Latest Blogs Locked Up for Killing Your Abuser. Why the Law Does Nothing to Protect Domestic Abuse Victims who Protect Themselves ‘Too Far’. By Rebecca Noble LLB, Aspiring Barrister on the Bar Practice Course with LLM, London, and Accredited Police Station Representative We currently live in a country with laws which perceive domestic abuse victims as mentally ill or cold-blooded killers for killing their abuser after years of prolonged abuse. A country which provides more protection to a homeowner that catches a burglar in their house than a domestic abuse victim who uses self-defence in their own home. A shift in society has seen an influx of extra, amazing support for domestic abuse victims in the past few years, so why does the support stop when they are accused of murdering their abuser? History Historically, women who killed their abuser would be labelled as having Battered Woman Syndrome (“BWS”) which is a term that’s been described as women who overreact to abuse they have received by irrationally killing their abusive partner. It is now positively more accepted that all people irrespective of their identity can be victims of abuse and therefore the term BWS is now finally outdated. However, the cases spoken about in this blog may refer to this term. The case of Kiranjit Ahluwalia stands out as one of the most publicised and powerful BWS cases in history. Ahluwalia was subject to 10 years of chronic abuse from her husband and one evening, after he had threatened to attack her the following morning, she covered him in petrol and set fire to him whilst he was sleeping. He burnt to death. She was sentenced to life in prison for his murder, with the court failing to acknowledge the abuse she had suffered. It was only upon appeal that her abuse was taken into consideration and she was released after 3 years 4 months ** R v Ahluwalia [1992] 4 All ER 889 1997 on the basis that she was suffering from diminished responsibility at the time of the murder. Diminished responsibility is a partial defence to murder which means that the accused is found guilty of the lesser crime of manslaughter because they were suffering from an ‘abnormality of mental functioning’ at the time of the killing. The reason why this is wrong is because it focuses all the attention on how the accused was feeling mentally, deeming them mentally unwell rather than paying any attention to their extensive period of abuse at the hands of their abuser. Although on appeal Ahluwalia was finally released, effectively, she was released because the court deemed her mentally unwell at the time, again, failing to take into account the chronic abuse she suffered whilst looking more at her mental state at the time of the killing. This has been the case for at least 14 more people since 1997. What fails to happen with these people is that the reason for their release is unacknowledged and pushed aside due to high emotions at the possibility of release. No one has ever questioned the reason for their release because, why would you? You would want to get out of prison in any way you can. Since there is no one arguing against the unfair reason for release, the law gets away with letting domestic abuse victims get portrayed as mentally ill, again and again and again! Since 1997, all of these cases have failed to acknowledge abuse as a reason behind the crime, all apart from one. The case of Sally Challen. The Case of Sally Challen and Coercive Control Challen endured horrendous mental abuse from her husband, with his controlling and coercive behaviour, taking control of her life to make her feel extremely dependent on him. Similarly, to Ahluwalia, Challen killed her husband and was sentenced to life in prison but on appeal was released on the grounds of diminished responsibility. Although this case ultimately resulted in the same outcome as she was released because she was deemed mentally unwell, the case opened the court’s eyes towards coercive control from her abuser. In 2015, the offence of coercive control was introduced which made it a crime to use manipulative, extreme psychological and emotional abuse with the aim to protect victims in domestic situations. This offence is currently not permitted to be used as a defence and although the courts in Challen’s case accepted that she was coerced and controlled, there was no modern defence in law for this type of crime. They were therefore forced to mould her case into one that did not fit, projecting her as mentally ill. To put it simply, the law realised she had been controlled and coerced into the untimely killing of her abuser and they acknowledged it, but may as well have said ‘we’re sorry as there’s no law that protects you so we must deem you mentally unwell under diminished responsibility instead’! Whilst victims of domestic abuse are treated this way and are not allowed to use self-defence in their home because it’s against their partner, homeowners are provided with a framework for self-defence to burglars. How can the law justify protecting one group of vulnerable people but not the other? Self-Defence Self-defence can be used to completely clear someone of all charges and can be used in murder cases where the defendant for example, thought the use of force was reasonable and that they feared for their life. If an abuser was about to attack their victim, the victim may fear for their life but because it was in a domestic situation, they are not provided with a self-defence framework, instead they are given a partial defence (manslaughter) which looks at their mental state. Even if