'In every field of law and legal practice, the law itself is gendered. That is to say, that the law-whether developed through the courts, under common law, or enacted in legislative provisions, reflects the gender of those who have created it: men.'

operation of provocation and diminished responsibility will mitigate the mandatory

life sentence attached to a conviction of murder, allowing a verdict of manslaughter

with the related discretionary sentence.24 Self defence is a more complete defence,

negating the unlawful element of the killing. However as the reading will show, there

are many problems attached to the operation of self-defence in the case of victims of

domestic abuse who kill.

Can the law serve the battered women who kills without pathologising her as a victim?

The criminal law defences available expose the historically masculine construction of

law, developed in accordance with male sensibilities reducing and confusing the

experiences and motivations of women.25 Where a battered women kills her abusive

partner, commonly the verdict returned is either a conviction for his murder or

manslaughter on grounds of diminished responsibility.26  This pattern reveals the

operation of a masculine system which discharges full blame to the women or

presumes a mental defect, vitiating responsibility: each construction ignorant of her

personal situation.27

Domestic violence against women is for some an everyday occurence: one in every

four women live with it compared to one in every six men.28 In 1991 41% of all

female victims of homicide were killed by their partners.29  This picture underlines the

importance of criminal law defences.

Provocation.

Provocation, a two-tier defence encapsulated in s3 of the Homicide Act 1957 revolves

.

around the judicious and logical ‘man of the law’30 who is reduced to physical

violence:

“…so subject to passion as to make him or her for the moment not the master of his mind.”31

The two pillars which support the defence of provocation involve the subjective and

objective requirements. A female defendant pleading provocation is therefore required

to establish that the abusive treatment received caused her to lose her self-control. It

will then be left to the jury to distinguish whether her reaction could also be one of  

‘the reasonable man’.32 Although in R v Camplin33 the reasonable man was held to

include personal characteristics of the accused such as age and gender, this is not

directly transferable to the case of the battered women though may have made further

reform possible. Marie Fox reveals that the female problem is four-fold.34

Traditionally judicial insight into female behaviour and reactions is muted and hazy.

This is compounded in the first misconception of the feminine position. The cases of

Sara Thornton and Kiranjit Ahluwalia did not satisfy the requirement of ‘suddenness’

for the purpose of provocation.35 Therefore the law condemned them as cold-blooded

vengeful murderers. In reality, their responses to the cumulative violence were

indicative of the different degrees of physical strength between their sleeping partners

and themselves.36  Duffy was quoted with approval in Thornton, the trial judge

upholding the standard that:

“…most acts of provocation are cases of sudden quarrels, sudden blows inflicted with an instrument already in hand…where there has been no time for reflection…Fists might be answered with fists, but not with a deadly weapon.”37

How can this extend to the position of the battered wife? It takes no account of the

physical differences between men and women and fails to observe the reality that any

unsuccessful retaliation by the victim may inevitably bring harsher repercussions. The

judiciary has forsaken these women by confining them within the masculine

sensibilities of the reasonable man. I contend that this pattern shall continue despite

the attempt in Camplin to include a ‘reasonable woman’ test. As Hilary Allen

observes:

“the now commonplace use of the term ‘reasonable man’ keeps alive the ‘illusion’ of a universal and unitary subject of law…on the contrary it is variable, differentiated and very firmly gendered”38

Secondly, the masculine definition of what legally constitutes provocation intimately

lends itself to the male psyche in that the periphery of violence is more commonly

transgressed by men than women.39 Men will typically be provoked to respond to

issues such as his partner’s infidelity while women may. be provoked by the constant

threat of violence to herself or her children. For almost 300 years the judiciary saw

provocation to violence as contrary to a woman’s character. The present availability

of such a defence does little to improve the female position: merely attributing men’s

weaknesses as a threshold for female provocation is an injustice to the female

defendant.40 The law is more covert in its bigotry as the standard is disguised as one of

gender neutrality yet greater importance is attached to a man’s sexual security than to

a woman’s personal safety. A clear adjustment of the criminal law defences is

necessary to achieve justice for the battered woman. The possibility of establishing

gender-specific defences forms a later part of this discussion.

