BATTERED WIVES WHO KILLED THEIR HUSBAND

Do battered women who kill their husband's deserve leniency under the law, what about battered women, who kill their children?

The evidence in the case of Sara did tend to suggest she was pretty abusive and heavy drinking herself! I think she served about 6 years. Ahluwhalia was an horrific case both in terms of the extreme violence she suffered and the manner in which she killed him, throwing petrol into the room as he slept and then setting light. The law has always favoured men in relation to the defence of provocation in that they tend to react immediately and judges can see oh well they were provoked, but when mental ill health has been caused to the wife and she is in terror there can be what is called a slow burn of rage until it suddenly erupts. Then judges were saying oh you could not have been provoked, you sat and thought about it for weeks and then you killed him, that was murder. The law has become a little more compassionate, a strict application can bring some harsh results. It is a difficult moral dilemma, on the one hand the law has to make clear you cannot take the life of another, but on the other hand also has to demonstrate compassion which it does not always manage to do. Far too many judges are white, Oxbridge etc, are they the right people to be forming a view. Diversity brings differing views, women other cultures etc. The law has a long way to go!

Viv x



Criminal law - provocation
Battered women who kill - Part 1
Mary Luckham, Lectuer SPR; Visiting lecturer, College of Law

During the 1990s “Justice for Women”, a group which began as the “Free Sara Thornton” campaign, together with the Southall Black Sisters, led high profile media campaigns in support of the appeals of Sara Thornton, Kiranjit Ahluwalia and Emma Humphreys – three women who killed their husbands. Justice for Women has since then consistently supported other cases involving women who have been systematically subjected to domestic violence and have killed their abusive partners.
Students of criminal law will be familiar with the names “Ahluwalia” ([1992] 4 All ER 889), “Thornton” ([1992] 1 All ER 306 and (No. 2) [1996] 1 WLR 1174) and “Humphreys” ([1995] 4 All ER 1008). These three cases concern the defences of provocation and diminished responsibility, defences which are only available to charges of murder. A successful plea of either of these defences will result in a conviction of manslaughter instead of one of murder. The advantage here – in addition to the defendant not bearing the stigma of a murder conviction – is flexibility in sentencing. Murder carries a mandatory penalty of life imprisonment whereas for manslaughter, life imprisonment is the maximum penalty. This enables the judge to take all the circumstances into account and sentence accordingly.
The defence of diminished responsibility was created by Section 2 Homicide Act 1957. It requires that the defendant was suffering from an abnormality of mind – which can arise from a number of conditions – which substantially impaired his or her mental responsibility at the time of the killing. It was introduced into English law in response to the Royal Commission on Capital Punishment (Cmnd 8932 1949-1953) which had recommended an extended insanity defence.
Capital punishment for murder was not finally abolished in this country until the passing of the Murder (Abolition of Death Penalty) Act 1965 which substituted a mandatory penalty of life imprisonment. There had been a number of notorious cases where it was felt that the death penalty should not have been imposed. One of these was the case of Ruth Ellis, the last woman to be hanged in this country. She was hanged on the 13th July 1955 at Holloway Prison despite much public sympathy. The newspapers had clamoured for a reprieve and one of them paid for two defending barristers at her trial.