they are found guilty under the lesser charge of manslaughter, they will still spend time in prison rather than walking free as self-defence would allow. What Must be Done? I believe a new defence to murder, linking coercive control and self-defence, must be created. A new defence which supports these vulnerable people rather than treat them as cold-blooded killers or mentally ill. This defence is needed to prevent harshly punishing these domestic abuse victims in the way the law continues to do so. This is not a law which upon creation, allows people to aimlessly kill their partners and claim it was justified. It would be a defence which looks subjectively at the ins and outs of the case to come to a fair decision on how the accused should be treated rather than try and fit them into a law that is not designed to protect them. There are currently domestic abuse victims in prison, who due to COVID-19 have not seen their loved ones for months and are being forced to stay in their cell to isolate for 23 ½ hours a day. This new defence is for them. Parliament need to prevent COVID-19 getting in the way of another injustice. They must open their eyes and realise that more needs to be done to protect this vulnerable group of people, and fast! Sources Cases R v Ahluwalia [1992] 4 All ER 889 1997 R v Challen [2019] EWCA Crim 916 Unreported: Farieissia Martin Books Ewing, C. “Battered Women who Kill” (Lexington Books: 1987). Horder, J. Ashworth’s Principle of Criminal Law,(9th edn, Oxford University Press, 2019) Kingsley H and Tibballs, G. (ed), No Way Out: Battered Women Who Kill (Headline Books Publishing, London 1994) Ormerod, D. And Laird, K. Smith, Hogan and Ormerod’s, Text, Cases and Materials on Criminal Law, (12th edn, Oxford University Press, 2017) Stark, E. “Coercive Control: How Men Entrap Women in Personal Life” (OUP, London 2007), 5. Walker, L. EdD. The Battered Woman Syndrome, (4th edn, Springer Publishing Company, 2016) Walker, L. EdD. The Battered Woman Syndrome, (3rd edn, Springer Publishing Company, 2008) Walker, L. The Battered Woman (New York: Harper and Row, 1979), pxv. Journals Ahluwalia, P and Rafferty QC, A. The Criminal Bar Association Of England And Wales “Defences Available For Women Defendants Who Are Victims/Survivors Of Domestic Abuse” (17th November 2017) Bettinson, V. “Aligning Partial Defences to Murder with the Offence of Coercive or Controlling Behaviour” Journal of Criminal Law Volume 83 Issue 1 Edwards, S. “Coercion And Compulsion- Re-Imagining Crimes And Defences” [2016] Criminal Law Review 876, 879. Edwards, S. “Descent into Murder: Provocation’s Structure – The Prognosis for Women Who Kill Men Who Abuse Them.” Journal of Criminal Law. JCL 71 (342) (Vathek Publishing, 2007) McColgan, A. “In Defence of Battered Women who Kill” (1993) 13(4) OJLS 508 at 524 Midson, B. ‘Coercive Control And Criminal Responsibility: Victims Who Kill Their Abusers’( 2016) 27(4) Criminal Law Forum 417, 433. Miles, J. “The Coroners And Justice Act 2009: A Dogs Breakfast Of Homicide Reform” [2009] (Archbold News 8, Legislative Comment.) Wake, N. “Battered Women, Startled Householders and Psychological Self-Defence: Anglo-Australian Perspectives” Journal Of Criminal Law Volume 77 2013 Issue 5 Withey, C. “Loss of control” (2010) 174 JPN 197, 200. Command Papers and Law Commission Reports Law Commission Report Murder, Manslaughter And Infanticide (2006) Law Commission Report Partial Defences to Murder 2003 Law Commission Report, Partial Defences to Murder, (2004) Statues and Statutory Instruments Coroners and Justice Act 2009 Domestic Abuse Bill 2019-2021 Homicide Act 1957 Serious Crime Act 2015 s76 Online Journals Bindmans. “Sally Challen Appeal: A New Defence To Murder?” (28 February 2019) < https://www.bindmans.com/insight/updates/shally-challen-wins-appeal-against-conviction-for-murdering-husband > Fitz-Gibbon, K and Walklate, S. “Why Sally Challen’s Appeal Is Not A Win For Women Victims Of Coercive Control –The Conversation” (2019) <https://theconversation.com/why-sally-challens-appeal-is-not-a-win-for-women-victims-of-coercive-control-112869> Inner Temple Library. “On The Other Side Of The Bench: The Criminal Justice System And Women Who Have Killed In Response To Domestic Abuse”< https://www.innertemplelibrary.org.uk/wp-content/uploads/2020/03/on-the-other-side-of-the-bench.pdf > Websites Justice for Women. ‘Farieissia Martin’ <https://www.justiceforwomen.org.uk/farieissia-martin> Justice for Women. ‘Kiranjit Ahluwalia’ <https://www.justiceforwomen.org.uk/kiranjit-ahluwalia> JJustice for Women. ‘Sally Challen’< https://www.justiceforwomen.org.uk/sally-challen-appeal > Prison Reform Trust. “Domestic Abuse Bill – Legal Protection for Survivors who Offend due to Domestic Abuse” <http://www.prisonreformtrust.org.uk/Portals/0/PRT%20committee%20submission%20DA%20Bill%20new%20clauses%20FINAL.pdf > Prison Reform Trust. “Domestic Abuse Bill – Proposed Changes in the Law for Domestic Abuse Survivors Driven to Offend”<http://www.prisonreformtrust.org.uk/WhatWeDo/Projectsresearch/Women/DomesticAbuse > Rights of Women. ‘Coercive Control and the Law’ <https://rightsofwomen.org.uk/get-information/violence-against-women-and-international-law/coercive-control-and-the-law/ > **Apologies, when this blog was first published we incorrectly cited that Kiranjit Ahluwalia served 9 years in prison, this has now been amended, Kiranjit Ahluwalia was released after 3 years 4 months R v Ahluwalia [1992] 4 All ER 889 1997 on the basis that she was suffering from diminished responsibility at the time of the murder.