Almost two years ago now, I wrote a post on the defence of provocation, and how it tends to favour males who “lose it” and kill rather than women. This is not a conscious gender bias, but just something which has happened because of the different way in which men and women (generally) behave, and their differing physical strengths. Women are more likely to have a “slow burn” response than a sudden loss of control.
Thus, I was interested to read that the UK is proposing to amend the law on provocation to make a more gender inclusive defence:
Under the reforms, the new partial defences would be
• Killing in response to a fear of serious violence
• Killing in response to words and conduct which caused the defendant to have a justifiable sense of being seriously wronged.
The new concept of the “words and conduct” defence could apply, for example, when a rape victim killed his or her attacker after being taunted about what happened. The partial defence could also be used when a mother kills a man after catching him trying to rape her daughter, said a Ministry of Justice spokeswoman.
It could also similarly apply when neighbours have been involved in a long-running dispute, leading to one of them killing the other, although the spokeswoman said this would be a “very exceptional” case.
Responses from the legal profession have varied:
Ian Kelcey, chair of the Law Society Criminal Law Committee, said: “This review has long been needed, particularly with regard to the provocation defence in domestic abuse cases.
“At the moment there is an unhelpful mishmash of statute and common law, so the government’s desire to tidy up the lack of clarity that exists around these kind of offences and defences is to be welcomed.”
But some leading barristers think there are serious flaws in the government’s plans.
Geoffrey Robertson QC said: “This consultation paper is a grave disappointment to those who want a rational reform for the law of murder. That will only be achieved by abolishing the mandatory life sentence which judges are forced by parliament to impose on crimes of very different degrees of seriousness – from terrorist killings and gangland executions at one extreme to mercy killings at the other.
“Overall, the effect of these changes will be to keep people who have killed through loss of temper or self-control in prison for longer than necessary. That is hardly a reform.”
I tend to think that if one is going to have a provocation defence, then this is the best way to address the inherent gender imbalance in the way the law operates.
However, I have often wondered whether the defence should be abolished altogether, and matters such as domestic violence, sudden loss of temper and the like should be factors taken into account more generally in terms of the crime with which the perpetrator is convicted and the sentence which is imposed.
3 Comments
“seriously wronged” ?? That would seem to cover my mother-in-law killing most of the directors of various belly up finance companies in New Zealand
I think - and this could be very out of whack - that the ’seriously wronged’ limb constitutes an attempt to preserve part of the old defence of provocation. In Australia, at least, it always had to be based on a fairly subjective understanding - a reasonable person, but one with the same characteristics as the accused.
This meant taking ethnicity, intellectual impairment etc into account when working out whether the accused had actually been ‘provoked’. As I understand it (this has been all over the news over here), the courts have been stretching the definitions of both provocation and self defence in order to cover women who kill abusive partners.
They’ve had to do this because - as someone pointed out in one of LE’s links - murder attracts a life sentence, whether a gangland killing or due to a pub punch-up gone wrong.
I’m not a fan of the mandatory life sentence - I’d prefer that there be some discretion rather than distorting legal doctrine.
I also hate that subjective judgment aspect of provocation - like the Victorian case of R v Dincer, in which it was “OK” for a Turkish man to lose control and kill his daughter for entering into a relationship of which he did not approve because that was something which would be considered provocative in the Turkish community.