Ellis had shot her lover outside the Magdala pub in Hampstead. She had been sexually abused by her father and subjected to violent physical abuse by her lover who had ultimately rejected her. Although her case is credited as being one of those which led to the creation of the defence of diminished responsibility (it seems she might have been suffering from battered woman syndrome and could therefore, today, plead this defence) the evidence led at her trial indicated the defence of provocation. However, Mr. Justice Havers, the trial judge, withdrew the defence from the jury stating that he considered there to be insufficient evidence of provocation and, effectively, told the jury to find her guilty which they did, after deliberating for 15 minutes.
Of course, at that time a judge did have the power to withdraw the defence from the jury where he considered there to be insufficient evidence of provocation. In 1957 the common law defence of provocation was modified by Section 3 of the Homicide Act and the position now is that where there is any evidence that the defendant was provoked to lose his self-control then the question of provocation must be left to be determined by the jury. (See also R v Doughty [1986] Crim L.R. 625)
This defence requires, firstly, that the defendant was provoked to lose his self-control and, secondly, that the reasonable man would have been provoked to do as the defendant did. So far as the first criterion is concerned, the jury must consider that, at the time of the killing, the defendant might have been provoked to lose his self-control i.e. was so subject to passion as not be be master of his/her own mind: “Indeed circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation.” Devlin J in Duffy [1949] 1 All ER 932 .
The second criterion is that the jury must be satisfied that the reasonable man would have done as the defendant did. This was seen to be an “objective” test based upon a hypothetical reasonable person. For a long time, the only characteristics which could be attributed to the reasonable man were age, sex and any personal idiosyncracies which were “relevant” i.e. had some degree of permanence, set the defendant apart in some way and were characteristics against which the provocation had been directed. (See Camplin [1978] AC 705 HL and Newell [1980] 71 Cr App Rep 331).
Both of these criteria have given rise to problems for battered women as will be seen below.
Kiranjit Ahluwalia, who after enduring many years of violence and humiliation from her husband, threw petrol into his bedroom, whilst he was sleeping in there, and set it alight. Her husband died six days later. She was convicted of murder at trial, her defence of provocation having been unsuccessful. The trial judge had directed the jury in accordance with the classic definition in Duffy (above) that provocation required conduct: “…which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control.” It is likely, in view of the facts, that the jury did not consider that she might, at the time of the killing not have been master of her mind – it was not an instantaneous reaction.
She appealed to the Court of Appeal who affirmed the judge’s direction to the jury but allowed evidence of endogenous depression at the material time and confirmed that, as it was a major depressive disorder that it could come within the ambit of Section 2 Homicide Act 1957 – diminished responsibility. The Court of Appeal held that, given the medical evidence which had not been properly pursued at her trial, the conviction of murder was unsafe and unsatisfactory and ordered a retrial at which she was convicted of manslaughter. Her sentence reflected the number of years she had already spent in prison and she was released.




