Battered Women, Startled Householders and Psychological Self-Defence: Anglo-Australian Perspectives

Wake, Nicola

doi:10.1350/jcla.2013.77.5.868

Cited by 5 publications

(5 citation statements)

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“…Compare, for instance, R v Jewell, in which the loss of selfcontrol was held to mean a loss of the ability to act in accordance with considered judgment or loss of normal powers of reasoning,128 with R v Dawes, in which the 'loss of self-control' jury instruction was denied because the defendant had not killed the victim 'in a rage'; he was 'shocked rather than angry'.129 In addition, as Nicola Wake has accurately observed, 'the government's decision to qualify the "fear trigger" with the controversial "loss of self-control" conceptualisation has undermined the doctrinal coherence in the Law Commission's recommendations, rendering the partial defence "unnecessarily complex"'. 130 In sum, the Coroners and Justice Act 2009 has been a significant improvement compared to the state of the law of provocation prior to its enactment. The impressive work conducted by the Law Commission has provided both theoretical and empirical foundations for the law reform.…”

Section: Discussionmentioning

confidence: 99%

Rationales: rejected, imagined and real – provocation, loss of control and extreme mental or emotional disturbance

Bergelson

2021

NILQ

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What makes intentional killing under provocation less reprehensible than murder? The answer to this question determines the rationale for the law; and the choice of the primary rationale – justificatory or excusatory – determines the scope and fundamental features of the partial defence.In this article, I attempt to parse through two reforms – one promulgated by the Model Penal Code 1980 (MPC), the other by the Law Commission for England and Wales – and compare their versions of the defence both to each other and to the ‘loss of self-control’ defence of the Coroners and Justice Act 2009 in the hope of determining and appraising the governing rationales for each version of the defence. I conclude that the largely justificatory defence of provocation developed by the Law Commission (and to a lesser degree the ‘loss of self-control’ defence) is legally and morally preferable to the largely excusatory defence proposed by the MPC.

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Section: Discussionmentioning

confidence: 99%

Rationales: rejected, imagined and real – provocation, loss of control and extreme mental or emotional disturbance

Bergelson

2021

NILQ

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“…Meanwhile, in Scotland, critics have underscored the profound injustice of retaining a ground for provocation based on sexual infidelity (Drury v HMA 2001 SCCR 583), whilst failing to acknowledge the plight of victims of domestic abuse (McDiarmid, 2010(McDiarmid, , 2019. Further, though Challen has opened space for reliance on diminished responsibility, it has also continued to rely on pathologising explanations of what might be argued to be normal reactions to sustained and systemic abuse (Bettinson, 2019;Burton, 2022;Wake, 2013).…”

Section: Violent Resistance Mitigation and Self-defencementioning

confidence: 99%

“…Meanwhile, in England and Wales, similar barriers to reliance on self-defence have long been acknowledged (McColgan, 2000). Howes et al (2021) have highlighted the need for changes in attitude, practice and legal doctrine alike to improve prospects for justice: in particular, they highlight the disparity in current treatment between abused women whose use of apparently disproportionate force (e.g., use of weapons) precludes reliance on the defence and householders who are now legally permitted to use disproportionate force when faced with an intruder, with this assessment based on the circumstances as they believed them to be (see also Wake, 2013).…”

Section: Violent Resistance Mitigation and Self-defencementioning

confidence: 99%

Coercion, Control and Criminal Responsibility: Exploring Professional Responses to Offending and Suicidality in the Context of Domestically Abusive Relationships

Munro,

Bettinson,

Burton

2023

Social & Legal Studies

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Significant strides have been made in the law's recognition of harms arising from domestic abuse. In England and Wales, the Serious Crimes Act 2015, and in Scotland, the Domestic Abuse (Scotland) Act 2018, have supported a more holistic understanding of the dynamics of abuse and the means by which coercion and control are deployed to cement and supplant perpetrators’ violence. In this article, we explore what the introduction of these offences means in other situations where questions regarding the impact of abuse upon victims’ agency arise: specifically, where victims commit an offence that might have been compelled by abusive behaviour or take their own lives in contexts that might indicate perpetrators’ liability for suicide. In particular, drawing on interviews with professionals across both jurisdictions, we highlight the precarity of recognition of the effects of coercive control and the need to engage in more complicated discussions about when and why context matters.

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“…At present, in England and Wales, a defendant claiming self-defence on grounds of a fear of serious violence may revert to a loss of control claim where the initial plea fails. 229 The problem is that the defendant will have to revert from alleging that she was acting reasonably in the Northern Ireland Legal Quarterly 66(2) case of Barnsdale-Quean. 240 The defendant had purchased a rolling pin and chain two weeks prior to the killing.…”

Section: The Via Media : a New Partial Defencementioning

confidence: 99%

‘His home is his castle. And mine is a cage’: a new partial defence for primary victims who kill

Wake

2018

NILQ

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This article provides an in-depth analysis of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 which had the effect of repealing the Australian state of Victoria’s only general ‘partial defence’ of defensive homicide, and replaced the existing statutory self-defence in murder/manslaughter provisions and general common law self-defence rules with a single test. The abolition of defensive homicide means there is now no general ‘partial defence’ to accommodate cases falling short of self-defence. The change is likely to mean that some primary victims will find themselves bereft of a defence. This is the experience in New Zealand where the Family Violence Death Review Committee recently recommended the reintroduction of a partial defence, postabolition of provocation in 2009. Primary victims in New Zealand are being convicted of murder and sentences are double those issued pre-2009. Both jurisdictions require that a new partial defence be introduced, and accordingly, an entirely new defence predicated on a fear of serious violence and several threshold filter mechanisms designed to accommodate the circumstances of primary victims is advanced herein. The proposed framework draws upon earlier recommendations of the Law Commission for England and Wales, and a comprehensive review of the operation of ss 54 and 55 of the Coroners and Justice Act 2009, but the novel framework rejects the paradoxical loss of self-control requirement and sexed normative standard operating within that jurisdiction. The recommendations are complemented by social framework evidence and mandatory jury directions, modelled on the law in Victoria. A novel interlocutory appeal procedure designed to prevent unnecessary appellate court litigation is also outlined. This bespoke model provides an appropriate via media and optimal solution to the problems faced by primary victims in Victoria and New Zealand.

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Battered Women, Startled Householders and Psychological Self-Defence: Anglo-Australian Perspectives

Abstract: This article provides a timely and critical reappraisal of the interconnected, but discrete, doctrines of loss of self-control, under ss 54

Cited by 5 publications

References 1 publication

Rationales: rejected, imagined and real – provocation, loss of control and extreme mental or emotional disturbance

Rationales: rejected, imagined and real – provocation, loss of control and extreme mental or emotional disturbance

Coercion, Control and Criminal Responsibility: Exploring Professional Responses to Offending and Suicidality in the Context of Domestically Abusive Relationships

‘His home is his castle. And mine is a cage’: a new partial defence for primary victims who kill

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