The third area of concern is the judicial position regarding a woman’s emotional

character in situations of abuse.41 A man is justified in his anger when provoked while

women cannot easily attribute their violent responses to the fear connected to

cumulative violence. The existence of feminine anger, whether through fear or

otherwise, is an emotion out of sync with judicial conceptions of femininity. Anger

manifesting in violence by a female perpetrator goes against the grain of both the

criminal law and the essence of the ‘feminine’.42 Masculine provocation includes a

perspective on the challenging conduct of the victim. In the case R v Wells43 Bisla

Rajinder Singh’s plea of guilty to manslaughter through provocation was upheld by

the Court of Appeal.44 Following a history of violent abuse displaying little regard for

his wife’s right to live, Susan had ‘provoked’ him through “cutting hurtful phrases” 

concerning the real father of his daughter. Singh shot her twice “through no fault of

his own”45as the provocation was of sufficient gravity to justify his actions. It is

.

therefore difficult to explain why a female victim of domestic abuse who kills is

denied full legal representation of her accrued suffering: a factor often solely to blame

.

for her loss of self control..

Finally, Marie Fox points to the social conditioning of women against using violence

and the judicial failure to appreciate this. While male violence in the face of

provocation is seen as inherent in his nature, a woman is undermined by her failure to

realise:

“…other alternatives available, like walking out or going upstairs”47

Self Defence.

A clear convenience of this defence is that it defies any unlawful element in the

killing. Although acquittals based on self defence are rare it accounts for the main

position pleaded by female victims of domestic abuse who kill in North America.48

Britain procrastinates over the use of this defence in such circumstances. Similar to

provocation, Holly Maguigan was able to collate common feminist perspectives on

self defence in a murder trial and conclude four main underlying themes.49 First, the

objective ‘reasonable man’ test falls foul of the female defendant for the same male

bias reasons as provocation. Secondly the recurring idea that a delay in any reaction

prevents reliance on either provocation or self-defence is found in the requirement

that the danger facing a self-defence claimant must be immediate. Again, this legal

masculine perspective ignores the cumulative effect of domestic abuse and fails to

accommodate the disparity between the male and female physical forms.

Thirdly, self defence is premised on a ‘one-off’50 physical confrontation between

assailants of moderately equal physical strength. This is reminiscent of the judicial

failure to accord recognition to the social attitude of women, traditionally against

violence found in the feminist critiques of provocation. Ultimately self defence

incorporates a ‘duty to retreat’:51 a requirement often impossible in real situations of

danger in the family home. This extends from the judicial approval accorded to the

one-off brawl between men where the force used must proportionately reflect the

threat posed. A duty to retreat is indicative of ‘male valour’52: a commendable

decision of the reasoned and sober man to step away from a confrontation.

Aileen McColgan examines the operation of self defence in the UK reasoning that the

judiciary must re-interpret the requirement of reasonable force by comparing the

defendants actions to the abuse suffered and not the preferred model of a bar-room

brawl.53 For example, following the American case State v Wanrow54, a women when

attacked by a man was permitted significant additional consideration in Court.

Although this case did not involve the retaliation of a battered wife, the Court’s

acceptance of the unique circumstances involving man on woman confrontation may

be a significant development for victims of domestic abuse who kill.

Diminished Responsibility.

The third possible defence open to such a defendant is diminished responsibility,

which without the clear masculine overtones of the preceding defences, may prove

more suitable.55 As diminished responsibility attaches less of a premium to the

experiences of the ‘reasonable man’, its flexible boundaries are capable of reflecting a

more accurate narrative of the victim’s experience. This approach reduces the scope

for ‘essentialist’ c.riticisms as it observes that many women have different encounters.

        

.As with provocation, diminished responsibility stands on two basic

requirements. S2 of the Homicide Act 1957 provides that this partial defence will be

satisfied upon proof of the defendant’s abnormality of mind and further that this

abnormality substantially impaired56 the requisite mental element of the crime. In

spite of the advantages, diminished responsibility is confusing in its mixed use of

medical and legal definitions. The feminist reaction to this defence is one swathed in

caution. Many believe it is unsupportable to encourage the use of a defence which is

vulnerable to jury sympathy: alienating the defendant to whom the jury cannot relate

to or empathise with from the justice system.57 Another possible explanation for

feminist hesitance is that this defence rises only upon the successful assertion that the

accused suffered an abnormality of mind. Feminist jurisprudence seeks to reveal the

gender imbalances in law and promoting a defence seen as compounding women as

unreasonable directly undermines this.58 Furthermore, the battered woman who kills

arguably seeks vindication of her suffering while avoiding the harsh operation of the

law. However as the law is currently constructed, her abusive experience fades in

significance when the legal microscope examines solely her mental status at the point

of the crime; ignorant of what will commonly be the very genesis of her actions.59

Can we reform existing defences?

