Construction of criminal law

Provocation, a two-tier defence encapsulated in s3 of the Homicide Act 1957 revolves . around the judicious and logical 'man of the law'30 who is reduced to physical violence: "… so subject to passion as to make him or her for the moment not the master of his mind. "31 The two pillars which support the defence of provocation involve the subjective and objective requirements.

A female defendant pleading provocation is therefore required to establish that the abusive treatment received caused her to lose her self-control. It will then be left to the jury to distinguish whether her reaction could also be one of 'the reasonable man'. 32 Although in R v Camplin33 the reasonable man was held to include personal characteristics of the accused such as age and gender, this is not directly transferable to the case of the battered women though may have made further reform possible. Marie Fox reveals that the female problem is four-fold. 

Traditionally judicial insight into female behaviour and reactions is muted and hazy. This is compounded in the first misconception of the feminine position. The cases of Sara Thornton and Kiranjit Ahluwalia did not satisfy the requirement of 'suddenness' for the purpose of provocation.

Therefore the law condemned them as cold-blooded vengeful murderers. In reality, their responses to the cumulative violence were indicative of the different degrees of physical strength between their sleeping partners and themselves. 36 Duffy was quoted with approval in Thornton, the trial judge upholding the standard that: "… most acts of provocation are cases of sudden quarrels, sudden blows inflicted with an instrument already in hand… where there has been no time for reflection… Fists might be answered with fists, but not with a deadly weapon. "

How can this extend to the position of the battered wife? It takes no account of the physical differences between men and women and fails to observe the reality that any unsuccessful retaliation by the victim may inevitably bring harsher repercussions. The judiciary has forsaken these women by confining them within the masculine sensibilities of the reasonable man. I contend that this pattern shall continue despite the attempt in Camplin to include a 'reasonable woman' test.

As Hilary Allen observes: "the now commonplace use of the term 'reasonable man' keeps alive the 'illusion' of a universal and unitary subject of law… on the contrary it is variable, differentiated and very firmly gendered"38 Secondly, the masculine definition of what legally constitutes provocation intimately lends itself to the male psyche in that the periphery of violence is more commonly transgressed by men than women. 39 Men will typically be provoked to respond to issues such as his partner's infidelity while women may. be provoked by the constant threat of violence to herself or her children. For almost 300 years the judiciary saw provocation to violence as contrary to a woman's character.

The present availability of such a defence does little to improve the female position: merely attributing men's weaknesses as a threshold for female provocation is an injustice to the female defendant. 40 The law is more covert in its bigotry as the standard is disguised as one of gender neutrality yet greater importance is attached to a man's sexual security than to a woman's personal safety. A clear adjustment of the criminal law defences is necessary to achieve justice for the battered woman. The possibility of establishing gender-specific defences forms a later part of this discussion.

The third area of concern is the judicial position regarding a woman's emotional character in situations of abuse. 41 A man is justified in his anger when provoked while women cannot easily attribute their violent responses to the fear connected to cumulative violence. The existence of feminine anger, whether through fear or otherwise, is an emotion out of sync with judicial conceptions of femininity. Anger manifesting in violence by a female perpetrator goes against the grain of both the criminal law and the essence of the 'feminine'.

Masculine provocation includes a perspective on the challenging conduct of the victim. In the case R v Wells43 Bisla Rajinder Singh's plea of guilty to manslaughter through provocation was upheld by the Court of Appeal. 44 Following a history of violent abuse displaying little regard for his wife's right to live, Susan had 'provoked' him through "cutting hurtful phrases" concerning the real father of his daughter. Singh shot her twice "through no fault of his own"45as the provocation was of sufficient gravity to justify his actions. It is . therefore difficult to explain why a female victim of domestic abuse who kills is denied full legal representation of her accrued suffering: a factor often solely to blame . for her loss of self control.

Finally, Marie Fox points to the social conditioning of women against using violence and the judicial failure to appreciate this. While male violence in the face of provocation is seen as inherent in his nature, a woman is undermined by her failure to realise: "… other alternatives available, like walking out or going upstairs"47 Self Defence. A clear convenience of this defence is that it defies any unlawful element in the killing.

Although acquittals based on self defence are rare it accounts for the main position pleaded by female victims of domestic abuse who kill in North America. 48 Britain procrastinates over the use of this defence in such circumstances. Similar to provocation, Holly Maguigan was able to collate common feminist perspectives on self defence in a murder trial and conclude four main underlying themes. 49 First, the objective 'reasonable man' test falls foul of the female defendant for the same male bias reasons as provocation.

