Belated Reforms

As an expat from the so-called Land of the Free (another nice example for distinguishing names from descriptions), I mostly feel pretty good about living in the UK. But then I learn of the reforms being contemplated to murder law. The reforms themselves are thoroughly good– not allowing one to get away with light charges for murdering one’s partner by claiming “provocation” (where this means things like nagging, teasing, or having an affair); and allowing victims of domestic violence who kill their abusers to claim self-defense. (Note that being beat up repeatedly does not count as provocation.) But oh, how sad that these reforms are yet to be made. (In the US, I assume, some states are worse and some states better than this.)

6 thoughts on “Belated Reforms

  1. It’s highly variable in the US. The closest we’ve had to what the automatic “Provocation” thing sounds like is that a couple states have at least in the past allowed men to claim Involuntary Manslaughter as a matter of law (meaning they don’t have to prove mental state) if they kill their wife or her lover when they walk in on them together. Where this was true, it was from case law, rather than statute.

    However, mental state is relevant when you’re trying to decide how serious a crime a killing is under US and UK law — it’s the main way we classify them in the US. Anyone can try to use the idea that they were provoked to argue for something less than First-Degree Murder. The idea isn’t that they were justified, but that they were in a state of extreme agitation and thus not as culpable as someone who kills in cold blood.

    The issue of mental state has, in fact, been used to argue that a victim of domestic violence shouldn’t go down for Murder One for killing her husband while he was asleep. Sometimes it has worked, sometimes it hasn’t.

  2. Thanks, J-Bro! I’d been wondering about whether being beaten up repeatedly had ever been considered provocation.

  3. I can’t find a general article on it quickly (and I’m pressed for time), but I think you’ll find the following interesting. It’s a writeup by a defense lawyer giving tactical advice on how to use the “Battered Woman’s Syndrome” defense:

    http://www.hwylaw.com/CM/Articles/Articles73.asp

    Key point:

    “Your defense is not BWS. Rather, your defense is and always will be self-defense. You must make this clear at all times. BWS is worth, at most, a click down from perhaps murder one to murder two. Self-defense is what wins the case. Even if your client killed her abuser while he was asleep, you must show that she was deathly afraid of him at the time.”

  4. Thanks! It seems to me very good to focus on self-defense, which puts the focus squarely on what the abuser is doing to the abused.

  5. Even with a focus on self-defense, the question isn’t simple. The classical construct of self-defense required the person to be in immediate and reasonable fear, such that the violent act was the only thing a reasonable person could do to protect themselves. If the person had the option of running or walking away instead, it wouldn’t have been considered self-defense. Killing another person while they slept would never have met the classical definition of self-defense, because you weren’t under immediate threat from them, and you could just walk away while they’re asleep.

    You’ll note the deliberate non-gendered language up there: the key is that it was really the “reasonable man” standard, and more than that, the “reasonable, mentally healthy man.” The big leap in recent times has been the realization that sometimes it’s self-defense even if some reasonable people could have walked away.

    I don’t know how familiar you are with this general line of legal scholarship, but it comes up in contexts other than self-defense. A man was charged with rape because he drove a woman to a horrible part of Baltimore in the middle of the night and told her to either have sex with him or get out of the car. She did, and then filed rape charges. The rape law in MD used the “reasonable person” standard in determining whether a threat of violence was sufficient to constitute rape. For example “have sex with me or I’ll yell at you” wouldn’t have counted, “have sex with me or I’ll fire you” wouldn’t qualify because it’s not violent, and “have sex with me or I’ll shoot you with this gun” would have been clearly within scope. The upshot was that most men wouldn’t have considered that a sufficient threat to trigger the law, but most women would — it was that bad a neighborhood. The courts actually got it.

  6. Many thanks for that really good example, J-Bro. I’ve done some reading about reasonable man/person/woman standards in law, but never come across that one.

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