Sexual Infidelity: The Exclusion That Never Was?
| Author | Amanda Clough |
| Published date | 01 October 2012 |
| Date | 01 October 2012 |
| DOI | http://doi.org/10.1350/jcla.2012.76.5.793 |
| Subject Matter | Comment |
COMMENT
Sexual Infidelity: The Exclusion That
Never Was?
Amanda Clough*
Keywords Sexual infidelity; Loss of self-control; Coroners and Justice
Act 2009; Murder; Gender issues
The provisions of the Coroners and Justice Act 2009 have been no
stranger to scrutiny since enactment in regard to the partial defences to
murder, but none more so than the sexual infidelity exclusion that
somehow appeared sitting neatly within s. 55(6)(c). The exclusion
means that when considering if the loss of self-control had a qualifying
trigger, one must disregard things done or said which constituted sexual
infidelity. This must have come as quite a surprise to the Law Commis-
sion, as its report preceding this change to the law eventually formulated
by the government did not mention an exclusion of this kind, and it does
not appear to be a welcomed change. Of course, the reasoning under-
pinning such a bold move is sound; a sole confession of sexual infidelity
and subsequent killing from anger and jealousy should not partially
excuse such actions. The problem is that such circumstances are rare. In
most cases involving an admission of sexual infidelity, there is often
much more to the situation than meets the eye. This comment considers
the repercussions of having this exclusion included in the 2009 Act and
how it will actually affect both genders, not just jealous men.
Why this particular exclusion?
Hansard is a good place to start as to how and why this exclusion came
to be:
We are not trying to legislate away people’s natural and normal upset,
concern and anger about these circumstances, but we do not accept that
that itself ought to lead to reducing a murder finding.1
The point is to increase the standard at which one can act out of anger
before a qualifying trigger will have been met, with particular regard to
male killers acting on the notion of ownership of their partners.2With
this is mind, the language used is bound to cause a host of problems.
Reed and Wake described ‘interpretational difficulties’3which would be
* PhD Candidate, University of Northumbria; e-mail: amandaclough@hotmail.com.
1Hansard, HC, Public Bill Committee, Maria Eagle, 9 March 2009, col. 440.
2 See A. Ashworth, ‘Homicide: Coroners and Justice Act 2009 s.54—Loss of
Control—Qualifying Trigger’ [2012] Crim LR 539 at 543 for a good discussion on
this point.
3 A. Reed and N. Wake, ‘Sexual Infidelity Killings: Contemporary Standardisations
and Comparative Stereotypes’ in A. Reed and M. Bohlander (eds), Loss of Control
and Diminished Responsibility: Domestic, Comparative and International Perspectives
(Ashgate Publishing: London, 2011) 117.
382 The Journal of Criminal Law (2012) 76 JCL 382–388
doi:10.1350/jcla.2012.76.5.793
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