Women Who Kill Abusive Men: The Limitations of Loss of Control, Provocation and Self-Defence in England and Wales and Canada

Published date01 April 2023
DOIhttp://doi.org/10.1177/00220183231165719
AuthorSusan SM Edwards,Jennifer Koshan
Date01 April 2023
Women Who Kill Abusive Men:
The Limitations of Loss of Control,
Provocation and Self-Defence in
England and Wales and Canada
Susan SM Edwards
University of Buckingham and Barrister at Red Lion Chambers, UK
Jennifer Koshan
University of Calgary, Canada
Abstract
In England and Wales, the Coroners and Justice Act 2009, (CJA), s. 55(3) introduced into statute
fear of serious violenceas a ground (or a trigger) for loss of control manslaughter. It was
intended to take into account the circumstances of women who in self-preservation kill abusive
and violent intimate partners. Despite this important reform, a woman who defends herself from
a partners abuse and violence in both manslaughter and self-defence pleadings continues to be
assessed with reference to a masculinist interpretation of what is reasonable through the anthro-
pomorphic reasonable man/person,and loss of control still underpins voluntary manslaughter.
In Canada, the homicide provisions in the Criminal Code, RSC 1985, c C-46, were amended in
2012 to reframe the law of self-defence (s. 34) and in 2015 to revise the law of provocation by
which culpable homicide can be reduced to manslaughter (s. 232), with neither amendment
accounting explicitly for the circumstances of women who kill abusive partners. In both jurisdic-
tions despite revisions to the legal construct of loss of control manslaughter(England and
Wales) or the provocation defence (Canada), the common law underpinnings of these defences
and jurorsperceptions of what constitutes or what can trigger loss of controlcontinues to
inform such pleadings whilst the law on self-defence (with its masculinist requirements and inter-
pretation of proportionality and reasonableness) remains largely inaccessible to the abused
woman who defends herself from an intimate partners violence and abuse. This article explores
the legal developments in both jurisdictions and their limitations through an analysis of the sub-
stantive law and recent case law. The number of women who kill violent and abusive partners
and the legal outcomes, the methods used to kill and the ways in which substantive law and
Corresponding authors:
Susan SM Edwards, University of Buckingham Professor in Law, Emeritus, Buckingham, MK18 1EG, UK and Associate Door Tenant
at Red Lion Chambers, London.
Email: susan.edwards@buckingham.ac.uk
Jennifer Koshan, University of Calgary, Professor in Law, Canada.
Email: koshan@ucalgary.ca
Article
The Journal of Criminal Law
2023, Vol. 87(2) 7596
© The Author(s) 2023
Article reuse guidelines:
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DOI: 10.1177/00220183231165719
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legal actors disadvantage those who use a weapon eschewing womens disproportionate size and
strength, are all considered. The article concludes with proposals for further reform.
Keywords
Domestic violence/abuse, intimate partner homicide, battered and abused women who kill,
self-defence, provocation, loss of control
The Extent of Intimate Partner Violence Abuse and Homicide
Women Who Kill England and Wales Recording Intimate Partner Homicide
Womens self-preservatory response to male violence requires a careful consideration of the context of vio-
lence against them. Intimate partner violence recorded by the police in England and Wales for 2021 accounts
for 845,734 domesticabuse-relatedcrimes
1
including violence against the person, sexual offences, criminal
damage and arson. In over three-quartersof these cases, the victimis female. The homicideof female intim-
ate partners accounts for approximately 20% of all homicides annually. For the year ending March 2020,
46% of all adult female homicide victims were killed by an intimate partner (n =81).
2
Between April
2008 and March 2018 (11 years) in England and Wales, 108 men were killed by women who were their
partners/ex-partners. In comparison, nearly eight times as many women (840) were killed by men who
were their partners/ex-partners during the same period.
3
In Edwardsstudy of the Home Ofce
Homicide index for the period April 2011 March2019(8years),440womenwerekilledbymaleintimate
partners. This is the contextual background which may result in women who in self-defensive efforts to
surviveapartners coercion and violence
4
kill intimate partners. Sixty-two women were suspects of the
killing of male intimate partners. (A further six women killed women, of which three were same-sex part-
ners). The 2011 start date was selected in order to analyse the impact of s. 55(3) CJA (in force October 2010)
which in attempting to address the gendered inequity of the former manslaughter/provocation defence intro-
duced fear of serious violence(s. 55(3)) as a ground for loss of controlmanslaughter.
Method of Killing. When women kill male intimate partners the use of a weapon to compensate for their
physical disadvantage has presented as the main obstacle to successful manslaughter and self-defence
pleadings. Method of killing is a signicant factor in the success of a defence to murder and to a man-
slaughter outcome whether involuntary manslaughter (accident/no intent) or voluntary manslaughter
(loss of control s. 54 or s. 55(3) fear of serious violence loss of control) and is an aggravating factor
impacting on sentencing length in both murder and manslaughter convictions (see later Martin). The rela-
tional context is little considered, and body force had been historically regarded as a mitigatory factor and
weapons as an aggravating factor.
1. Domestic abuse prevalence and trends, England and Wales: year ending March 2021. 2. Main points. <https://www.ons.gov.uk/
peoplepopulationandcommunity/crimeandjustice/articles/domesticabuseprevalenceandtrendsenglandandwales/yearendingmarch
2021> accessed 20 May 2022.
2. Homicidein England and Wales: year ending March 2020. See Main point 4, The relationship between victims and suspects. <https://
www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/homicideinenglandandwales/yearendingmarch2020 latest
release > accessed 20 May 2022.
3. Ofce for National Statistics, Homicide in England and Wales: year ending March 2018 (London: Ofce for National Statistics,
2019), Appendix: Tables. See Women Who KillCentre for Womens Justice. <https://www.centreforwomensjustice.org.uk/
women-who-kill> accessed 20 May 2022. See also S Howes, K Williams and H Wistrich, Women who Kill: Why Self-defense
rarely works for women who kill their abuser(2021)] Crim LR 945957.
4. Froman earlier examination of a subset of cases from 2011 to 2016 it was concluded that s. 55(3) was used in very few cases. Of
40 cases, 30 were convicted of murder, three of diminished responsibility and seven of other manslaughter; see SSM Edwards,
Women who kill abusive partners: reviewing the impact of section 55(3) fear of serious violencemanslaughter some empir-
ical ndings(2021) NILQ 72 2 (245).
76 The Journal of Criminal Law 87(2)

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