For this assignment the focus will be upon critical analysis of three main defences of voluntary manslaughter for women defendants who kill their partners. The work will demonstrate, self-defence, provocation and diminished responsibility, how they are constructed and there relevant uses to women defendants. Specific laws and provisions will be noted, together with any proposals for reform in my conclusion. Murder is distinguished from manslaughter by the mens rea, the intention to kill or cause grievous bodily harm, the presence of intent is a matter for the jury.
The actus reus, the defendant must cause the death of another human being. Self-defence Self-defence is a complete defence, as it is a win-or-lose option it therefore encourages use of the partial defences of provocation and diminished responsibility, only when self-defence is not an appropriate defence for battered women. 1 An act of self-defence needs to be spontaneous: Attorney-General's Reference (No. 2 of 1983)2 The burden remains on the prosecution to disprove a defence of self-defence, as stated in Abraham3.
Self-defence can be placed at common law and under s 3(1) of the Criminal Law Act 1967, it states: 'A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suggested offenders or of persons unlawfully at large'. 5 The concepts used for reasonableness is, necessity and proportionality, has developed at common law mainly through cases of male defendants. The male standard, together with, the current failure adequately to address the reality of extreme violence under which many women live. 6
The male standard derives from the scarcity of female killers, 'together with the incompatibility of aggressive force with stereotypical femininity'. 7 It will be shown that the test of reasonableness is biased. The reasonableness of force, is based on the accused's subjective belief that the amount of force used was necessary. The jury consider what the accused thought 8 and therefore, the subjective standard depends on reasonableness assessed by others. 9 A woman's response to whether a perceived attack is reasonable, is an objective question only to the extent that her views of the necessity for force.
The level of force required in response to the perceived attack, according to Palmer10, "the most potent evidence of the reasonableness of such force". 11 The test was further expounded in William12 where the Lord Chief Justice commented: "where self-defence… is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked… and that force was necessary to protect himself… then the prosecution have not proved their case. '13 The force used must be proportionate, the initial problem for women is, that on average they are of smaller body size than men.
Woman, resort to using a weapon as they cannot inflict deadly force using their body, whereas men can. The use of weapons ipso facto indicates intent. Under the 1967 Act, where force is used for prevention of crime there is immunity from prosecution, only if it is reasonable, a requirement, that overlaps with common law. 15 If excessive force is used and is proved beyond reasonable then neither s 3 or common law will aid her. Many battered women are faced with no realistic alternative than to use force. 16 A woman's use of force might be the only way to escape to the constant violence, which she believes will end her life.
Furthermore, a battered woman may believe any attempt to escape would carry the risk of her death rather than freedom. 17 Men threaten and pursue their absent wives. 18 36 per cent of women were killed when they tried to leave intimate relationships or in the process of leaving. The main methods of killing used were, beatings 29 per cent, stabbings 30 per cent and strangulations 33 per cent. 19 On this point, Ashworth states, 'a woman who failed to leave a violent marriage had willingly exposed herself to violence' as a result she bore some blame for the violence'.
This seems an extremely harsh view, placing the blame on the victim. Self-defence assumes that the killing was necessary in order to resist imminent danger as confined to an immediate act of violence, or whether, fear of a future attack is based on previous attacks. 21 It is not so much the definition, but the construction of this defence, which prevents its use by women. The law as we will continue to see, appears to be inherently masculine and therefore violates a woman defendant right to equal protection.
It is worth noting that many battered women, know the offender, he has hit them before. While women are defending themselves, they lose out since the court is not satisfied that their attack on the abuser is not imminent. 24 Carol Peters plea for self-defence failed due to the strictures of proportionality and immediacy. The case of People v Garcia25 saw the extension of imminence beyond the immediate time period. 26 To have a successful plea of self-defence it is a legal acknowledgement that the defendant's action was justified, that it is was correct under the circumstances.
