Proposed New Defence For Victims of Domestic Violence

Imagine these two situations. In the first a husband is beating up his wife in the kitchen. She seizes a knife and kills him.

In the second a wife after years of physical and mental abuse decides that she cannot cope anymore and meticulously plans to kill her husband by poison.

Currently the wife in the first scenario could plead provocation as a partial defence to murder. But that defence is not possible in the second.

Provocation can reduce a charge of murder to one of manslaughter. Does the victim’s conduct provoke a sudden loss of self control? In domestic situations it carries the seeds of the phrase “a crime of passion”. The second aspect of the defence of provocation is “Would a reasonable man in that situation do the same?” All this will change if the government’s proposals announced this week become law.

The announcement follows a review of legal issues by the The Law Commission. Their brief is to look at the laws of England and Wales and see whether they need updating.

Approximately four years ago The Law Commission turned its attention to murder. The law in relation to murder is currently contained in the Homicide Act 1957 whose principles go back to the 17th century. Society has certainly changed since then.

The English system of Common Law means that numerous court cases have interpreted the Act over the years and these cases have to be looked at in conjunction with the Act when considering the outcome of any trial.

In 2006 the Law Commission suggested various classes of murder. I am sure we have all watched American cop shows use the phrase “Book him, Murder One”. If the 2006 recommendations had been followed our police in England and Wales, would be saying the same.

The Government shied away from such a major overhaul and in December 2007 announced a step by step approach to the reforms. In particular they wanted to consider in more detail some of the partial defences to murder.

These defences are diminished responsibility and provocation.

In essence, the idea of diminished responsibility is that a person suffers from an abnormality of mind.

So returning to the examples I quoted at the beginning of this article the Law Commission’s recommendations could affect these types of domestic violence cases.

The Law Commission wants to abolish the defence of provocation. In its place would be a defence that the “words and conduct” of somebody meant that the killer was “seriously wronged”.

“Seriously wronged” would not include discovering your spouse is having an affair. This change would eliminate the defence of approximately 100 killers a year who currently escape murder convictions by claiming they were provoked by unfaithful or nagging spouses.

It would however provide a defence to the wife accused of murdering her husband by poison as well as the wife who picks up the knife.

There needs to be clear guidance as to what “seriously wronged” is going to mean in practice. It is always easy to think of black and white situations – lawyers however, often have to deal with situations where the position is somewhat less clear cut.

If these proposed changes are made, it will improve the law concerning domestic violence and its ability to protect its victims. It will follow a number of recent changes both in the law and in the attitude of those involved with the law.

It was not too long ago that the police shied away from involvement in domestic violence issues on the basis that it was a “civil matter”. Now they have a dedicated Domestic Violence team providing support to victims.

For some time it has been possible to obtain injunctions against the perpetrator of domestic violence. However, the subsequent enforcement of those injunctions is not particularly easy. It involves the victim going back to court to prove breaches, meaning that the perpertrator was in contempt of court.

Recent changes mean a breach of a non-molestation injunction is now a criminal offence with the risk of a substantial prison sentence. A far greater sanction.

These changes have increased the public’s awareness of domestic violence and the understanding that it is not just the person who is being hit who is the victim.

Domestic violence affects the children and the broader family. A child is clearly going to be damaged by seeing his father hit his mother. I see reports of children acting violently at school and with their peers having witnessed violence in the home.

As a lawyer I deal with far more situations involving domestic violence than I used to. I do not believe that incidences of domestic violence have increased but more victims are prepared to seek help.

Greater awareness of the resources available to victims means that they are more able get help from a solicitor or one of the agencies that provides support and counselling.

For the victim, taking that first step is always a big decision. I have been told many times that they consider that it is their fault that they are beaten up. One client told me that she did not consider a slap as being “hit”.

Over the years, I have been encouraged to see the change in victims of domestic violence after an injunction has been obtained. Frequently they are transformed with their self-worth restored.

A less frequent response although very much welcomed, is that the perpetrator will sometimes change. I recently acted for a wife who sought an injunction after years of abuse. Her actions brought the husband to his senses. Whilst they are not together they have a good working relationship. This is particularly important when parties have to work together organising arrangements for the children.

The announcement, therefore, is another step in the process that started with the Domestic Violence and Matrimonial Proceedings Act 1976 in supporting victims of domestic violence.

Contact Greg Yates, for further information or advice.

Published 01/08/2008. The author of this article is Greg Yates