Contesting Femicide

Feminism and the Power of Law Revisited

Adrian Howe, Daniela Alaattinoğlu

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351068024
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Focusing on femicide, this book provides a contemporary re-evaluation of Carol Smart's innovative approach to the law question as first outlined in her ground-breaking book, Feminism and the Power of Law (Routledge 1989). Smart advocated turning to the legal domain not so much for demanding law reforms as construing it as a site on which to contest gender and more particularly, gendered constructions of women's experiences. Over the last 30 to 40 years, feminist law scholars and activists have launched scathing trans-jurisdictional critiques of the operation of provocation defences in hundreds of femicide cases. The evidence unearthed by feminist scholars that these defences operate in profoundly sexed ways is unequivocal. Accordingly, femicide cases have become critically important sites for feminist engagement and intervention across numerous jurisdictions. Exploring an area of criminal law that was not one of Smart's own focal concerns, this book both honours and extends Smart's work by approaching femicide as a site of engagement and counter-discourse that calls into question hegemonic representations of gendered relationships. Femicide cases thus provide a way to continue the endlessly valuable discursive work Smart advocated and practised in other fields of law: both in articulating alternative accounts of gendered relationships and in challenging law's power to disqualify women's experiences of violence while privileging men's feelings and rights.

Part 1
Criminal law reform case studies

1
Provocation by sexual infidelity – diminishing returns?

Adrian Howe

Introduction

Carol Smart’s warning not to put too much faith in law and law reform notwithstanding, feminist legal scholars and activists have continued to invest time in campaigns to reform the law of murder that commenced before the publication of Feminism and the Power of Law. Highlighting the differential treatment of men and women facing murder charges in intimate partner homicides, they have fought for changes that ensure defences operate more equitably. In Anglo-phone jurisdictions reformers have focused predominantly on the operation of the partial defence of provocation. Opinions differ as to what form reforms should take. Some call for provocation to be retained but reformed to take account of the different circumstances in which women kill, others for an expanded understanding of self-defence. By contrast, those focusing on intimate partner femicide cases advocate limiting or even abolishing victim-blaming provocation defences outright. After decades of campaigning, abolitionists have had some success. As discussed in Chapter 2, the provocation defence has been abolished in several Australian jurisdictions. In others it has been severely restricted, for example, in England and Wales where reformers took the unusual step of abolishing provocation as a defence but replacing it with a loss of control defence that expressly excludes sexual infidelity as a trigger for loss of control. Leading the reform movement’s challenge to what she characterised as ‘our own version of honour killing’, Solicitor General Harriet Harman explained why they decided on this particular course:

It is a terrible thing to lose a sister or a daughter, but to then have her killer blame her and say he is the victim of her infidelity is totally unacceptable. The relatives say ‘he got away with murder’ and they’re right.¹

The reformers were determined to stop these killers getting away with murder.

I have discussed this controversial reform and the furor it generated in legal circles elsewhere.² This chapter provides an analysis of post-reform intimate partner femicides committed in England and Wales between 2012 and 2016. What has become of the traditional provocation by sexual infidelity narrative that Englishmen have resorted to for centuries? How successful has the reform banning that excusatory tale been? Are men still getting away with murder? Reading law as Smart advocated as a discursive field, the chapter celebrates once again her conviction that for all the difficulties it raises for feminists, ‘law, understood in its widest meaning’, remains ‘one of the most important sites of engagement and counter-discourse’.³ The law of murder, not one of Smart’s focal concerns, nevertheless provides golden opportunities for conceptualising law as a discursive site of engagement and for pursuing a feminist law reform agenda – one aimed at revolutionising the law of murder.

Contesting provocation by sexual infidelity

Over the centuries English courts have waxed and waned in their approach to wife-killing – now intimate partner femicide – clamping down heavily on defendants in some periods, showing mercy in others.⁴ But what has not been fully recognised is that the Homicide Act 1957’s expansion of the provocation defence to include provocation by the victim’s words or deeds ushered in a golden age for wife-killers. Since then, blaming ‘nagging and shagging’ women for provoking their own deaths has usually guaranteed an acquittal of murder and a conviction for the lesser offence of manslaughter.

But not always. In one early twenty-first-century case, a man killed his 72-year-old wife with a weighted sock he had packed ‘by accident’ on their first wedding anniversary. He claimed he had ‘exploded’ when she told him she had ‘feelings’ for a former partner but was found guilty of murder by majority verdict.⁵ Another man claiming provocation had recorded his estranged wife having sex with another man. Accidently leaving the dictaphone on, he recorded the fatal attack and his last words to his wife: ‘you are the weakest link – goodbye’. After six hours of deliberation, the jury unanimously found him guilty of murder.⁶ Contrast his fate with that of a man who had smashed his wife’s skull, inflicting more than 70 injuries, after she provoked him, he said, by taunting him about an affair with a colleague.⁷ The jury took only three and a half hours to clear him of murder. He was sentenced to six years for manslaughter. It was, however, another widely publicised case that galvanised the reform movement, setting it on the path of abolishing sexual infidelity as excuse for murder.