The focus in on the act not on the personality of the defendant. 27 In the UK, evidence of battered woman syndrome was introduced for the first time in mitigation in the appeal of Janet Gardner who was convicted of manslaughter and not self-defence. She was sentenced to prison for five years for stabbing her brutal and bullying ex-lover. 28 However in Canada, the Canadian Supreme Court, acknowledged in Lavallee29 that the reasonable man does not apply to the women's experiences and have opted for admission of expert evidence.
The US courts have also admitted expert evidence of the effects of prolonged abuse 'apparently because they doubt the reasonableness of a battered woman's perception of danger'. 31 It has been suggested that the question of the reasonableness of the defendant's reaction, the jury could ask three questions relating to battered women evidence: Would a reasonable woman have reacted as the defendant did? Would a reasonable battered woman have reacted as the defendant did? Would a reasonable battered woman suffering from battered woman syndrome have reacted as the defendant did?
Wilson J in Lavallee: 'the abuse of women within marriage as an aspect of the husband's ownership of his wife… the centuries old law that a man is entitled to beat his wife with a stick 'no thicker than his thumb'… One consequence of this attitude was that 'wife battering was rarely spoken of, rarely prosecuted, and even more rarely punished….
In view of the defence of self-defence, it appears to offer a more 'appropriate defence and the legal basis is already in place for accommodating the battered woman's experience…until Parliament expressly provides for battered defendants, the R v Ahluwalia34 decision will hopefully result in the provocation defence proving more useful to battered women who kill.
Research shows, failed pleas of self-defence in the battered women cases in England, there may be more leeway in a plea of provocation. 36 Provocation If a self-defence plea is unsuccessful, the accused remains entitled to acquire a defence of provocation. The onus of the evidential burden lies on the defendant and therefore must raise sufficient evidence to provocation. If successful it reduces the offence charged from murder to manslaughter.
In DPP v Camplin. 38 The Homicide Act 1957 does not fully define provocation. Devlin J. defined provocation in Duffy39 as: "… some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind… "40 'The Court of Appeal in Thornton41, Ahluwalia and Richens42 rejected the argument that s 3 of the 1957 Act, provided a self-contained definition of provocation.
In Ahluwalia the court stated that 's 3 did not provide a general or fresh definition of provocation, which remains a common law defence. Moreover the partial definition in Duffy remains good law. 43 The defence involves consideration of three elements. Firstly, 'was the accused provoked thereby losing self-control? ', secondly, 'would a reasonable man have lost his self-control? ', and finally, 'would a reasonable man have done as the accused did? ' The first element is subjective and deals with suddenness. It is satisfied if any evidence of provocation can be determined, the trial judge leaves the question to the jury.
The subjective element can be viewed in another way, by arguing for jury directions on the 'cooling off' aspect. This will assist battered defendants avoiding life sentences. Furthermore, it should encourage prosecutors to accept manslaughter pleas, thus sparing battered defendants of murder trials. 44 Considering that, at the time of the killing there was a loss of self-control. 45 English law views the element of 'suddenness' restrictively. Whereas, Australian law has gives a liberal interpretation to 'suddenness', they recognise the notion of cumulative provocation.
Their approach to 'suddenness' is more attuned to the human reality of violent and protracted inter-personal relationships and to slow-burning rages'. 47 In English law, slow burning appears to be overlooked by defence lawyers and judges. 48 Slow burn suffering on battered women, can be seen through, fear, despair, helplessness and anger. This eventually erupts into the killing of their batterer, mainly while he sleeps49 as in Wyatt50, the wife had shot her husband dead whilst he slept and was convicted of manslaughter. 51 The second condition, "would a reasonable man have lost his self control?
" This element is judged objectively, 'being a battered woman is a relevant characteristic which could be attributed to the reasonable man'. 52 I will show further in this work that things said or things done to provoke the reasonable man is based on the male gender. 53 In Camplin, 'The House of Lords laid down that juries should regard the reasonable person as; "… having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics… "