Are murder laws sexist?
In much of the UK, men on trial for killing their partner are no longer allowed to use the excuse of provocation. But are judges following the spirit of the law designed to eliminate sexism from the judicial process?
"There could not be greater provocation than this."
That was the ruling of a 1670 court in the case of John Manning, who walked in on his wife "in the very act" of adultery with another man and "flung a jointed stool at him, and with the same killed him".
Manning's punishment? He was burned on the hand, but only "gently", so as to reflect the seriousness of the provocation he faced.
The idea of a woman's infidelity being enough to excuse murder was confirmed a few decades later in a 1707 case - R v Mawgridge. Ruling in that case, the lord chief justice listed several different scenarios in which a murder conviction should be reduced to manslaughter, letting the killer off the most serious punishment. These included:
"Where a man is taken in adultery with another man's wife, if the husband shall stab the adulterer or knock out his brains this is bare manslaughter: for jealousy is the rage of man and adultery is the highest invasion of property."
The idea that a man's wife is his "property" may seem outdated, but three centuries on, how much have things really changed?
"My research demonstrates that judges are continuing to treat provocation in the form of infidelity as potentially very serious," says Jeremy Horder, professor of criminal law at the London School of Economics.
He should know. Horder was the law commissioner who prompted a change in the law of provocation that took effect in England and Wales in 2010 and Northern Ireland in 2011. (The Scottish Law Commission is currently reviewing homicide laws north of the border.)
Until that recent change, the provocation defence was widely regarded as sexist, originating as it did from those 17th and 18th Century cases. Although they dealt with men killing other men they caught in bed with their wife, in practice it has usually been women who are the victims when it comes to jealous and violent attacks.
The latest statistics for England and Wales show that 53% of women aged over 16 killed in 2012-13 were killed by a partner or ex. For men the figure is just 4%.
Scottish statistics covering the 10 years to 2011-12 show that 51% of the female victims of homicide aged 16 to 70 were killed by their partner, compared with 6% of male victims. For Northern Ireland, the equivalent figures for the five years to 2013-14 are 73% for women and 3% for men.
In cases involving infidelity before the law was changed, it was clear that courts were sympathetic to male defendants who were confronted with their partner's cheating. In one 1985 case, a man had killed his wife after she mocked the size of his penis, comparing it unfavourably with that of another lover.
This provocation was seen as sufficient to acquit him of murder. His sentence was ultimately reduced to four years after the Court of Appeal ruled: "To taunt a man about his lack of sexual inclination or prowess does involve striking at his character and personality at its most vulnerable."
As recently as 2002, the Court of Appeal found that two cases involving sexual infidelity should result in shorter sentences because the killings came out of "uncharacteristic violence".
Horder, and the Law Commission he was part of, proposed changes to the old defence of provocation to correct its "lopsided character" in a 2006 report.
The principle of provocation
- Defined by Section 3 of the 1957 Homicide Act thus: "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."
- Replaced by defence of "loss of control" in Sections 54 and 55 of the Coroners and Justice Act 2009
The government took those recommendations on board and put forward new legislation. The then women's minister Harriet Harman was clear at the time about the problem it was designed to fix. "Changing the law will end the injustice of women being killed by their husband and then being blamed," she said. "It will end the injustice of the perpetrators making excuses saying it's not my fault - it's hers."
The statute that implemented the change, the Coroners and Justice Act, has now been in force for several years. But Horder is concerned that the courts aren't following the spirit of the new law.
"Attitudes are hard to change I think," he says. "There's been more than one case in which the Court of Appeal has indicated that a judge can treat infidelity as serious provocation when it comes to sentencing, even though at the trial, the judge tells the jury to ignore that evidence completely. I don't think that the judges are really following through in the way they should on what parliament was saying in 2009."
That view is not shared by everyone in the legal world. In a 2011 case, the then lord chief justice said the new law was "concerned with the substantive criminal offence of murder, not with the determination of the minimum term where murder is admitted or proved". He said it was "common sense" that "provocation may provide relevant mitigation to murder".
Horder disagrees with this reading of sentencing law, arguing that provocation in that context is focused on the defendant's mental state, not anything the victim has said or done.
In support of his view that judges have failed to shift their attitudes with the times, he cites another 2011 case in which the Court of Appeal saw infidelity as a reason to reduce the killer's sentence. The defendant killed a man with whom his partner was having an affair. Despite the killing being premeditated - the defendant armed himself with an iron bar before going to find his victim - the minimum term was reduced by the appeal court.
Explaining their decision, the judges described the woman's infidelity as the "greatest possible provocation". That choice of words - so similar to the court's 341 years previously in the John Manning case - suggests to the critics that judges remain all too ready to sympathise with hot-headed and violent jealous men.
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