Battered women who kill their abuser and the problem they create in regards to access to justice has been discussed for many years by many academics. The English legal system has attempted to update partial defences to murder to remedy the situation, through the abolition of the problematic and gendered provocation defence, replacing it with another based upon loss of control contained within the Coroners and Justice Act 2009. This work reviews these updates, how effective they may be, and considers, through comparative analysis with other jurisdictions, if other solutions are available, and how English law should proceed.
The issue of battered women who kill was inarguably one of the most compelling reasons for replacing the law of provocation in England and Wales.1 The new defence contained in the Coroners and Justice Act 2009 is the first attempt made to give these women an adequate defence to murder, albeit partial. To understand if these issues have been resolved by the new provisions,2 it is important to recognise the problems that the provocation defence caused for such cases, and question if there were other, more appropriate, avenues for change. For example, could the efforts made by other jurisdictions to address the problem presented by battered women who kill be considered? This work will consider these routes to justice in cases of self-preservation, question if the partial defence of loss of control is the solution it claims to be, and provide recommendations for more suitable reform.
Battered women who kill their abuser, often in non-confrontational circumstances, has long been discussed, debated and deliberated.3 It is the assumption being made by the defendant that is most problematic; in a pre-emptive attack, how can we be sure there would have been further violence? Even with self-defence, we are dealing with actions that are “inherently predictive”, and so seeking to excuse or justify her actions proves difficult.4 Of course, it would seem that deeming these women murderers is completely inappropriate; but no complete or partial defence seemed to cover them in even a remotely adequate manner before the attempts made by the Coroners and Justice Act 2009.5 Their plight would mostly fall short of the rules of self-defence, because battered women who kill their abuser tend to act when no immediate physical threat is present. Diminished responsibility would deem them irrational beings, which is an erroneous label to apply to such situations.6 The most likely candidate did seem to be the partial defence of provocation. Even this defence was impractical for the circumstances, and a great driver in its abolition and replacement. We must remember that battered women killing their abusers have not created a problem in the law; they have simply prompted us to consider problems with the law which have always existed.
To explore the issues surrounding battered women who kill, one must ask not only what problems abused women have experienced in the past in trying to defend their actions under the old law, but what other solutions have been applied to the problem, not only in this jurisdiction but others too.8 This work theorises how a battered woman might use the partial defence of loss of control, and aims to challenge two misconceptions. The first is that the “fear of serious violence” trigger to the new partial defence provides an adequate pathway for battered women who kill to have murder reduced to manslaughter. The second misconception is that it is this first qualifying trigger alone which is applicable to cases of battered women who kill their abuser. From a theory demonstrating their heightened sense of fear to the acceptance of cumulative provocation, the road to justice in this area of the law has been a long one.9 The aim of this article is to deduce if we are at the destination yet, based on how satisfactorily the new partial defence of loss of control will deal with battered women who kill after a prolonged period of abuse.