Reconceptualising Sexual Infidelity Provocation: New Anglo-Scottish Reform Proposals
| Published date | 01 February 2024 |
| DOI | http://doi.org/10.1177/00220183241229945 |
| Author | Nicola Wake,Alan Reed |
| Date | 01 February 2024 |
| Subject Matter | Articles |
Reconceptualising Sexual Infidelity
Provocation: New Anglo-Scottish
Reform Proposals
Nicola Wake
Northumbria University, UK
Alan Reed
Northumbria University, UK
Abstract
The Scottish Law Commission has recently confirmed in its Eleventh Programme of Reform,
published in May 2023, the continuation of its medium-term project to examine the law of
homicide. This includes a review of sexual infidelity killings and provocation as a partial defence
to murder, or otherwise. It embraces a critique of whether and, if so, how any necessary pro-
posals for modernising the law in this sensitive and important area should be made. A
Discussion Paper has previously been published for examination. Against this backdrop, we
analyse whether sexual infidelity ought to be retained in extant Scots law, as one of only
two relationally relevant qualifying triggers. In November 2023, the Law Commission in
England and Wales announced its forthcoming review of domestic homicide given contempor-
ary understandings of the impact of domestic abuse. We provide novel insights into Anglo-
Scottish law to seek to recalibrate the understanding of coercive/controlling behaviour in
the contextualisation of sexual infidelity killings. Our review highlights the ways in which alle-
gations of (actual or perceived) sexual infidelity may be symptomatic of coercive control
through consideration of recent case law, and via the lens of Monckton-Smith’s eight stages
to femicide. A risk assessment is utilised to demonstrate the extent to which victims of coer-
cive controlling behaviour have their capacity for action delimited, and how this should inform
deliberations in cases where the coercively controlled individual kills in response. A novel and
original new template is promulgated for provocation reform predicated de novo on qualifying
triggers of domestic abuse and gross breach of trust and with a part-justificatory –part excusa-
tory standardisation. It is suggested that a new nomenclature and typology is required as extant
Scottish law on provocation is out of step with contemporary social mores, and the law in
England and Wales does not adequately address contextual factors, such as, ethnicity, culture,
religion, sexuality, disability, and migrant status, which impact on a domestic abuse victim’s
capacity for action. It is further propounded that a social entrapment lens, drawing on
Corresponding author:
Nicola Wake, Northumbria University, Newcastle upon Tyne, UK
E-mail: nicola.wake@northumbria.ac.uk
Article
The Journal of Criminal Law
2024, Vol. 88(1) 17–47
© The Author(s) 2024
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DOI: 10.1177/00220183241229945
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initiatives crystallised from New Zealand and Australian academician perspectives, ought to be
enacted as part of urgently needed effective remedial legislation.
Keywords
Loss of control, provocation, sexual infidelity, social entrapment, coercive and controlling
behaviour
Introduction
This article is a directresponse to the Scottish Law Commission’scurrent programme of reform,which asks
whether sexual infidelity provocation should be abolished and replaced witha partial defence similar to the
loss of control defence operating in England and Wales.
1
The reform solutions proffered are also directly
relevant to the Law Commission’s current review of domestic homicidein the context of domestic abuse in
England and Wales.
2
Sexual infidelity provocation (Scotland) is anachronistic and ought to be abolished,
but it should not be replaced by loss of control (England and Wales) which is not fit for purpose and is
currently under review.
3
Cases bearing the hallmarks of male proprietorialness (if I can’t have her, no
one else can!) meet the requirements ofthe defence, whilst victims of abuse who kill their abusivepartners
struggle to attainthe threshold elements which encapsulate masculinetraits of losing control and responding
in ‘justifiable’anger. The loss of control defence and the exclusion of sexual infidelity as a trigger for that
defence were introduced at a time when criminalising coercivecontrol had not been ‘seriously considered’.
4
It is now recognised that whilst killing in response to sexual infidelity might represent an extension of a
pattern of coercive control by the perpetrator of abuse,sexual infidelity may also be used as a formof coer-
cive control designed to denigrate and humiliate the victim and isolate them from their support networks.
5
1. Scottish Law Commission, Discussion Paper on The Mental Element in Homicide (Edinburgh: Scottish Law Commission
2021, No 172) para 10.47. See also, Scottish Law Commission, Eleventh Programme of Law Reform (Edinburgh: Scottish
Law Commission 2023, No 264) paras 2.3, 2.12 and 2.13.
2. Law Commission, Law Commission to Review Defences in Cases of Domestic Homicide (London: Law Commission 2023).
Available at: https://lawcom.gov.uk/law-commission-to-review-defences-in-cases-of-domestic-homicide/ (accessed 11
December 2023).
3. On the problems associated with the partialdefences, see generally, the contributions of authors onloss of control in A Reed, N
Wake and B Simpson (eds),‘Domestic and ComparativePerspectives on Loss of Self-Controland Diminished Responsibilityas
Partial Defences toMurder: A 10-Year Review of the Coroners and Justice Act 2009 Reform Framework’(2021) 72 Northern
Ireland Legal Quarterly. On the point of the sexual infidelity provocation being anachronistic, see also, A Reed and N Wake,
Sexual Infidelity Killings: Contemporary Standardisations and Comparative Stereotypes: Loss of Control and Diminished
Responsibility: Domestic, Comparative and International Perspectives (Farnham: Ashgate Publishing 2011) 115–34. The loss
of control defence has beendescribed as ‘bizarre’; N Padfield, ‘Sentence: New Cases: Particular Offences Manslaughter (Loss
of Control)’Criminal Law Week CLW/21/13/7; C Wells, ‘Provocation: The Case for Abolition’in A Ashworth and B
Mitchell (eds), Rethinking EnglishHomicide Law (Oxford: Oxford UniversityPress 2000) 85–106. For the review, see ibid.
4. The partial defence of loss of control was implemented on 4 October 2010 under The Coroners and Justice Act 2009
(Commencement No. 4 Transitional and Saving Provisions) Order 2010 (SI. 2010/816). The sexual infidelity exclusion is con-
tained within the Coroners and Justice Act 2009, section 55(6)(c). In England and Wales, the offence of coercive and controlling
behaviour was subsequently introduced under the Serious Crimes Act 2015, section 76. Domestic abuse was statutorily defined
in England and Wales under the Domestic Abuse Act 2021. In Martin [2020] EWCA Crim 1798, it was submitted that it was not
until the case of Challen [2019] EWCA Crim 919 that coercive control was ‘seriously considered’by criminal practitioners as a
framework for understanding coercive control’[14].
5. Statutory Guidance on Coercive and Controlling Behaviour (2023). Available at: https://assets.publishing.service.gov.uk/
government/uploads/system/uploads/attachment_data/file/1148945/Controlling_or_Coercive_Behaviour_Statutory_
Guidance_-_final.pdf (accessed 13 September 2023) page 13, para 22. ‘Threats to expose/exposure of sensitive information
(e.g. sexual activity, private sexual photos or films, sexual orientation and/or transgender identity), or making false allegations
to family members, friends, work colleagues, community or others, including via photos or the internet’;Statutory Guidance on
Coercive and Controlling Behaviour (2023) page16 and see the case study example on page 33. For an in depth consideration of
the ways sexual infidelity and allegations thereof may be used as a means of control see, J Monckton-Smith, ‘Intimate Partner
18 The Journal of Criminal Law 88(1)
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