Criminal law - provocation
Battered women who kill - Part 2
Mary Luckham, Lectuer SPR; Visiting lecturer, College of Law

Emma Humphreys, who had had, since childhood, a history of cutting her wrists went to live with a man at the age of 16. He lived off her earnings as a prostitute and consistently beat her. On the night she killed him he and his friends had mentioned the possibility of a “gang-bang” and, later, when he taunted her that she had not made a very good job of cutting her wrists she stabbed him, killing him. She was convicted of murder having failed with her defence of provocation but on appeal the Court of Appeal quashed her conviction and substituted one of manslaughter holding that characteristics of abnormal immaturity and attention-seeking were relevant and could therefore be attributed to the reasonable man on the basis that they represented a permanent condition from which she suffered.
Emma Humphreys had spent a long time in prison. Leave to appeal had been refused in 1986 but she renewed her application in the 1990’s perhaps because a more liberal approach to the defence of provocation was, by that time being demonstrated. Arguably, by then the erosion of the objective, or the reasonable man test had already begun.
Sara Thornton, who suffered from a personality disorder had been assaulted violently on a number of occasions, by her husband who was an alcoholic. On the final occasion, she went to the kitchen, sharpened a knife and stabbed him, killing him. She was convicted of murder. Her defence of provocation was not accepted by the court.
On her first appeal, the Court of Appeal, as it had in Ahluwalia, approved the dictum in Duffy that there must be a sudden and temporary loss of self-control. However, the court did confirm that a history of provocation could be taken into account – i.e. cumulative provocation. Nevertheless it was held that even though there might have been a history of provocation, if the evidence was that the defendant had not been provoked to lose his or her self control at the time of the killing then the defence would fail.
On her second appeal against conviction in 1996, the Court of Appeal quashed the conviction on the basis that it was unsafe and unsatisfactory, battered woman syndrome and the personality disorder from which she suffered not having been left to the jury as characteristics to be attributed to the reasonable person. The court ordered a retrial which took place at Oxford Crown Court where the jury convicted her of manslaughter. She was sentenced to 5 years’ imprisonment. However, as she pleaded both provocation and diminished responsibility at her retrial it is impossible to say whether the jury necessarily accepted that her defence of provocation was made out. The jury may have reached its verdict on the basis that she was suffering from diminished responsibility.
These cases and others during this period have highlighted anomalies in the law. A man might receive a comparatively light sentence for manslaughter, where his self-control had snapped and he had killed his wife after years of constant nagging and taunting or where he had discovered that she was having an adulterous affair, whereas a woman subjected to years of physical and mental abuse would be likely to receive a mandatory life sentence because none of the defences available following a charge of murder would be wholly appropriate to the circumstances in which she killed. Women being smaller and physically weaker are less likely to respond in the same way as men, especially where they have already been subjected to violence. They fear it happening again. Both Ahluwalia and Thornton, for example, killed their husbands whilst they were asleep, appeared to be in control and, in the case of Ahluwalia, had planned the killing having purchased the petrol a few days beforehand. In situations like this it is very difficult to assess after the event whether a killing was out of despair and/or ‘slow burn’ resulting in a woman not being master of her own mind or whether it was a planned revenge attack.
Battered women have not normally raised the defence of self-defence (a complete defence) and have been frequently unsuccessful with the defence of provocation. Such women have, at least since Ahluwalia (where the Court of Appeal confirmed that battered woman syndrome was a condition which could come within the ambit of Section 2 Homicide Act 1957) been more successful with the defence of diminished responsibility. However, to raise the defence of diminished responsibility is to admit to mental abnormality, which although preferable to an admission of murder is not one that is necessarily appropriate to or desired by these women.
It has long been argued, that the law on provocation and self-defence, being based upon male standards of behaviour, and perhaps more appropriate to bar-room brawling than to the plight of battered women, results in injustice.
The defence of self-defence in some states in the United States has been interpreted to accommodate these women. So far as the law for England and Wales is concerned, self defence is a justificatory and complete defence – a successful plea resulting in a complete acquittal, unlike provocation or diminished responsibility. It is also a general defence and not just available where the charge is murder. The requirements are that there must be a need to use force and, in addition, any force used must be “reasonable” although pre-emptive strikes are permissible where the threat is imminent. Although it could be argued that, where such women are concerned, the threat is always imminent, juries will be disinclined to return a not guilty verdict on the grounds of self-defence where, for example, the defendant poured petrol over her sleeping husband and set it alight (Ahluwalia) or stabbed her husband to death whilst he was lying down, drunk and unarmed (Thornton). Such force is unlikely to be seen as “reasonable” in the circumstances.
Unless, therefore an excusatory defence of excessive force could be used in cases of murder so as to enable a jury to return a verdict of manslaughter in situations such as this, self-defence is unlikely to benefit many such women. The House of Lords in the case of Clegg [1995] 1 AC 482 said that any such change in the law was a matter for Parliament to consider. In the more recent case of R v Martin (Anthony) [2002] the House of Lords ruled that although the jury could take into account in relation to self-defence the physical characteristics of the defendant, in deciding whether excessive force has been used they were not entitled to take into account whether the defendant was suffering from a psychiatric condition which might make him perceive any circumstances as being a greater threat than would the normal person. The policy behind this decision is that whereas provocation only applies to murder, self-defence applies to all assaults and it is a complete defence and according to Lord Woolf CJ: “There is also the undoubted fact that self-defence is raised in a great many cases resulting from minor assaults and it would be wholly disproportionate to encourage medical disputes in cases of that sort.”
To be continued