Domestic Abuse, Suicide and Liability for Manslaughter: In Pursuit of Justice for Victims
| Date | 01 August 2020 |
| Published date | 01 August 2020 |
| Author | Anne Lodge |
| DOI | 10.1177/0022018320940127 |
| Subject Matter | Articles |
Article
Domestic Abuse, Suicide and
Liability for Manslaughter: In
Pursuit of Justice for Victims
Anne Lodge
Teesside University, UK
Abstract
There is significant debate about the attribution of criminal responsibility for involuntary
manslaughter to a defendant who has subjected a victim to a protracted campaign of emotional
abuse (falling short of psychiatric injury), where the victim has consequently taken their own
life. By virtue of it having been subjected to the most comprehensive judicial and academic
scrutiny in this context, the primary focus of this discussion is on the applicability of the
unlawful act manslaughter offence to the circumstances described above. The offence requires
proof that the victim was placed at risk of some harm by virtue of the defendant’s criminal
conduct and that the abusive conduct significantly contributed to the victim’s death. The
accused does not have to foresee or intend the victim’s death, and while the imposition of
criminal responsibility for serious homicide offences in cases where the defendant displays no
subjective advertence to the risk of death has long been controversial, it is nonetheless well
established in English and Welsh criminal law. Therefore, assuming satisfaction of the requisite
offence elements, there is arguably no principled reason to deny the extension of liability to
domestic abuse-induced suicide cases. It is proposed that a more progressive and transparent
approach to the interpretation of the unlawful act manslaughter offence requirements provides
the most appropriate means of securing prosecutions in deserving cases, although alternative
options for the imposition of liability—the offence of gross negligence manslaughter and the
creation of a context-specific homicide offence—are also acknowledged. It is argued that the
constructive manslaughter offence label reflects both the moral culpability of the perpetrator’s
patterned and invasive conduct and the exceptional gravity of the harm caused by non-physical
domestic abuse.
Keywords
Domestic violence and abuse, coercive and controlling behaviour, suicide, unlawful act
manslaughter, causation
Corresponding author:
Anne Lodge, Senior Lecturer in Law, Teesside University, Borough Road, Tees Valley, Middlesbrough TS1 3BX, UK.
E-mail: a.lodge@tees.ac.uk
The Journal of Criminal Law
2020, Vol. 84(4) 273–292
ªThe Author(s) 2020
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DOI: 10.1177/0022018320940127
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Introduction
The government’s ostensible commitment to protecting survivors of domestic violence and abuse
through the criminal justice system’s pursuit of perpetrators of such harm (even in cases where the
intervention of the criminal justice system may be unwanted and, arguably, unhelpful)
1
is evidenced by
recent substantive
2
and procedural developments designed to support the eradication of violence against
women.
3
Against this political backdrop, it seems paradoxical that domestic abusers whose conduct
precipitates a victim’s suicide have thus far managed to evade the full rigour of the criminal law’s
prohibitions against harmful conduct.
4
While the current focus on both civil and criminal measures
available to protect survivors of domestic abuse is both important and welcome, to achieve true justice
for all victims—including those whose voices have been perpetually silenced as a result of the abuser’s
conduct—more attention must be paid to the adequacy of the criminal law’s response in cases where
domestic abuse drives victims to suicide. This article explores the challenges faced, and opportunities
presented, by the offence of unlawful act manslaughter, since this has emerged as the most likely
mechanism for bringing perpetrators of abuse-induced suicide to justice. The proceeding discussion
provides a contemporary contextual analysis of the suitability of this offence, with the aim of supporting
existing claims that a more transparent and defensible approach to the attribution of criminal responsi-
bility in domestic abuse–induced homicide cases is achievable. For the sake of completeness, brief
consideration is also given to the potential applicability of the gross negligence manslaughter offence
and to tentative proposals for the creation of a context-specific offence.
The imposition of criminal liability in cases where domestic abusers have contributed significantly to
the suicide of their target victim is a legal conundrum that has received relatively limited academic
attention since a flurry of commentary on the seminal case of Dhaliwal.
5
Recently, however, there have
been renewed scholarly appeals for a reconsideration of liability for domestic abuse–related suicide, with
the problem being described as ‘ripe for re-examination’,
6
because of the, ‘apparent inability ...[or at
least reluctance]...of the legal system to punish perpetrators who contribute significantly to their
victims’ suicide’.
7
To date, the application of the unlawful act manslaughter offence in domestic abuse
1. For further discussion of the limitations of criminal legal responses in the context of domestic abuse, see for example S.
Walklate and K. Fitzgibbon, ‘The Criminalisation of Coercive Control: The Power of Law?’ (2019) 8(4) International Journal
for Crime, Justice and Social Democracy 94; and L. Goodmark, Decriminalizing Domestic Violence: A Balanced Policy
Approach to Intimate Partner Violence (University of California Press, California 2018).
2. Notably, the introduction of ‘stalking’ offences in ss. 2A and 4A of the Protection from Harassment Act 1997 (as amended by
the Protection of Freedoms Act 2012, s. 111) and the creation of the coercive and controlling behaviour offence in s. 76 of the
Serious Crime Act 2015.
3. These measures are all part of a broader governmental strategy to eradicate violence against women and girls through the
incorporation of a wide range of measures; for further detail, see HM Government, Ending Violence against Women and Girls
Strategy 2016-2020 (March 2016), most recently updated in March 2019. The Domestic Abuse Bill, currently before Parlia-
ment, also contains a raft of measures to combat the problem of domestic abuse. Disappointingly, neither the strategic doc-
umentation nor the current Bill directly addresses the issue of domestic abuse–induced suicide.
4. It is important to note that the failures in the criminal legal responses to domestic abuse cases can be both procedural and
substantive; see M. Burton, ‘Commentary on R v Dhaliwal’ in R. Hunter, C. McGlynn and E. Rackley, Feminist Judgments:
From Theory to Practice (Hart Publishing, Oxford 2010) 257.
5. R v Dhaliwal [2006] EWCA Crim 1139. Useful scholarly analysis offered in the aftermath of the Dhaliwal decision includes:
Law Commission, Murder, Manslaughter and Infanticide Law Com Rep No. 304 (2006); J. Horder and L. McGowan,
‘Manslaughter by Causing Another’s Suicide’ (2006) 12 Criminal Law Review 1035; C. Elliot and C. De Than, ‘Restructuring
the Homicide Offences to Tackle Violence, Discrimination and Drugs in a Modern Society’ (2009) 20(1) King’s Law Journal
69; and J.E. Stannard, ‘Sticks, Stones and Words: Emotional Harm and the English Criminal Law’ (2010) 74 Journal of
Criminal Law 533
6. V.E. Munro and R. Aitken, ‘Adding Insult to Injury? The Criminal Law’s Response to Domestic Abuse-Related Suicide in
England and Wales’ (2018) 9 Criminal Law Review 732 at 732.
7. R. Aitken and V.E. Munro, Domestic Abuse and Suicide: Exploring the links with Refuge’s Client Base and Work Force’
(Refuge, London 2018) at 2.
274 The Journal of Criminal Law 84(4)
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