Is abuse an excuse for murder?
The new law on provocation creates one law for 'angry men', and another for 'fearful women'.
For years, courts have been accused of bias against women who commit murder. New sentencing guidelines published yesterday by Britain’s most senior judge, Lord Phillips of Worth Matravers, claim to redress the bias between the treatment of women and men who murder (1). What’s going on here?
It is claimed that the changes make the law more ‘fair’. The argument goes that those who kill their spouses in a fit of anger (usually men) can plead manslaughter on the grounds of provocation, but those who kill after suffering domestic violence over a long period (almost always women) cannot. These women are therefore judged to have a greater degree of malice, and are given the heavier conviction of murder rather than manslaughter. Apparently, the report argues, ‘the provocation defence…favours men who kill in anger rather than women who kill out of fear’.
The judges have drawn up a new schema for manslaughter: for the most serious killings, where there is low provocation over a short period, a minimum term of 12 years is recommended; but if there was a high degree of provocation over a long period, any jail term would generally be for less than three years. It is suggested that a man flying off the handle in response to his wife’s infidelity would be put in the first category. A woman killing from fear after years of abuse is more likely to be put in the second.
However, this is about more than evening things up. Instead, it means further undermining the principle of individual responsibility, the very cornerstone of the justice system. Abused women, by these accounts, ‘know not what they do’; they are seen as victims, who are not responsible for their actions.
In the past, the ‘provocation’ defence tended to be more specific. The 1976 case, Regina v Whitfield, summarised it 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 control, rendering the accused so subject to passion as to make him for the moment not the master of his mind.’ The assumption here is that men and women are generally masters of their minds. But the law makes allowances for the fact that, in exceptional circumstances, reasonable people can lose it.
The loss of control must be ‘sudden and temporary’, in the instant of being provoked. If the accused had had time to think about it, it is assumed, they should have regained control and so could be held fully responsible for their actions. It’s a brief aberration for a generally rational individual.
The judges’ new guidelines appear to give this traditional provocation defence less weight. By contrast, they apparently give more weight to the defence of those who kill in response to a sustained period of abuse. The guidelines allow for the ‘cumulative’ impact of provocation, particularly in the case of victims of domestic violence. In these cases, the loss of control isn’t a sudden aberration in response to a particular incident. Instead, the loss of control appears to be seen as continuing for years. The guidelines argue: ‘particularly where the offender is found to have suffered domestic violence from the victim over a significant period of time, the required loss of self-control may not be sudden as some experience a “slow burn” reaction and appear calm.’
It could be argued that, in practice, this change has already occurred in law. In the 1990s, there were a series of cases where women convicted of murdering their husbands were released on appeal. In 1989 Kiranjit Ahluwalia poured petrol over her abusive husband and set him alight; she was released in 1992, after her conviction was cut from murder to manslaughter. In 1985 Emma Humphreys stabbed her boyfriend; 10 years later she was freed (3). Neither of these crimes was committed in sudden moments of passion. Kiranjit Ahluwalia had to wait for her husband to fall asleep and go outside to get petrol. The courts aren’t allowing for a temporary loss of control here. In effect, it was assumed that these women weren’t properly ‘masters of their minds’ for the months and even years that the abuse was occurring.
Back in 1996, the barrister Daniel Lloyd and the academic Sara Hinchliffe warned about the dangerous implications of these judgements. ‘They have, in reality, created a new defence of justifiable homicide which applies exclusively to women.’ (4) Now, it appears that common practice is being written into official guidelines.
Domestic violence is a serious crime, and there is no doubt that some women find themselves in very traumatic situations. But the courts are not the place to redress women’s inequality. The courts should be the place for society holding individuals to account for their actions: their role is not to right all the wrongs in the world, but to try individuals. The place for righting wrongs is the sphere of social reform - for example, by improving social services and making it easier for abused women to leave their husbands.
No doubt that there are grey areas in the murder/manslaughter laws, and an argument for taking the context of a killing into account. The mandatory life sentence in cases of murder can often be a blunt instrument. But as Dea Birkett put it in The Times (London) back in 2002: ‘Domestic violence cannot be excused. But neither is it an excuse for murder.’ (5) The basic principle of our legal system is that we are all equally responsible for our actions, whatever our sex, colour or social position. These laws seem to create a two-track justice system, where women are given the benefit of the doubt, and for men, increasingly, it seems that there is no excuse. This is a double-edged sword, though, because women only get light treatment because they are deemed less than rational beings.
Far from making things fair, these sentencing guidelines seem to formalise inequality. A few women may get off the hook, but it’s likely that women’s equality will come off the worse.
(1) See Manslaughter by reason of provocation
(2) Quoted in ‘Provocative Behaviour’, Living Marxism, January 1996
(3) Quoted in ‘Women should not get away with murder’, The Times, 8 November 2002
(4) ‘Provocative Behaviour’, Living Marxism, January 1996
(5) ‘Women should not get away with murder’, The Times, 8 November 2002