Provocation and Responsibility

Clearly, these points indicate that generally the defence of provocation is not unfair to the accused – in fact, it is fairly easy to satisfy the conditions of the provocation defence in the majority of cases, especially, for example, seen as though words are enough to constitute provocation (Homicide Act 1957, s. 3). However, reverting back to the question, the defence of provocation is certainly not too favourable to battered women who kill their partners, as there are many disadvantages to the defence when women become the accused.

As mentioned previously, for the defence to work there must be a "sudden and temporary loss of self control" (Devlin J. ). This is sexually biased, and to the disadvantage of women who tend to ponder and contemplate an action before carrying out an action (which would therefore equal a cold blooded attack) compared to a man's immediate and aggressive reaction which fulfils provocation.

Jeremy Horder in "Provocation and Responsibility" 5 therefore responds to this by conducting that the defence of provocation should be abolished as "it fails to capture the reality of the lives of many women" – battered women don't kill due to loss of self control but because they don't see any other way out of their predicament. They therefore don't kill out of anger but despair, which is not covered by provocation. Another argument against the case that the law of provocation has become too favourable to battered women is the fact that it is hard to identify "battered wife syndrome".

There is no actual definition of the condition, or any classification of what symptoms a sufferer of such a disorder must show. It is therefore more common for the judge to direct the jury into thinking a woman who has suffered much taunting in a relationship is just acting in revenge, rather than demonstrating a loss of self control. The 1993 Home Affairs Committee called for a review on murder and manslaughter so as to widen the defence of provocation to cover more battered women who kill their partners.

As commented in Jefferson's "Criminal Law" 6 it would call for "excellence in drafting to exculpate women who kill when suffering from battered women's syndrome but convict those who kill in revenge". The Homicide (Defence of Provocation) Bill 1992/3 included a clause which would have permitted the jury to take into account "any conduct of the deceased, including domestic violence… " This would result in the reaction to provoking, no longer being required to be sudden.

Clearly, this would be beneficial to battered women and make the defence of provocation less harsh to this sector, as, after years of abuse, it cannot be expected for the accused to possibly react "reasonably". One can only hope for possible reform, however, after any such changes were crushed due to R. V Smith [2001] (in which the accused killed his friend while severely depressed but was allowed to appeal over the trial judges decision that the jury wasn't to judge his reaction against that of an ordinary severely depressed person).

In conclusion, one can confirm that the law of provocation is perhaps an easy defence for many, as it is not hard to satisfy the conditions required. However, it is far from easy for battered women to use provocation as a defence unlike this statement suggests… instead, perhaps the most deserving parties of such a defence, face further obstacles when they come up against the judicial system. 

Bibliography:

M. Jefferson, Criminal Law,6th ed. , Longman Publishing, 2003 N.Baird, Criminal Law Questions and Answers 2002-3, 4th ed. , Cavendish Publishing, 2002 J. Dine& J. Gobert, Cases and Materials on Criminal Law, 2nd ed. , Blackstone Press Ltd. , 1998 J. Horder [1999] King's College Law Journal 143 1J. E Penner, Mozley&Whiteley's Law Dictionary, 12th ed. , Butterworths, London, 2001 2 per Devlin J. , in R V. Duffy [1949] 3 (See above footnote) 4 N. Baird, Criminal Law Questions and Answers 2002-3, 4th ed. , Cavendish Publishing, 2002 5 J. Horder [1999] King's College Law Journal 143