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

Abstract

In England and Wales, the Coroners and Justice Act 2009, (CJA), s. 55(3) introduced into statute ‘fear of serious violence’ as 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 partner's 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 anthropomorphic ‘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 jurisdictions 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 jurors’ perceptions of what constitutes or what can trigger ‘loss of control’ continues to inform such pleadings whilst the law on self-defence (with its masculinist requirements and interpretation of proportionality and reasonableness) remains largely inaccessible to the abused woman who defends herself from an intimate partner's violence and abuse. This article explores the legal developments in both jurisdictions and their limitations through an analysis of the substantive 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 legal actors disadvantage those who use a weapon eschewing women's disproportionate size and strength, are all considered. The article concludes with proposals for further reform.