Susan S M Edwards*

In my recent article in the Northern Ireland Legal Quarterly, I describe how women, in preservation of their lives, have been forced to defend themselves and, as a result, in some cases kill their abusive partners. In such circumstances, they have been convicted of murder, diminished responsibility and in some instances involuntary manslaughter accident, or loss of self-control-provocation. Homicide law is gendered and constructed around what men do, how they react to particular circumstances and when killing conduct is permissible. Such judgments have been grounded in notions of reasonableness and male notions of culpability. The privileging of male conduct has been constituted in law for centuries, shaping the criminal law, the rules of evidence and procedure, who can speak and how, and the development of criminal law defences. The legal rules of self-defence are founded on circumstances of combat between two men equal in physical stature. By contrast, circumstances in which an abused woman finds herself unequal in size and physical strength when defending herself against male violence and abuse and with a weapon are outside law’s contemplation.

Likewise, circumstances of provocation/manslaughter have been founded on what is considered be wounding to male pride and hubris and therefore justifying angered killing and a loss of self-control. Circumstances where women are forced to protect themselves against repeated male violence and abuse and the threat of it were not within the contemplation of provocation/manslaughter. Women victims/survivors of male abuse and violence who have killed abuser partners out of a fear, terror, despair, and a need to survive have found the crafted male-centric defences of provocation/manslaughter or self-defence largely inaccessible to them.

The growing recognition that when women killed violent and abusive partners they did so out of fear finally resulted, after decades of campaigning, in the introduction of section 55(3) of the Coroners and Justice Act 2009 where ‘fear of serious violence’ was included as a qualifying factor – a ‘trigger’ for ‘loss of self-control’ voluntary manslaughter, a partial defence to murder. This development was anticipated to be a vital and important step in recognising the situation of a woman who, in fearing a partner’s violence, control and abuse, kills him to preserve her own life. It also marked an important step in addressing the embodied gender inequality within the law. Both the requirements of ‘fear of serious violence’ and a ‘loss of self-control’ must be established. The defence has not achieved all that its campaigners had hoped.

Fear remains little understood, and since the loss of self-control requirement is retained, together with the language of a precipitating ‘trigger’, this provision continues to cognise mental functioning within a framework which belongs to and still sits within angered responses and with fear, anxiety and trauma. The language and notion of a ‘trigger’ continues to bind the law to its past, harking back to the idea of a reflexive and mechanistic outburst which authorises masculinist reasons by way of a moral gloss of being ‘seriously wronged’.

This is because loss of self-control functions as the overarching framework for section 55(3) (fear) and section 55(4) (the general loss of self-control provision).

Placing ‘fear’ within the statute, by simply asserting that fear can cause a person to act by killing another, is of itself not enough to ensure that battered and abused woman will have access to a voluntary fear-manslaughter defence and succeed with it. Much more needs to be done and the substantive law requirements undermine its success. The requirement of ‘serious violence’ as a ‘trigger’ for ‘loss of self-control’ manslaughter undermines its purpose and runs counter-intuitive to an understanding of women’s fear which is the product of an abusive background and anticipatory fear and not reducible to what happens prior to the killing act.

Further problems arise as a high bar  of ‘serious’ is set in the language and, further, the recognised conduct is that of ‘violence’. Here can be seen an example of an inequity with the general loss of self-control provision under section 55(4) and also a flagrant inconsistency and incoherency in the law given the recognition elsewhere of the multifacetedness of domestic abuse which already includes coercive control, recognised under the Serious Crime Act 2015, and more recently under the Domestic Abuse Act 2021, section 1. So, not so much progress as was promised!

In holding the law to account and in asking whether the law has achieved its statutory purpose in providing a fear defence for women who kill violent abusers I examined all cases heard and disposed of between 2011 and 2015 where women had killed intimate partners. The paramount question in this study is whether the inclusion of fear (section 55(3)) as a trigger for ‘loss of self-control’ is accessible to women who kill (April 2011 to year ending March 2016 – five years). The methodology had some limitations, and the background circumstances were derived for each case from a variety of publicly accessible sources. Home Office statistics recorded 40 females convicted of homicide offences against 39 male intimate partners/former partners and one female partner. Of the 40 cases, three female partners were convicted of diminished responsibility, seven of ‘other’ manslaughter and 30 (75 per cent) convicted of murder. If only seven women were convicted of ‘other’ manslaughter, which includes several categories including fear, it is certainly not very successful as a defence as possibly only one or two defendants actually succeeded with it. We also know from other sources, notably the research from the Centre for Women’s Justice, that women who plead self-defence when defending themselves from abusive partners rarely if ever succeed. It is possible that some fear defences were pleaded but failed, and thus women were convicted of murder. Whilst several questions are left unanswered, the overall profile is not very encouraging.

There needs to be a thorough review of the operation of this section. As a first step it is necessary to disaggregate the ‘other’ manslaughter (common law) official statistic. For several decades, at least since I began to research this in the early 1980s, the figures for homicides have been grouped under three headings: murder, diminished responsibility manslaughter and other manslaughter following the sections in the Homicide Act 1957. Since the Homicide Act 1957 is superseded by the Coroners and Justice Act 2009, and provocation under common law is now purportedly abolished, the statistical profiles need to reflect this and group the homicide categories around the sections which would enable a proper scrutiny of the impact of fear-manslaughter.

If protecting women who are abused is truly part of the government’s strategy, it is vital that cases where fear is pleaded and fail and where fear is pleaded and succeeds are a matter of record and accountable.

*University of Buckingham: correspondence email: susan.edwards@buckingham.ac.uk