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Killing abusive husbands and intruders

The news today is that there is to be an overhaul of the law on homicide, with the partial defence of provocation being done away with. In its place will come two new partial defences:

  • killing in response to a fear of serious violence
  • in exceptional circumstances only, killing in response to words and conduct which caused the defendant to have a justifiable sense of being seriously wronged.
The spin that's being put on this is that it's all to do with domestic violence, and I've no reason to believe that this isn't the thinking behind the legislation. What is interesting is the effect this may have on the intruder in the house scenarios about which I've posted recently.

The scenario of a woman faced with an abusive partner who returns home drunk and threatening is, in many ways, rather similar to that of the homeowner faced with an intruder. While the battered wife knows her partner, she can't know how he will behave at that moment. The homeowner, of course, knows nothing of his opponent at all. With this information deficit, they both might end up killing their attacker.

In the past, as was noted in the Law Commission report which preceded these proposals, battered wives who kill their abusive husbands have been faced with a dilemma:

[D]efendants sometimes plead guilty to manslaughter for fear that a plea of self-defence might fail and leave them with a murder conviction.

If you follow the "audit trail" behind this claim, its source is evidence presented by a group called Justice for Women, which calls for law reform in support of battered wives. However, students of the case law around dealing with intruders in the home may well have come across the case of Brett Osborn, who stabbed a deranged intruder, and later admitted manslaughter for fear that the jury would reject a plea of self-defence. Assuming the facts of the case are as they seem, he appears to have had exactly the same issues to deal with as a battered wife.

This being the case, it looks very much as though the partial defence that will save the battered wife, might also save the homeowner. This new law could be rather interesting because it offers something to both left and right. The left will tend to support the battered wife, the right, the homeowner. One wonders what arguments are going to be put forward to try to limit the new law to one rather than the other.

(By way of an aside, there was a chap from Civitas on the telly today, arguing that the reform was not needed, because a battered wife could run away. But why should she, any more than the homeowner threatened by an intruder? )

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Reader Comments (8)

"While the battered wife knows her partner, she can't know how he will behave at that moment"

Why do they use her and he?

In a partnership the wife maybe a male, and in another the husband maybe a female?

Please enlighten me


Jul 30, 2008 at 8:27 PM | Unregistered CommenterRon
"a battered wife could run away. But why should she, any more than the homeowner threatened by an intruder?"

Because the intruder is invading a space they have no right to be, unlike the husband.
Jul 30, 2008 at 11:12 PM | Unregistered CommenterTDK

Are you saying the battered wife should run away?
Jul 31, 2008 at 8:44 AM | Registered CommenterBishop Hill

There's two issues here: the failing marriage and the imminent threat of violence.

Let's establish a baseline.

Assume that there is no threat of violence and the man doesn't want to leave. The woman has several options. Assuming she wants to stay she can go through the normal process of divorce and try to get him expelled via an injunction. There is no justification for the women to use violence to eject the man.

Now we have the issue of the imminent threat of violence to the woman. Faced with this the first priority has to be self preservation. That might entail leaving or it might entail her attacking him. The critical point is self defence is a mitigation for violence. On the other hand I do not see a justification in preserving the right to stay in the property, since that right can be obtained by other means.

The householder faced with an intruder has a different problem. Since the intruder has no right to be there we can assume that they have malevolent purpose. We only have the problem of self preservation. The householder has had seconds to think about the issue. Fear and adrenoline detract from the ability to think rationally and cooly about the problem. We ought to be generous to someone faced with that dilemma. Flight or flight is not really the issue because I am not starting from the proposition that a householder should fight. I do not think worse of them if they do flee; I am merely asking that if a householder does fight, that we ask the law to take into account the circumstances. The intruder is not equal in this regard - they have had minutes, hours, even years to think about the consequences of breaking in. They created the situation so they cannot claim loss of control at the critical moment. A fight was a likely consequence when they cooly decided to break in.

The wife faced with imminent violence is in the same position. We should be generous to a wife that fights in those circumstances. Once that imminence recedes I have less sympathy.

There have been cases of women who live with an abusive husband over several years, then plot over several weeks to kill him and subsequently carry out that action. I do not sympathise with treating such women with lenience. Such women are murderers becuase they always had an alternative. There exists mens rea which is the critical difference between murder and manslaughter. There is an absence of "heat of the moment". I'll caveat this by saying that if we lived many years ago when women were treated as chattel then I would have a different opinion. However today, a law that defended such women, treats them as less than rational. It treats them as if they are children.
Jul 31, 2008 at 10:07 AM | Unregistered CommenterTDK
It seems to me that the issue behind the Brett Osborn case relates to mandatory sentencing. He was advised that he could plead guilty to manslaughter by provocation, which has a starting point of three years imprisonment, with reductions for a guilty plea and other mitigating factors, or risk a murder trial, which has a minimum mandatory sentence of 15 years (and a life licence, I think).

It has been argued that if there was no mandatory sentencing we would not need such defences as provocation in that sense. Osborn could have then risked a murder trial by jury in the knowledge that in the unlikely event the jury found him guilty, the judge might hand down a reduced sentence.
Aug 5, 2008 at 8:30 PM | Unregistered Commenterukliberty
Somewhere in my researches for this article I think I read that the outcome of the new law will be that because there will be a partial defence of "excessive force in self-defence" when in fear of violence, failure to win acquittal on self-defence grounds will still enable the court to hand down a reduced sentence. I'm not swearing to this though.
Aug 5, 2008 at 10:16 PM | Registered CommenterBishop Hill
Ah that's interesting.

I must confess, I'm more out of my depth than usual when it comes to sentencing. But I don't feel too bad because it looks pretty complicated.
Aug 7, 2008 at 2:27 PM | Unregistered Commenterukliberty
To what state or country is this article refering?
Oct 31, 2008 at 10:43 PM | Unregistered CommenterMStephens

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