Qwerty Dvorak
11th March 2008, 02:11
Okay, so we were studying the defence of provocation in criminal law and a rather interesting debate came up related to gender-differences and domestic abuse.
First of all, let me explain briefly the defence of provocation. It is a defence specific to a murder charge, and can only reduce the conviction from murder to manslaughter if successful (the key difference between the two is that manslaughter does not carry a mandatory life sentence). Provocation occurs when the actions of the deceased impact on the accused in such a way that the accused suffers a sudden loss of self-control during which the act of murder/manslaughter is committed. The key element is that the provocation actually renders the accused completely subject to passion, and that the accused completely loses command over his actions. The defence has often been successfully claimed by victims of some form of abuse who then killed the perpetrators of this abuse. One example is a 15 year old rape victim who killed his rapist; another is an 18 year old sexually impotent man who stabbed a prostitute after she jeered him and kicked him in the balls because he had tried but was physically unable to have sex with her.
<irrelevant side note>
In England the test for provocation is an objective one, meaning that the jury must consider whether or not a reasonable person would react in such a way to the alleged provocation, though they may have regard to the specific characteristics of the accused. In Ireland, however, the test is completely subjective, and the jury must put themselves in the shoes of the accused in determining whether provocation occured.
</irrelevant side note>
However, it is contested that there is a problem with this defence. The source of this problem is that the loss of self-control must be sudden and immediate; that is, the accused must have lost self-control and killed the deceased at the instance of the provocative act. The trouble is that there is well-documented psychological evidence that women react to abuse in a different way to men. If a women attacks or otherwise abuses her male spouse or partner he will react immediately, usually defending himself or leaving the woman. In extreme cases the abuse could cause the man to suddenly and immediately lose control and kill the women, and then claim provocation to get his sentence reduced to manslaughter. However, if a male abuses his female spouse or partner, the female will generally not react. Women allegedly have a tendency to endure abuse from their male partners over a long period of time, each individual act of abuse having a cumulative effect on the woman's psyche until one day, perhaps a considerable amount of time after the last instalment of abuse, she snaps, loses control and does something drastic. This something is the woman's reaction to the abuse, and has in the past involved killing the man. This phenomenon is known as slow burn syndrome, or battered wife syndrome. However, there is a problem in that, because of the time delay between the abuse and the reaction, the loss of self-control is not sudden or immediate and therefore does not constitute provocation, leading to a conviction of murder for the woman where a man would only get manslaughter for reacting to abuse.
We only really studied two authorities on this, both of them English and both of them from 1992. In R v Thornton, it was held that slow burn syndrome did not allow a provocation defence, but the fact that the defendant was a victim of abuse could be considered a relevant characteristic to be taken into account by the jury. In R v Ahluwalia, again it was held that slow burn syndrome could not lead to a defence of provocation, but rather it could lead to a defence of diminished responsibility (which is kind of an "insanity-lite" defence, which also reduces a murder conviction to manslaughter).
Notwithstanding the above, do you think that this is an unacceptable gender-bias in the law? Obviously as rev-leftists we all have major qualms with bourgeois law but do you think that this a real issue which needs to be addressed?
First of all, let me explain briefly the defence of provocation. It is a defence specific to a murder charge, and can only reduce the conviction from murder to manslaughter if successful (the key difference between the two is that manslaughter does not carry a mandatory life sentence). Provocation occurs when the actions of the deceased impact on the accused in such a way that the accused suffers a sudden loss of self-control during which the act of murder/manslaughter is committed. The key element is that the provocation actually renders the accused completely subject to passion, and that the accused completely loses command over his actions. The defence has often been successfully claimed by victims of some form of abuse who then killed the perpetrators of this abuse. One example is a 15 year old rape victim who killed his rapist; another is an 18 year old sexually impotent man who stabbed a prostitute after she jeered him and kicked him in the balls because he had tried but was physically unable to have sex with her.
<irrelevant side note>
In England the test for provocation is an objective one, meaning that the jury must consider whether or not a reasonable person would react in such a way to the alleged provocation, though they may have regard to the specific characteristics of the accused. In Ireland, however, the test is completely subjective, and the jury must put themselves in the shoes of the accused in determining whether provocation occured.
</irrelevant side note>
However, it is contested that there is a problem with this defence. The source of this problem is that the loss of self-control must be sudden and immediate; that is, the accused must have lost self-control and killed the deceased at the instance of the provocative act. The trouble is that there is well-documented psychological evidence that women react to abuse in a different way to men. If a women attacks or otherwise abuses her male spouse or partner he will react immediately, usually defending himself or leaving the woman. In extreme cases the abuse could cause the man to suddenly and immediately lose control and kill the women, and then claim provocation to get his sentence reduced to manslaughter. However, if a male abuses his female spouse or partner, the female will generally not react. Women allegedly have a tendency to endure abuse from their male partners over a long period of time, each individual act of abuse having a cumulative effect on the woman's psyche until one day, perhaps a considerable amount of time after the last instalment of abuse, she snaps, loses control and does something drastic. This something is the woman's reaction to the abuse, and has in the past involved killing the man. This phenomenon is known as slow burn syndrome, or battered wife syndrome. However, there is a problem in that, because of the time delay between the abuse and the reaction, the loss of self-control is not sudden or immediate and therefore does not constitute provocation, leading to a conviction of murder for the woman where a man would only get manslaughter for reacting to abuse.
We only really studied two authorities on this, both of them English and both of them from 1992. In R v Thornton, it was held that slow burn syndrome did not allow a provocation defence, but the fact that the defendant was a victim of abuse could be considered a relevant characteristic to be taken into account by the jury. In R v Ahluwalia, again it was held that slow burn syndrome could not lead to a defence of provocation, but rather it could lead to a defence of diminished responsibility (which is kind of an "insanity-lite" defence, which also reduces a murder conviction to manslaughter).
Notwithstanding the above, do you think that this is an unacceptable gender-bias in the law? Obviously as rev-leftists we all have major qualms with bourgeois law but do you think that this a real issue which needs to be addressed?