Secondly the recurring idea that a delay in any reaction prevents reliance on either provocation or self-defence is found in the requirement that the danger facing a self-defence claimant must be immediate. Again, this legal masculine perspective ignores the cumulative effect of domestic abuse and fails to accommodate the disparity between the male and female physical forms. Thirdly, self defence is premised on a 'one-off'50 physical confrontation between assailants of moderately equal physical strength. This is reminiscent of the judicial failure to accord recognition to the social attitude of women, traditionally against violence found in the feminist critiques of provocation.

Ultimately self defence incorporates a 'duty to retreat':51 a requirement often impossible in real situations of danger in the family home. This extends from the judicial approval accorded to the one-off brawl between men where the force used must proportionately reflect the threat posed. A duty to retreat is indicative of 'male valour'52: a commendable decision of the reasoned and sober man to step away from a confrontation.

Aileen McColgan examines the operation of self defence in the UK reasoning that the judiciary must re-interpret the requirement of reasonable force by comparing the defendants actions to the abuse suffered and not the preferred model of a bar-room brawl. 53 For example, following the American case State v Wanrow54, a women when attacked by a man was permitted significant additional consideration in Court. Although this case did not involve the retaliation of a battered wife, the Court's acceptance of the unique circumstances involving man on woman confrontation may be a significant development for victims of domestic abuse who kill.

Diminished Responsibility. The third possible defence open to such a defendant is diminished responsibility, which without the clear masculine overtones of the preceding defences, may prove more suitable. 55 As diminished responsibility attaches less of a premium to the experiences of the 'reasonable man', its flexible boundaries are capable of reflecting a more accurate narrative of the victim's experience. This approach reduces the scope for 'essentialist' c. riticisms as it observes that many women have different encounters.

As with provocation, diminished responsibility stands on two basic requirements. S2 of the Homicide Act 1957 provides that this partial defence will be satisfied upon proof of the defendant's abnormality of mind and further that this abnormality substantially impaired56 the requisite mental element of the crime. In spite of the advantages, diminished responsibility is confusing in its mixed use of medical and legal definitions. The feminist reaction to this defence is one swathed in caution. Many believe it is unsupportable to encourage the use of a defence which is vulnerable to jury sympathy: alienating the defendant to whom the jury cannot relate to or empathise with from the justice system.

Another possible explanation for feminist hesitance is that this defence rises only upon the successful assertion that the accused suffered an abnormality of mind. Feminist jurisprudence seeks to reveal the gender imbalances in law and promoting a defence seen as compounding women as unreasonable directly undermines this. 58 Furthermore, the battered woman who kills arguably seeks vindication of her suffering while avoiding the harsh operation of the law. However as the law is currently constructed, her abusive experience fades in significance when the legal microscope examines solely her mental status at the point of the crime; ignorant of what will commonly be the very genesis of her actions.

Can we reform existing defences? The Lord Chief Justice in the Ahluwalia case intimated that reforming the law relating to provocation in Britain is necessary. 60 What appears clear from the reading is that current criminal law defences are failing battered women who kill. While such defences continue to be construed from a predominantly masculine perspective we cannot hope to attain justice for female victims of abuse.

The current construction of criminal law forces a battered woman who kills to hope that the trial judge finds reasonable grounds to establish diminished responsibility. I contend that this position is wholly insupportable, demonstrated by the original verdict in Sara Thornton's case. New South Wales signalled one possible route of reform for Britain in 1982. 61 The New South Wales Crime Act 1900 was re-addressed to allow any provocative conduct of the deceased to be considered regardless of the proximity in time to the provoked reaction. In December 1991 a Private Members Bill62 was introduced hoping to tie British law in line with New South Wales.

Further to redressing the requirement of 'sudden reaction' in provocation, the Private Members Bill sought to direct the jury to account for the cumulative violence suffered in each circumstance. However one disadvantage to this position highlighted by Donna Martinson,63 is the operation of the double-edged sword. That is to say that more men may utilise this defence to account for their violent action towards their partner. It is unlikely that such reform could be effected in an area of law so deeply entrenched in masculine theories of what is reasonable, what is provocation and ultimately at what stage will a woman retaliate..