Partial Defences to Murder – January 2004

DOMESTIC VIOLENCE:

Research and the Clinical Sample Fallacy:

Research conducted into domestic violence over the last thirty years can be said to fall into to two different methodological approaches (Straus (1993)(3)). The first approach has focused exclusively on violence and abuse perpetrated upon women by male partners. To a considerable extent this has relied on research using generally small convenience samples of women victims obtained through battered women’s refuges. An alternative research paradigm has investigated conflict between male-female dyads by undertaking surveys which attempted to elucidate what assaults, etc. men and women have either made upon their partners or suffered from their partners.

Whilst some of this research has been conducted upon convenience samples of university students about their dating relationships, much has also been conducted upon larger scale regionally or nationally representative samples. This research has shown that both women and men admit making assaults on their intimate partners as well as
suffering assaults from their partners (see below). Significantly in these studies, women identify that they have assaulted male partners who they identify had not assaulted them.

The Evidence of Sex Neutral Studies:

The most comprehensive study of domestic violence in couple relationships in England and Wales was carried out in 1995 as a supplement to the 1996 British Crime Survey. This was based on detailed interviews with some 10,000 men and women between the ages of 16 and 59 using a self-completion questionnaire. The results were published under Home Office Research Study 191 in January 1999(15) and confirmed a similar pattern of almost equal numerical culpability between partners in couple relationships, as the other sex-neutral studies have consistently all revealed. Curiously, the Consultation Paper makes no reference to this important study.

Study 191 revealed that in the 12 months preceding the interviews, equal proportions of men and women (4.2%) reported having suffered physical assault from a partner. In the longer term (over a lifetime), 23% of women and 15% of men reported suffering physical assault by a partner, a long-term proportion of male victims of 40%. One third of those injured and one quarter of chronic victims were male.

BATTERED WOMAN SYNDROME:

It was out of the initial refuge based studies of battered women that Leonore Walker promoted the idea of the ‘Battered Woman Syndrome’. The relatively uncritical manner in which the ‘syndrome’ is accepted as having scientific validity and rigour in the Consultation Paper is a matter of major concern. Although there is a section of comment which purports to be critical and which identifies that many criticisms of the Battered Woman Syndrome as proposed by Walker have been made, there is little to suggest such critiques are being examined seriously, rather than just being referred to in passing. For instance, within the academic legal literature on the topic that should be known to the authors of the Consultation Paper, is a paper by Faigman and Wright titled The Battered Woman Syndrome in the Age of Science (Faigman and Wright (1997)(44)).

This paper exposes the paucity of the scientific and academic merit of Walker’s work within the framework of the use of the Battered Woman Syndrome and its application to North American legal cases. The opening sentence of this review paper is the starkest illustration as to why the authors of the Consultation Paper should not only have read and quoted this paper, but exercise great caution in their deliberations.

Further concern about the methodology used in many studies based on select samples from women’s refuges, including those by Walker referred to in the Consultation Paper, has also prompted an eminent American professor of philosophy, Christina Hoff-Sommers, to write in her book Who Stole Feminism (1995) (5), in the chapter on domestic violence entitled ‘Noble Lies’, the following:

“In examining research on battery, one sees that respected medical periodicals uncritically indulge the feminists in their inflationary tendencies. It is hard to avoid the impression that the medical journals have dropped their usual standards when reporting the findings of the battery studies. It is pretty clear that studies of this poor calibre on some other subject of medical interest and importance would either not be reported or be reported with many caveats. To my mind, giving research on ‘women’s topics’ abnormal latitude is patronizingly sexist.” (See pp 202-203).

We advance that a balanced and scholarly investigation by the Law Commission, upon which crucial recommendations might be made, cannot ignore such criticism nor the work of others who have made contributions to understanding the situation of battered
women or battered men.

PARTIAL DEFENCES TO MURDER:

Similarly, arguments are developed that relate to the physical imbalance between men and women and used in relation to the plight of women who kill. Clearly, on average men ar bigger and stronger than women, although in any one particular dyad it is perfectly possible for the female partner to be bigger and stronger than her male partner. However, whilst sympathy must go to the woman beaten by her bigger and stronger male partner, it does not necessarily follow that she is helpless in this situation, or that a woman could not be beaten and abused by a smaller and weaker male.

Situations can also arise in which a man can be beaten and abused by a weaker and smaller female partner and a man or woman in a same-sex relationship can be beaten and abused by a physically smaller and weaker partner. It is an individuals propensity to use violence as an inter-relational strategy that is surely key, not just size and strength or factors such as sex or sexual orientation.

The problem is that arguments developed only within the stereotypical remit of sole male-to-female violence may create absurdities which defy logic as soon as the broader picture of domestic violence as an equal opportunity destroyer is considered. By virtue of apparently accepting the stereotypical position of women being the only victims of domestic violence, the Consultation Paper is obliged to confine its discussion in Part X within a narrow focus that increasing numbers of members of the public are aware is erroneous and illogical.

Similarly, arguments are developed that relate to the physical imbalance between men and women and used in relation to the plight of women who kill. Clearly, on average men are bigger and stronger than women, although in any one particular dyad it is perfectly possible for the female partner to be bigger and stronger than her male partner. However, whilst sympathy must go to the woman beaten by her bigger and stronger male partner, it does not necessarily follow that she is helpless in this situation, or that a woman could not be beaten and abused by a smaller and weaker male.

Situations can also arise in which a man can be beaten and abused by a weaker and smaller female partner and a man or woman in a same-sex relationship can be beaten and abused by a physically smaller and weaker partner. It is an individuals propensity to use violence as an inter-relational strategy that is surely key, not just size and strength or factors such as sex or sexual orientation.

Research has shown, as discussed above, the diversity of assaults and abuse within relationships whereby, even when considering just the situation of women in heterosexual relationships, there is a complexity that has bearing upon the deliberations concerning partial defences to domestic murder.

The research gives ample evidence, including that provided by the answers of women themselves, for scenarios other than just sole male-on-female assaults. Thus, sole female-on male victimisation; female initiation of assaults in bi-directional assaultive couples; females using severe assaults upon males who have assaulted their female partner using only minor levels of assault; denial of self-defence as the reason for female assaults upon male partners in approximately 80% or more of cases; and admitted falsification of claims of self-defence in a proportion of women initially claiming to have acted in self-defence; all indicate a complexity of dynamic within abusive relations which defy simplistic ‘all- embracing’ assumptions.

There is already evidence within both family law and criminal law that some women, falsely claiming self-defence as a motive for their violence, are able to manipulate the legal process trading upon the prejudice that exists against male victims.

“I saw Austin once and he was cut down the side of his face from his ear downwards … She
broke his nose once and he was so ashamed he told everyone at work he’d been mugged …
She was bragging about it and thought it was great a girl could do that to a man.”

Sister of Austin White, who was stabbed through the heart and left to die on the floor by his girlfriend. (as reported by Su Pennington, Independent on Sunday, 29th November 1996).

Thus, from the perspective of this submission, it is not deemed necessary to comment on any of the particular legal options relating to domestic homicide considered by the Consultation Paper. The options derive ultimately from the perspective of the assumptions about domestic violence that underpin them and it is these assumptions that are challenged in this submission. The key assumption challenged is that it is only heterosexual women who are victimised or who are so overwhelmingly victimised that others do not need consideration.

If any options for change are seriously considered, therefore, it is suggested that, for the benefit of the Law itself, these should be viewed in terms of their use independent of the sex or sexual orientation of those accused and those killed.

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