Battered Women and Failed Attempts to Kill the Abuser—Labelling and Doctrinal Inconsistency in English Homicide Law
| Author | Michael Bohlander |
| DOI | 10.1350/jcla.2011.75.4.716 |
| Published date | 01 August 2011 |
| Date | 01 August 2011 |
| Subject Matter | Comment |
COMMENT
Battered Women and Failed Attempts to Kill
the Abuser—Labelling and Doctrinal
Inconsistency in English Homicide Law
Michael Bohlander*
Liegt der Irrtum nur erst wie ein Grundstein unten im Boden,
immer baut man darauf, nimmermehr kommt er an Tag.1
J. W. v. Goethe and F. Schiller, Xenien, 1796
Keywords Battered women; Doctrinal consistency; Homicide law;
Partial defences; Attempts
The Coroners and Justice Act 2009 (CJA 2009) among other things
reformed the law on provocation, now called loss of control, and dimin-
ished responsibility. While the criteria triggering the defences have been
amended to a certain extent, the consequence is still the same: murder
is downgraded to manslaughter in both cases, opening the way for a
discretionary sentence befitting the specific circumstances of the case.
However, much as under the previous law, both defences do not apply to
attempted murder and the Law Commission in its 2004 Report Law
Com. 290 on Partial Defences to Murder treated the issue as follows:
5.21 Second, if the defence is necessary and desirable for labelling pur-
poses, why should it be confined to the offence of murder? If the
person who kills with the mens rea of murder can and should be
labelled as somebody other than a murderer because of reduced
responsibility, then why not the person who is guilty of attempted
murder (with its stricter mens rea requirement) or who inflicts griev-
ous bodily harm with intent? This issue is addressed by very few of
our consultees, no doubt because non-fatal offences of violence are
outside our terms of reference.
Whether the last comment was correct is open to question. The issue
was, in any event, not resolved. Indeed, the words ‘attempted murder’
appear only twice in the entire report, namely in the quote above and in
footnote 27 to that paragraph. A similar problem arose in the 2006
Report Law Com. 304 on Murder, Manslaughter and Infanticide. The
* Professor of Law, Durham Law School; e-mail: michael.bohlander@durham.ac.uk.
I would like to thank Chris Enzor, Durham; Alan Reed, Sunderland; Berend
Keulen and Hein Wolswijk, Groningen for advice and comments upon an earlier
draft. All remaining errors are mine.
1 Translation by the author: ‘Once an error lies like a cornerstone in the ground, one
always builds upon it, and it comes to light no more’.
279The Journal of Criminal Law (2011) 75 JCL 279–288
doi:10.1350/jcla.2011.75.4.716
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