West Law Report

New partial defences in domestic abuse

Posted in Uncategorized by mrkooenglish on November 18, 2008

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In the report “New defence in domestic abuse cases“, Guardian, 29 Jul 2008:

People who kill their partners after years of abuse would be able to use a new defence that they had acted in response to extreme “words and conduct”, under government plans to change the law on murder.

The proposals from the Ministry of Justice, to be unveiled today, would also provide a defence for women in domestic violence cases who kill their partners in premeditated attacks. They would be able to rely on a defence of “fear of serious violence” but would not have to show they acted spontaneously.

The reforms, triggered by concerns about the different treatment of men and women in cases of domestic violence, would mean the abolition of the 17th century defence of provocation and a more precise medical definition of diminished responsibility. At the centre of the reforms is tackling gender inequality: the view that it is too easy for men to say they killed female partners because of infidelity, or the ending of a relationship, while women with abusive partners find it hard to mount a similar partial defence.

The partial defences reform:

· 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.

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Julie Bindel on the reform (“An end to the easy way out“, Guardian, 29 Jul 2008)

These reforms, although a long time coming, are along the right lines. It is wrong to kill out of jealously, or because someone insults you. This is not serious provocation, nor should it be an excuse for murder. Whereas battered women are often trapped in their situation, with nowhere to run, the victims of “nagging” and infidelity can simply leave the relationship, without the fear of being tracked down and killed.

Although there are those disappointed that the government did not go down the American route of replacing manslaughter with second-degree murder, it was right not to. There should be a distinct crime of murder – a crime in which no mitigating circumstances feature. Why should women, such as the late Emma Humphreys, the victim of horrendous abuse by the man she killed, be labelled a murderer? Emma once told me that the stigma was almost as bad as the life sentence that came with it.

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Editorial: Murder, motive and mitigation“, Guardian, 29 Jul 2008

Today’s reforms fall short as they retain the mandatory life sentence. Through a second-degree murder charge – or simply through extra judicial discretion – scrapping it could provide the flexibility needed to deal with the varied circumstances in which human beings kill one another. Even so, the reforms deserve support for achieving even-handedness between the two major motives, anger and fear.

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