Aligning Partial Defences to Murder with the Offence of Coercive or Controlling Behaviour
| Author | Vanessa Bettinson |
| Published date | 01 February 2019 |
| Date | 01 February 2019 |
| DOI | http://doi.org/10.1177/0022018318814362 |
| Subject Matter | Articles |
Article
Aligning Partial Defences to
Murder with the Offence of
Coercive or Controlling Behaviour
Vanessa Bettinson
De Montfort University, UK
Abstract
This article will reflect on the adoption of s. 76 Serious Crime Act 2015 which criminalises
coercive or controlling behaviour in an intimate or family relationship and considers an
argument for aligning partial defences to murder with it. It takes inspiration from the case of
Sally Challen, granted leave to appeal her murder conviction at the Court of Appeal on 1st
March 2018. Leave was granted after her lawyers successfully persuaded the court that the
introduction of s. 76 Serious Crime Act 2015 amounted to fresh evidence in her defence that
was unavailable at the time of her trial in 2011. Lady Justice Rafferty stated that, “It should be
plainly understood that the application made today is but one step in what, it is hoped by
counsel, those who instruct her and many others concerned in this case, will be a full detailed
exploration of the position, based on scholarship, learning and clinical expertise, which should
prevail now ... A jury, it is argued, should, with the benefit of that learning, be enabled to reach
a clear settled conclusion on the basis of an understanding which, it is said, was not available to
the jury in 2011.” The arguments at her appeal will seek to reduce her murder conviction to
manslaughter, providing an opportunity for this article to explore the complexities of aligning
the partial defences to murder with the offence of coercive or controlling behaviour.
Keywords
Coercive control, domestic violence, abuse, voluntary manslaughter
Sally Challen was convicted of murdering her husband in 2011, after unsuccessfully pleading dimin-
ished responsibility manslaughter. According to the organisation Justice for Women, Challen experi-
enced many years of psychological torment by her husband, which would now be understood as coercive
control. Indeed, such behaviours are criminalised under the Serious Crime Act 2015, s. 76 where they
cause a person to fear that violence would be used against them on at least two occasions or where it
adversely affects their day-to-day life. The recent adoption of the offence represents a milestone in the
criminal law’s recognition of the real experiences of many victims of domestic violence and was not
Corresponding author:
Vanessa Bettinson, Leicester De Montfort Law School, De Montfort University, Leicester, UK.
E-mail: vbettinson@dmu.ac.uk
The Journal of Criminal Law
2019, Vol. 83(1) 71–86
ªThe Author(s) 2018
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DOI: 10.1177/0022018318814362
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available at the time of Challen’s trial for murder.
1
The Court of Appeal has granted leave to appeal
against the conviction, persuaded by the argument that such an ‘advance in understanding amounts to
fresh evidence in the same way that advancement of science such as DNA can result in the undermining
of the safety of a conviction’.
2
The case will therefore lead the court to c onsider the coerced and
controlled victim of domestic violence who kills their abuser in the context of partial defences to murder.
The literature extensively examining the availability of partial defences to battered women who kill
predates the introduction of the s. 76 offence. Consequently, the d ebate has focused on victims of
domestic violence who fear physical violence following a sustained period of ongoing abuse charac-
terised by violence or threats of violence.
3
With the introduction of the offence, the law recognises that
the lived experiences of a domestic violence victim may centre on psychological behaviours that under-
mine the victim’s autonomy.
4
The tactics adopted by the perpetrator may or may not include physical or
sexual violence or threats of it, but nonetheless have a profound effect upon the victim’s well-being. It is
this aspect of the Challen case that offers a fresh opportunity to explore the operation of partial defences
to murder in the context of domestic violence and it is argued that they should be interpreted as far as is
possible to align with the offence, promoting a coherent and consistent legal approach. Efforts to achieve
alignment could negate any urgent need to develop a specific partial defence to murder based on
coercive control. However, given the unique impact of coercive and controlling behaviour, a discrete
defence ought to be considered. It is fair that the vulnerability of a coerced and controlled victim by an
intimate partner is consistently recognised when they enter the criminal justice system as a victim or a
vulnerable defendant who has killed their abuser.
What is Coercive Control?
The conceptof coercive controlis championed by thesociologist Evan Starkwho describes it asa pattern of
behaviours intended to undermine the victim’s autonomy, through the micro-regulation of everyday beha-
viours, leading to punishment if resisted.
5
Stark views coercive control as ‘“gendered” in its construction,
deliveryand consequences’, exercisedby men overwomen and he putsthe emergenceof male use of coercive
and controlling strategies in intimate relationships down to equality gains in the public sphere.
6
The gendered
natureof coercive controland its consequencesfor identifyingit mean that it ‘maybe hard to discernbecause
it falls on the extreme end of a spectrum of acceptable male control over the allocation of resources and so
on’.
7
Stark acknowledges that women can achieve dominance over a male partner, albeit that this is rare,
when she hasan advantage such as incomeor social class.
8
Vulnerability is deepened when domestic abuse
intersectswith other characteristicssuch as ethnicity,where factors suchas race, language,family structures,
social exclusion and immigration status ‘cause multiple orintersectional discrimination which has a direct
impact on BMEvictims’ experienceof violence and will informtheir response to it’.
9
Coercivecontrol can
also feature in same-sex relationships where tactics include threats to ‘out’ a partner, or using status inthe
1. The use of the term domestic violence throughout this article includes all forms of domestic abuse.
2. F Hamilton, ‘My Mum Murdered My Dad. It Was His Fault’ The Times17 February 2018. <https://www.thetimes.co.uk/article/
my-mum-murdered-my-dad-it-was-his-fault-0l9hg955q> accessed 28 August 2018.
3. A McColgan, ‘In Defence of Battered Women Who Kill’ (1993) 13 Oxford Journal of Legal Studies 508.
4. Section 76 applies to coercive and controlling behaviour directed at intimate partners or family members.
5. E Stark, Coercive Control: How Men Entrap Women in Personal Life (OUP, London 2007), 5.
6. Ibid at 205, 377–8 and 130.
7. C Bishop and V Bettinson, ‘Evidencing Domestic Violence, Including Behaviour that Falls Under the New Offence of
‘Controlling or Coercive Behaviour’ (2018) 22(1) International Journal of Evidence and Proof 3, 7.
8. E Stark, ‘Re-presenting Battered Women: Coercive Control and the Defense of Liberty’. (2012) Sine loco (2012) at 5.
9. Sisters for Change, ‘Unequal Regard, Unequal Protection: Public Authority Responses to Violence Against BME Women in
England’ (2017) 24. <http://sistersforchange.org.uk/wp-content/uploads/2017/11/SistersForChange_UnequalRegardUnequal
Protection_Nov2017_Web.pdf> accessed 28 August 2018; see also, A Carline, ‘Zoora Shah: An Unusual Woman’ (2005) 14(2)
Social and Legal Studies 215.
72 The Journal of Criminal Law 83(1)
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