Domestic violence: Change in sentencing guidelines a step forward

The government has finally issued new guidelines to judges and courts
on sentencing for manslaughter. The guidelines should lead to better and
more consistent judgements of when murder can be commuted to
manslaughter and remove the worst anomalies in the previous system.

Eleanor Donne, National chair, Campaign Against Domestic Violence (CADV)

This follows the Law Commission’s review of Defences to Murder, which
made particular reference to domestic violence. This was both in terms
of the large numbers of women killed by their partners (two per week on
average) and how the law treats women who have killed their partners,
having suffered in many cases years of abuse from them.

The new guidelines don’t change the law (1957 Homicide Act) but
effectively define what courts should (and shouldn’t) take into account
to reduce a charge from murder to manslaughter and to decide the length
of sentence for manslaughter.

For the first time, previous experience of abuse and/or domestic
violence is outlined specifically as a mitigating factor and the
guidelines make it clear that evidence of infidelity should not be seen
as a high provocation.

Traditionally, sentences for (mostly) men who kill out of jealous
rage have been light, but under new sentencing guidelines the experience
of violence or fear of violence is more of a defence than anger or
sexual jealousy alone. This is to be welcomed but it remains to be seen
how well the rules are implemented by judges. Funding should be made
available to train judges, barristers and all court staff on issues
relating to domestic violence.

The Campaign Against Domestic Violence (CADV), formed by Socialist
Party members (then known as Militant Labour) in 1991, has long called
for changes in the law on manslaughter/defences to murder and welcomes
these guidelines as a step forward.

Unequal treatment

The catalyst for our wider campaign on domestic violence was the
unequal treatment of two people who had killed their partners. One,
Joseph McGrail, walked free from court, having successfully used the
defence that his wife had ‘nagged’ him and he had ‘snapped’. The other,
Sarah Thornton, suffered violence and abuse throughout her marriage but
lost her appeal against a life sentence for murder. She was eventually
released after a widespread campaign, proving that even judges are not
immune from changing social attitudes.

It is rare for a woman to kill her partner, but of the small numbers
that do, the majority have suffered longstanding and often extreme
violence at the hands of that partner. Yet, the laws on self-defence and
provocation (to reduce a charge from murder to manslaughter) have been
woefully inadequate for women in this position. They are based
historically on men’s general behaviour and conditioning, requiring you
to show sudden anger, temporary loss of control and the use of
‘reasonable force’.

This has made it very difficult for even the most well-meaning
lawyers to build a case for a woman who may have acted after the ‘heat
of the moment’ because she was physically smaller, not conditioned to
fight back or terrified rather than angry. Women often had to rely on a
plea of ‘diminished responsibility’, placing all the emphasis on their
personality and mental state.

We would hope that the new guidelines make it easier for a woman to
argue that she acted in self-defence or under provocation, which implies
some acceptance from society for her actions.

Little protection

In spite of campaigning and lobbying by ourselves and by other
groups, as well as many in the legal profession, the government have
been very reluctant to address these archaic laws. Sadly, although some
women have been released after appeal or re-trial many more will have
been given life sentences in the time it has taken for the Home Office
to issue these new guidelines. We are calling on the government to carry
out a thorough review of all murder cases where domestic violence has
been a factor.

Killing your violent partner is obviously a desperate act and one
which a very small number of women take if they feel there is absolutely
no alternative. Statistically a woman will be hit around 35 times before
she goes to the police and is even more at risk of violence and being
killed after she has left her partner. Many feel justifiably that the
police and the courts do not offer them proper protection.

Changing laws is important but it is just as vital to campaign to
ensure that practical and legal solutions are not just there on paper
but in reality. Resources are necessary, such as outreach advice
centres, more refuges and safe houses, training for police and the
courts, affordable housing and decent wages and benefits so that women
do not face a ‘choice’ of living in fear of violence or poverty and
social exclusion.