Ever since the beginning of the COVID-19 pandemic, cases of domestic abuse have risen dramatically, to the point that the United Nations described this increase as a ‘shadow pandemic’. Domestic abuse killings in the UK during the first two months of lockdown more than doubled compared to the average in previous years. However, what would happen in court if a woman, as a victim of domestic abuse, killed her abusive partner? Currently, the partial defence of loss of control might be used to diminish the sentence from murder to manslaughter. This replaced the old defence of provocation, which often failed to protect women in these circumstances and was hindered by prejudice rooted in society, thus influencing judges and juries.
To better understand this bias, let’s go back to the 17th Century, when the theory of provocation originated; during the course of the case of R v Manning, the judge directed that the accused, who was being convicted of manslaughter having lost his self-control after seeing his wife with another man, should receive a lighter sentence being that ‘there could not be greater provocation than this’. When using this defence, the defendant had to show that they were provoked to the point of having ‘a sudden and temporary loss of self-control'. However, this principle is a perfect example of the differences between women and men, being that it mainly applies to men, disregarding women’s most likely reaction: the ‘slow-burn’.
A good example of this is the case of Kiranjit Ahluwalia, a woman who moved to the UK from India to marry a man she had never met before. After a decade of intense and indescribable physical and psychological violence and abuse, she set fire to her husband’s feet in 1989, which ultimately led to his death (Williams, 2009). She did not intend in any way to end her husband’s life, but only to cause him pain (Bindel, 2007). When the defence on provocation was introduced in court during Mrs Ahluwalia’s trial, it was believed that because a few hours had gone past from the last fight between the accused and the deceased, she would have had enough time to have a ‘cooling off period’ and calm down. This reasoning does not consider that certain individuals, particularly battered women who have been subjected to many years of violence and abuse, might have a ‘slow-burn’ reaction. It seems unrealistic to lay out a set standard of behaviour for these defences when so many variables could come into play.
One seeking to use this defence had to also prove they reacted as a reasonable person would. The concept of the ‘reasonable person’ is one that raises further issues. Although it should be gender neutral, it tends to be a male’s standard of reasonableness; this leads to a failure to consider that in many cases concerning victims of domestic violence, women commit a crime out of fear rather than anger, which is what would normally trigger a man’s loss of self-control. Nonetheless, it would be hard to determine to what extent gender should have an impact on the ‘reasonable person’. On the other hand, when evaluating cases of domestic violence, many raise the question of why the victimised woman did not leave the abusive relationship, creating concerns over her seemingly unreasonable behaviour (Schneider, 2002).
Much has been done to eradicate this outlook, particularly thanks to Leonore Walker, a sociologist who developed the concept of ‘battered woman syndrome’ in 1984, explaining the psychological effects on the victim caused by living in an environment of domestic violence. Kiranjit Ahluwalia not only was a clear example of ‘battered woman syndrome’, but she was also greatly influenced by her family. In fact, she had already asked them for help in getting a divorce, to escape that horrible situation, but in her community, divorce brought nothing but shame and dishonour. Her brothers ignored her serious problems by simply telling her to be ‘a good wife’ and that it was her duty ‘to make the marriage work’. With many factors contributing to this feeling of entrapment, it is clear why she, and many other women in similar situations, feel like they have no other option.
Conclusion
The defence of provocation in the UK has now been replaced by loss of control, which may not only be attributed to the case of Kiranjit Ahluwalia, but also to others, such as the cases of Sara Thorton and Emma Humphreys as well as the hard work of organisations like Justice for Women. This reform in the law is certainly a step towards better protecting the rights of women, aiming to find a good balance and avoid discrimination against anyone.
Gaia is from Italy and graduated in Law from Exeter University. She is starting the LPC with LLM in London next September. Outside of law, she loves running, art and travelling.
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