The Lord Chief Justice in the Ahluwalia case intimated that reforming the law

relating to provocation in Britain is necessary.60 What appears clear from the reading

is that current criminal law defences are failing battered women who kill. While such

defences continue to be construed from a predominantly masculine perspective we

cannot hope to attain justice for female victims of abuse. The current construction of

criminal law forces a battered woman who kills to hope that the trial judge finds

reasonable grounds to establish diminished responsibility. I contend that this position

is wholly insupportable, demonstrated by the original verdict in Sara Thornton’s case.

New South Wales signalled one possible route of reform for Britain in 1982.61 The

New South Wales Crime Act 1900 was re-addressed to allow any provocative conduct

of the deceased to be considered regardless of the proximity in time to the provoked

reaction. In December 1991 a Private Members Bill62 was introduced hoping to tie

British law in line with New South Wales. Further to redressing the requirement of

‘sudden reaction’ in provocation, the Private Members Bill sought to direct the jury to

account for the cumulative violence suffered in each circumstance. However one

disadvantage to this position highlighted by Donna Martinson,63 is the operation of

the double-edged sword. That is to say that more men may utilise this defence to

account for their violent action towards their partner.

It is unlikely that such reform could be effected in an area of law so deeply entrenched

in masculine theories of what is reasonable, what is provocation and ultimately at

what stage will a woman retaliate..

What are the alternatives?

There is convincing arguments for abandoning the use of provocation as a

defence in all fields of criminal law:

“…why the single exculpatory human emotion accommodated by law is murderous patriarchal rage…”64

Without traditional criminal defences, how should the law accommodate battered

women who kill?  The seductive possibility of generating new, unprecedented gender-

specific defences is problematic for many reasons. Although such defences would

ensure accurate representation of the experiences and emotions of women, the dangers

apparent in the operation of the existing defence of infanticide excludes this from a

realistic target.65 In light of this, incorporating expert testimony66 into other pre-

existing defences provides a more pragmatic response. This has been the practice in

North American trials based on self-defence, allowing the jury a lay explanation of

the defendant’s reaction to the continual abuse she has suffered. The ultimate goal of

such mediation is to grant the jury opportunity to understand the alleged reasonable

nature of the defendant’s response:67 a step forward from the blanket definition of

.

reasonableness confined within the masculine parameters of traditional criminal law

defences. Concepts such as ‘battered women syndrome’ and ‘learned helplessness’

are not self-explanatory and are difficult to define. Wilson J noted the importance of

such evidence in cases of battered women who kill:

“The average member of the public can be forgiven for asking why would a woman put up with this form of treatment…such is the reaction of the average person confronted with the so-called ‘battered wife syndrome’. We need help to understand it and help is available from trained professionals”68

Battered women syndrome evaluates the social and economic position of the

defendant through the lens of an expert. Psychological reports are collated and

explained to the jury, not in terms of a physical or mental illness but as a medium

through which the effect of the abuse can be made clear.69

As mentioned above, battered women syndrome would arguably allow for a

representative account of the defendant’s experience. However flaws are apparent in

the structure of this defence. A tendency to concentrate on the ‘learned helplessness’

attached to continual domestic abuse shifts the focus from the violence suffered by the

accused to the vulnerability inherent in such helplessness.70 Significantly this

construction intermingles with previous masculine interpretations of battered women,

characterising the defendant, not the abuser as the problem. Taken together, this

permits the conclusion that the legal notion of learned helplessness is too narrow in its

composition to extend to the multifarious experiences of battered women who kill.71

Furthermore the physical presence of an expert in Court essentially telling the story of

the defendant, arguably compounds suspicions of her vulnerability and serves to

undermine her position. In other words, successfully removing her from the masculine

classification of ‘unreasonable man’, only to transfer her to the legal classification of

‘reasonable battered woman’.72

The use of battered woman syndrome as a defence in Britain would operate like a

jigsaw puzzle. The syndromisation of the battered woman who kills connects with

connotations of her illogicality: bolstered by the strong possibility of its use connected

to provocation or diminished responsibility- not self-defence.73 The Court of Appeal

c.onsidered following this route in relation to a plea of provocation provided that the

‘syndrome’ was medically reinforced. However it is likely that battered women

syndrome shall operate in connection to diminished responsibility74, allowing the

defendant’s story to be told from the mouth of an expert:

                “further reshaped by the frames of the legal system.”75

In summary, alternatives to the current criminal defences engender the same

parameters found in the masculine construction of law:

.

