over the course of the accused’s and the victim's relationship.

Under s 23(2) of The Crimes (Homicide) Amendment Act 1982, it states that the provocative conduct of the batterer is relevant whether such conduct, ‘occurred immediately before the act or omission causing death or at any previous time’.69

In the case of Donna Tinker, her defence of provocation was not accepted at trial, even though she had suffered an hour before, stabbing, a black eye, broken tooth and bruised jaw.  The judge conviction was quashed the ground, that a direction by the trial judge to the jury on the question of lies was ‘incomplete’.70

‘In the case of Oatridge71 the defence was threefold. First, the offender lacked the necessary intent, secondly, she acted in self-defence; and finally, she acted under provocation. The conviction was quashed on appeal and replaced with manslaughter provocation.72 Provocation was accepted in Elizabeth Line73, she stabbed the victim seventeen times in self-defence.

Female homicide defendants may be exceptional because they are rare, but they may not be exceptional women, they may be ordinary women pushed to extreme. Yet the law has not incorporated these ‘ordinary’ women into its standards for assessing the degree of criminality in homicide, as it has done with ‘ordinary’ men.74

 It has been reported that, ‘the main sources of conflict were possessiveness, sexual jealousy, expectations about domestic work, and money and that their men were most likely to become physically violent ‘at the point when the woman could be perceived to be questioning his authority or challenging the legitimacy of his behaviour.’75

Even if the woman was reasonable, how much violent abuse should she take, it is worth stating that, battered women have adapted to be attentive to signs of escalating violence and to rapidly change their behaviour in order to avoid violent partners bullying them further.76

 

The Australian law has modified the test for the reasonable man to embrace the concept of the ordinary man.  This allows for the battered woman’s response to be assessed without the stricture of the reasonable man test.77  If this were adopted to English law in would be beneficial in that it would restrict women being victimised by the male gendered reasonable man test.

The next step would be to persuade the court is that an outwardly calm killing by a battered woman is legally and morally equivalent to the paradigmatic male ‘snapping’.78  In Ibrams79, the battered defendant waited five days from the last act of provocation and that of the killing and because there was no loss of self-control, the plea for provocation was rejected.

In the majority of cases, the sentence imposed is either two or three years’ probation, or a suspended sentence of imprisonment.80

Diminished Responsibility

Diminished responsibility is a partial defence.  It is only a defence to murder, the creation of this defence is entirely of statute.  This defence reduces murder to manslaughter where a person may be sentenced to life imprisonment.

The defendant is required to prove their defence on a balance of probabilities.  If successful the defendant will be guilty of manslaughter rather than murder.  Diminished responsibility is defined under section 2 (1) of the Homicide Act 1957,  which states:

‘Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.’

If battered women’s syndrome arises from battery, the cause may fall within s 2(1) of the 1957 Act.  The Court of Appeal held in Hobson81 that the syndrome could give rise to the defence of diminished responsibility.  The syndrome would have to come from ‘inherent causes’ or ‘injury’.82

Section 2(2) of the 1957 Act, puts the burden of proof is on the defence, on the balance of probabilities.  Three elements required for this defence are. First, the accused must be suffering from abnormality of mind. Secondly, the abnormality must arise from ‘arrested or retarded development disease or injury’. Finally, the abnormality of mind must have substantially impaired the accused’s mental responsibility.

Battered women can be understood as temporarily abnormal under battered women syndrome.83  They, must satisfy a much higher level of abnormality of mind.84  However, if abnormality is over emphasised, she may find that the outcome of the trial will be incarceration of a mental institution85, under s 37 of the Mental Health Act 1983, rather than probation.  Furthermore, the focus does not lie with the man battering her, but instead with the woman’s abnormal mind.86

English laws experiences of abused women who kill are largely through the defence of diminished responsibility.87  Alternatively when men plead diminished responsibility, he is said to be suffering from jealousy possessiveness, inability to let his wife go, revenge and bitterness.  These emotions contribute towards his abnormality of mind characterised by ‘reactive depression’.88  In many cases, however, it seems that the killings are clear cases of revenge, men exercise their right to the body of the woman.89  

Pleas of diminished responsibility have been successful in cases of cumulative violence. ‘Instead of proposing herself as a legal subject responsible for her actions, she denies this and proposes abnormality of mind.         This prevents attention being given to cumulative violence and appropriate responses.’89 In Robinson90 after being hospitalised several times, she attacked her husband with a hammer and strangled him. As a result she was placed on probation for two years.91

