Abuse and loss of control in homicide: comparative reform solutions
Heather Douglas and Alan Reed
In our article, The role of loss of self-control in defences to homicide: a critical analysis of Anglo-Australian developments, we analyse the operation of the ‘loss of control’ defence introduced by the Coroners and Justice Act 2009 (CJA) in 2009. The ‘loss of control’ partial defence to murder replaced the provocation defence in England and Wales (sections 54–56 CJA). We review this reform in England and Wales and also examine reform of the provocation defence in Australia, in particular in Queensland and New South Wales (NSW). We focus on the operation of the defence in the context of an abused woman who kills her abuser. Notably, one of the key challenges for law reform has been how to ensure homicide defences are not overly restrictive for abused women who kill their abuser, while at the same time ensuring that homicide defences are not overly expansive for domestic abusers who kill their partner. We highlight a number of concerns with the current articulation of the ‘loss of control’ defence in the CJA and with the provocation reforms in Queensland and NSW.
The defences of ‘loss of control’ and provocation in homicide represent an exceptional mitigatory factor in English law and in some Australian states. In murder cases, the fact that the accused committed the violent act under ‘loss of control’ or when provoked may result in a conviction for manslaughter. In England and Wales, the ‘loss of control’ defence now posits several opportunities for the Crown to disprove it. The first requirement is subjective, requiring that the killing resulted from the accused’s (partial) loss of control (section 54 CJA). The loss of control no longer needs to be ‘sudden’ and ‘temporary’. This may mean that the defence is more accessible to victims of family violence who may not lose control immediately in response to the identified provocation, while, an accused who has acted with a desire for revenge, will not have lost control. The second requirement is the imposition of new ‘qualifying triggers’ (section 55CJA). The ‘loss of control’ defence is unavailable to the inciter of violence, and anything done or said related to sexual infidelity is to be disregarded. It was hoped that these reforms would assist abused women who killed their partner in response to domestic abuse. Our analysis of the Sally Challen case suggests that the reforms may have some concerning limitations.
Sally Challen killed her husband Richard Challen with at least 20 blows of a hammer. The marriage had endured 31 years. Sally alleged that Richard anally raped and sexually assaulted her, made egregious and continual demands of her and created an atmosphere of subservience reinforced by threats. Richard had caused distress to Sally through his unfaithfulness, visits to brothels, and his demeaning of her in front of family and friends. The couple had recently reunited after separation and were preparing for a trip. During the course of preparations, Sally checked Richard’s phone and realised he had recently rung another woman. She attacked him with the hammer. At the initial trial, provocation was not pleaded, but was left to the jury to consider. Sally was convicted of murder and sentenced to life imprisonment. Fresh psychiatric evidence that Sally had a borderline personality disorder and bipolar affective disorder at the time of the killing was admitted in the appeal against conviction, heard eight years subsequently. It was also contended that evidence of Richard’s coercive and controlling behaviour supported the defence of ‘loss of control’. The Court of Appeal expressed no view on whether Sally was a victim of coercive control and quashed the conviction and ordered a retrial based on the psychiatric evidence.
Sally Challen was presented by the prosecution as jealous and brooding, rather than a person who had endured sexual violence and coercive control, as well her husband’s sexual infelicities and intimate breaches of trust. While killings prompted by proprietorialness (often male), sexual jealousy and premeditation by a cuckolded partner ought to be excluded from the ‘loss of control’ defence, the apparent disqualificatory trigger of sexual infidelity (in section 55(6)(c) CJA) may present a potential hurdle for other primary victims of abuse. We argue that, in some cases, where a loss of control is in response to an instance of sexual infidelity in circumstances where it is part of a history of coercive control, a manslaughter conviction may be justified. In Clinton  EWCA Crim 2 the appellate court determined that it was a misdirection to withdraw the loss of control defence from consideration where sexual infidelity was relevant to the totality of matters relied on as a qualifying trigger for loss of control.
In the article, we consider reforms to the provocation defence in Queensland and NSW, Australia. Reforms in both jurisdictions have attempted to ensure that abused women who kill their abuser can access the provocation defence while at the same trying to narrow the application of the provocation defence in circumstances where domestic abusers killed their partner. This has proved to be a difficult balance to achieve.
Queensland has retained a traditional common law formulation of provocation but identifies that, except in ‘circumstances of an exceptional character’ the provocation defence does not apply, in the context of a domestic relationship or where the provocation is based on anything done by the deceased, or anything the person believes the deceased has done to end or change the relationship (section 304 Queensland Criminal Code). While this addition was developed to ensure that men who were provoked by their partner’s decision to leave or change the relationship would not have access to the defence, at least one recent case has resulted in an apparently jealous male partner being convicted of manslaughter of his partner pursuant to this defence. NSW provocation law now provides for a verdict of manslaughter in cases where the killer lost control in response to ‘extreme provocation’, defined as a ‘serious indictable offence’ (section 23 Crimes Act 1900 (NSW)). A non-violent sexual advance or conduct incited by the accused to provide an excuse to use violence against the deceased are both expressly excluded as forms of extreme provocation. Our review of case law demonstrates that, while no cases involving domestic abuse have yet engaged the new formulation of provocation, several cases have defined serious indictable offences very widely to include harassment and intimidation, and in a practical sense this may mean there is little change in the application of the provocation defence in NSW.
In England and Wales, Queensland and NSW, reforms to the provocation defence aimed to balance the aspirations of limiting the defence of provocation in circumstances where men act with proprietary entitlement over women’s lives with the need to retain the defence for use by abused women who have killed their partner after experiencing abuse. Our analysis questions whether the reforms have achieved this balance. Drawing on a range of alternative approaches in Australia, we conclude our article with some suggestions for reform. Our suggestions include the introduction of evidence provisions that encourage the admission of family violence evidence and an alternative partial defence specially developed to be used in situations where abused women kill their abusive partner in circumstances that fall short of self defence.