“In resisting male violence and transcending the law the battered woman must be deemed mentally incapacitated and not fully responsible for her acts”76

What appears clear in this paradigm is that the battered woman who kills is bound in a

double paradox: she must assert a helplessness that her violent criminal action

contradicts. This is particularly difficult for the confident, sexually liberated defendant

like Sara Thornton. Marie Fox contends that instead of using an impartial

psychological expert to convey the experiences of the accused; the layman may relate

more closely to the testimony of an employee working at a battered women’s refuge.77

Conclusion-is there a broader perspective?

Perhaps a more enlightening approach points to an analysis outside the realm

of doctrinal law. The tendency among legal academics to ignore the operation of legal

definitions within the system prevents an observation of how they work in practice.

Although the law claims to be dynamic, the above reading confirms its tenacity to the

traditional perspectives on the differences between ‘man’ and ‘woman’.

Significantly, legal definitions are only brought into play in the context of a

trial.Owing to the pre-trial strategies of the legal representatives each case appears

before the Court as a fait-accomplis: the defendant pleading her case from the

condemned position of the vengeful woman who betrayed her gender through using

violence, or from the compassionate perspective of a victim with whom the jury

empathise.78 Evidence of this is clearly shown in the disparity of treatment received

across the many cases of battered women who kill their abusive partners.

In seeking to provide justice to the battered woman, it is necessary to broaden our

horizons beyond a sole focus on criminal law reform. Though arguably a constructive

development; one which can only yield a minimal change. Marie Fox79 contends that

a starting point may be greater awareness of the social problem of domestic abuse,

allocating more funds to the operation of hostages and public redress of the stigma

attached. Following on from this is the assertion of Phyllis Chesler80 that inherent

dangers lie in promoting the media viewpoint that only the most dramatic cases,

providing the most sensational coverage should occupy our analyses. For example,

the case of Anne Reynolds81 where pre-menstrual tension was upheld as justification

for the defendant’s brutal murder of her mother.82 The dangers referred to exist in the:

“dynamic of brief public fascination with individual horror stories followed by extended public quiescence about the more widespread problem”83

‘Public quiescence’ of the social problems surrounding domestic violence serves

purely to retard the position of battered women who kill before the justice system. A

more positive attitude concerns the psychoanalytic theory mentioned above and seeks

to unveil the large proportion of women in our society committing to violent men with

little alternative but to remain.84

Further to the question of media involvement is the question of educational .

intervention in sex-stereotyping. The unhappy frequency with which battered women

who kill are convicted of murder indicates a legal ignorance of their situation. Expert

testimony provides a beneficial learning device for the layman interpreting the

situation of domestic abuse victims. Rather than professional advice on circumstances

uncovered during trial, perhaps prior education of jurors and the wider public would

prevent disparities emerging at the pivotal point of our adversarial system.85

However, this task is enormous. Through educating the judiciary and jurors on the

reality of domestic abuse we continue to fight the discrimination faced by women

before the law. The law allows an attempt to prevent the mournful situation where a

woman must resort to a violent transgression of the criminal law to alleviate her

abuse. To do so the law must step in to change the current societal attitudes towards

male violence in the home.86

The ambit for the revolutionary reform necess.ary is somewhat belittled before the

imbedded gendered perspectives of the lawmakers and figures of legal authority.

Marie Fox highlights a possible option87 following the position of Californian

legislation providing a specific statute designed to deal solely with domestic abuse.

The administrative difficulties in doing so are revealed by Eber88 in the need for

concise and exhaustive definitions of the relevant terms: something that the prevailing

gendered attitudes of the lawmakers may inhibit. Looking to the long-term picture,

redress of the disparate power-control dichotomy89 present in many relationships

throughout society is necessary; without which the current inequality of women as

intimates and as legal persons will prevail.

Matriculation No: 992652614

Word Count: 4950

Subject: Gender and the Law.

Course Convenor: Fiona Raitt.

Date: 26.12.03

Time: 12 noon

Title: “In every field of law and legal practice, the law itself is gendered. That is to say, that the law-whether developed through the Courts, under the common law, or enacted in legislative provisions, reflects the gender of those who have created it: men”

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