The conflict of expert opinion on, substantial impairment was significant in Thornton where whilst there was agreement as to the psychiatric evidence, Dr Bullard and Prof. Brandon believed her responsibility was substantially impaired. Dr Brockleman did not. Where the medical evidence is unequivocal and uncontradicted, the trial judge should direct the jury to accept a plea of diminished responsibility.’92

To accept evidence of diminished responsibility shows that battered women are likely to induce, ‘a more favourable judicial response for a more medical-type excuses rather than the partial justification of provocation.’93

In Ahluwali the appeal was for diminished responsibility with new evidence based upon psychiatric reports. The murder conviction was quashed and substituted with diminished responsibility. Diminished responsibility was favoured over provocation and will most probably have the effect on future defences of more battered women who kill.94

Current law falls short of the European Convention of Human Rights. In two ways, first, where the accused is charged with murder, the court does not have the opportunity to determine whether the mental incapacity is of such a kind as to warrant mandatory commitment.  Secondly, the law must not be too far out of line with medical opinion, but as shown in my work, the decision for this defence rests with the jury and not the psychiatrists.95

Anne Scully, shows how expert evidence of battered wife syndrome in homicide cases tends to conform to established medical and legal discourses, which themselves have served the interests of a patriarchal social order.96 She continues with the view that, ‘such women should not be view categorically as mentally abnormal, but sometimes as having acted reasonably.’97

Jane Scotland98 received a non custodial sentence for manslaughter when she bludgeoned her husband to death after twenty-two years of ‘mental torture’, physical ill-treatment and the sexual abuse of their daughter.’99

Where women are convicted of diminished responsibility in the domestic context their cases usually reveal considerable provocation but their reaction to that provocation fails the under the males standard of reaction.100

The modern rationalisation is that diminished responsibility serves to mitigate the sole remaining fixed imprisonment penalty in English law by allowing the court to be flexible in sentencing.101 Some 30 per cent of those successful on this defence receive imprisonment.102

Conclusion

As I have shown on several occasions, the current law is biased and favours males standards, the only was in which women can succeed is to act more like their male counterparts.  Otherwise, the woman must put herself to law’s image of a woman, being faithful, devoted mother and strives to keep the family together and who reacts timidly to violence. If she is unable to do so, she may possibly face life imprisonment for being a victim or a punch bag to her partner

 

A way to prevent battered women killing, is to provide more assistance towards them, one way could be an escape from the violence totally. Sara Thornton’s, showed that she received little assistance from the police or other agencies despite having drawn attention to the violence she suffered. It seemed either that no one wanted to know, the police were involved, but even a solicitor advised her that she had no remedy in law.103 How can society even attempt to tackle the problem, which arises from battered women who kill, when Governments are not prepared to change the laws which govern us or take too long for laws to be effective in day to day society.  

Wasik, had suggested, ‘the best avenue for reform might be the abandonment or relaxation of the general rule of immediate retaliation to provocation.’104 Harriet Harman, the solicitor general, went further to state that the law should be reformed, in order so killers could no longer blame their victims, “The Law Commission signals that provocation has had its day.”105  

Further changes to shift the balance of law, the defence of provocation, used by men who kill their wives for having affairs or wanting divorce could be scrapped.106

At present, The Law Commission is looking for change. A new partial defence of excessive force use of force in self-defence, or even a specifically tailored partial defence for battered women107 or even ‘a new approach to provocation would be of assistance to some battered women who kill.’108

The proposed defence is a partial defence, reducing a charge of murder to manslaughter. It reflects the experiences of anyone subjected to repeated assaults or sexual abuse and acknowledges their responses as rational within an intolerable situation.

The proposed self - preservation defence:

1. It shall be a defence to a charge of murder, reducing the charge to manslaughter, if:

1. the deceased person had subjected the defendant or another person, with whom the defendant was at the time of the deceased person's death in a familial relationship, to continuing sexual or physical violence and
2. the deceased person was at the time of their death or had at any time been in a familial or intimate relationship with the defendant or with

c.    the person as described in (a) above andthe defendant believed that,   but for their action, the deceased person would repeat the violence as stated above, so that their life or that of the person as described in (a) above was in danger.109                                  

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