The Humes case and its contentious aftermath has been told elsewhere.⁸ Suffice it to say that in December 2001, a man described by the court as an ‘overworked’ solicitor, knifed his wife to death in front of their four children. He found himself ‘in a red mist’ and had ‘lost it totally’ on learning that Maddie Humes wanted to leave him for another man.⁹ Or so he said. There was no trial, the prosecution having accepted his plea of guilty to manslaughter on the basis of provocation. He received a seven-year sentence, leaving the victim’s family furious that he was seen as the victim while ‘Maddie wasn’t heard at all’.¹⁰ In December 2002, the Attorney General appealed against Humes’ sentence and two others on the grounds that it was unduly lenient. In one a man had killed a woman who had left him, the court noting he had found this ‘difficult to accept’. He ‘just boiled over’, fell into a ‘red haze’ and choked her to death. Acquitted of murder, he was sentenced to four years imprisonment for manslaughter. The Court of Appeal declined to interfere in any of the sentences. It was unmoved even by argument that sentences were much longer in attempted murder cases than in cases of manslaughter by reason of provocation. As the court explained this anomaly, ‘certain assumptions’ had to be made in the offender’s favour in provocation cases, namely, that the loss of control was reasonable and that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the defendant’s offence from murder to manslaughter.¹¹ Being distressed by a woman who discloses, as Maddie Humes allegedly had, that she had been unfaithful and that she wanted to leave the marriage met this test.

It was time for legislative action. In the face of strenuous opposition from the judiciary, the House of Lords and a wide cross section of the legal fraternity, the reform bill abolishing provocation by infidelity as a defence to murder was finally passed. Set out in sections 54–56 of the Coroners and Justice Act 2009, the new defence of loss of control came into force in October 2010.¹² Fast track now to the 2012 case of Clinton, conjoined appeals by three men convicted of murdering wives who wanted to leave them and the first post-reform femicide cases to come before the Court of Appeal. Defying the reformers, the court unanimously determined that ‘infidelity’ – broadly construed to encompass relationship breakdown – may properly be taken into consideration for the purposes of the new partial defence of loss of control when such behaviour was ‘integral to the facts as a whole’.¹³ So how has this panned out in post-Clinton cases?

From manslaughter to murder?

This chapter provides an analysis, based exclusively on newspaper reports, of intimate partner femicides committed in England and Wales over the five-year period from January 1 2012 to December 31 2016. The findings are drawn from a wider study of media reports of 400 cases identified from Karen Ingala Smith’s ‘Counting Dead Women’ lists, all compiled from newspaper reports, of over 680 men ‘known or suspected’ to have killed women in the UK over that period.¹⁴ Confining the analysis to men who faced trial in the reform jurisdiction of England and Wales, I identified 317 defendants who were charged with murder, 240 (75 per cent) of whom pleaded guilty to that offence or were found guilty by a jury.¹⁵ Their ages ranged from 17 to 85 years, their victims’ from 15 to 87 years. Many victims are named here by way of memorialising their lives. Their killers are not. Who they are, whatever their class, race and ethnic identity is immaterial to an analysis of law’s discursive constitution – as it is reported in the media – of intimate partner femicide today. What matters is how killers and courts are putting its perpetrators, victims and excusatory context into discourse in the post-reform age.

Ninety defendants admitted murder from the start or did so when it became clear during the trial that they had no viable defence. Their victims included Leslie Caile, stabbed to death by a partner plagued by an unfounded suspicion that she was having an affair and Christine Baker who was throttled by her husband when he discovered her infidelity. Seventeen-year-old Sophie Smith, killed by her 18-year-old boyfriend who believed she had cheated on him, was subjected to a four-hour beating to elicit a false confession. Her injuries were likened to those sustained in a serious road crash.¹⁶ What immediately becomes clear from the guilty pleas is not only that allegations of sexual infidelity are losing their excusatory force, but that these ‘red mist’ cases can now be more readily identified as departure cases – where the victim was estranged, in the process of leaving a relationship or seeking a divorce. Jade Riley-Ward was stabbed 83 times with four different knives by a jealous boyfriend. Her text message saying she ‘wanted space’ convinced him she was having an affair.¹⁷ Kerry Power’s estranged partner strangled her when she rejected his demands for a reconciliation. Lisa Winn’s estranged husband could not accept his 25-year marriage was over: ‘he couldn’t face the thought of her having a life without him’.¹⁸ Helen Lancaster’s husband was angry she was having an affair and had sent him divorce papers. Jackie Abbott’s husband launched a ferocious attack when she decided to end their relationship. Sarah Pollock was strangled by her former partner who scrawled ‘that’s the price you pay for having four affairs’ on the wall of her flat when she started a new relationship and tried to end all contact with him.¹⁹ Unable to accept her decision to end their relationship and jealous of her new one, Sally Campion’s former boyfriend used a claw hammer to inflict 41 separate injuries on her at her home. Sentencing him to life with a 22-year minimum term, the judge said he was ‘firmly of the view’ that the killer posed ‘a very great danger to women with whom you may ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on contributors
• Preface
• Acknowledgments
• Introduction
• PART 1 Criminal law reform case studies
• PART 2 Proliferating sites of feminist legal intervention
• Epilogue
• Index