Vera Baird
Domestic violence
Vera Baird (Redcar): The subject of the debate is battered women who kill. A few years ago the headline court cases of Sara Thornton and Emma Humphreys brought these women and their predicament to the public's attention. They were long-term sufferers from domestic violence who, in the end, killed their violent partners. Before their cases, the jurisprudence of the murder made little allowance for the effects of battering on such women.
In a majority of the 20 or so cases that come before the courts every year, the women are convicted of murder. They are convicted because they fit badly into the principal defence of self-defence, which has developed in the law with men - the majority of violent criminals - as the model. Classically, a case might involve a woman with no convictions, who would probably never harm anyone in other circumstances, but ends up a killer. The husband may often appear a nice, charming man, but is all too frequently drunk. He is sorry when he has been violent and promises to change; she believes it, but blames herself because she cannot make him want to change enough. She is economically dependent on him and if she left, her children would become part of a poor, emotionally disadvantaged one-parent family - so she stays. The men keep telling the women that they cannot leave and the women become convinced of it.
The police, the Crown Prosecution Service and others know that a woman in these circumstances may typically be assaulted 35 times before she seeks any help. When she does, the man sees it as the first step towards her leaving him, and it becomes the most dangerous time for the woman. Many women who leave partners in those circumstances have sometimes been followed and forced to return, and they often continue to be intimidated long after leaving. The need for secrecy about the location of refuges makes the dangers all too clear. It is difficult to disappear: they will have friends in common and he will have the right of access to the children.
Let us examine the problem from the male point of view. Almost half the total number of women killed in England and Wales are killed by a partner or ex-partner, usually when they are about to leave or just after they have left. In contrast, only between 6 and 8 per cent. of men killed in England and Wales are killed by their female partners.
Sometimes the circumstances do lead women to kill. Characteristically, the woman kills the man with a single blow, often with a kitchen knife, when she is under attack from his fists. She will be charged with murder, which is unlawfully killing someone, intending to kill them or to cause them serious harm. Four defences are possible, but the only ground for an acquittal is self-defence: the other three would reduce the conviction to manslaughter. Self-defence is the main defence, but it is the one that women fit least well into.
Self-defence is lawful when someone is attacked and he can use such force as is reasonably necessary to defend himself, but the force must be proportionate to the attack and it must stop when the attack is over. The measure of proportionality is seen through his eyes, so it has a subjective aspect. More than 90 per cent. of violent offences tried by the courts are committed by men. Unsurprisingly, defences evolved in the courts to deal with male responses. Self-defence, with its requirement for proportionality, is effectively made for two reasonably physically matched men fighting. In that sense it is fair, allowing the attacked man to defend himself until he feels safe from further attack. However, is it fair to women who are attacked and use self-defence, especially to women who are victims of repeated domestic violence?
Women's situations and responses are different from men's. Women see themselves as physiologically somewhat fragile. They are not used to fighting, or to feeling the need to fight back, and they are less likely to have had training or practice in measuring force to make it proportionate in a fight. On average - I am the exception that proves the rule - women are smaller than men, and also weaker.
Women say in evidence that if they defend themselves using proportionate force to a man, not only does that not stop the attack, but it provokes worse violence. In the case of domestic violence, if a man has attacked a woman before - perhaps not in a life-threatening way, but inflicting pain, cuts and bruises and causing discomfort and depression - the woman will be afraid of provoking more of the same. If she has to fight back, therefore, she will not be calm and will panic too much to be able to measure a response. Self-defence entitles the woman to defend herself until the attack stops, but to do that she will have to stop the attacker completely. She will, at least, have to make him unconscious, and to do that she will need a weapon. We are now moving away from a proportionate response to his fists.
Many women say that they use a weapon to put the man down and thereby stop the attack, as an observer might say. However, they are gripped with the certainty that he will get up and attack them again straight away. In the middle of an attack when the man is down, they feel that they will feel safe only by hitting him more to ensure that he stays down. That is not convenient testimony, but it is what women have told psychiatrists, many years after their convictions, in anonymous surveys that have nothing to do with getting an appeal or retrying the issues.
The need to go beyond proportionate force to stop an attack only takes a woman to the point where a man is entitled to go in law - to defend herself until the attack stops. There is a subjective element to the matter, which must be looked at from behind her eyes. She does only what a man is entitled to do, but in her case it involves disproportionate force and so takes her outside the realm of self-defence.
Women do not fit the model of self-defence as evolved by the courts. That is not surprising, because violence has been male territory. The mismatch with self-defence goes a step further. There are cases in which self-defence is coupled with what seems to be delay. A man's previous act of violence is over and he is asleep, but the woman is sure that when he wakes up he will attack her again. She is convinced that she cannot leave, and feels like a hostage, waiting for him to wake up and torture her. If she strikes out at that point, it might seem even further from the male model of self-defence.
In trials in Canada, expert evidence is allowed to explain that mismatch, and the processes through which the woman goes. In the United States, the Washington state Supreme Court has accepted that any instruction to a jury that limits force to proportionate self-defence for a woman is not giving her the equal protection of the law. In England, neither of those things are the case. The jurisprudence is male. Without expert advice, women's reactions are not understood and may seem counter-intuitive. Consequently, self-defence is a poor defence option for a woman facing a murder trial. Its biggest disadvantage is that if that defence fails, she will be convicted of murder and receive a mandatory life sentence.
Women should, but dare not, invoke self-defence, and settle for a partial defence such as provocation, reducing their conviction to manslaughter. Consequently, the understanding of women's different reactions, of the kind that I have outlined that have been accepted in Canada and the United States, are not being put before English judges and juries because women dare not do it. No attempt can therefore be made to develop a female model of self-defence. That can be remedied only by a review of cases of battered women who killed, and that issue should be looked at carefully in the domestic violence review that the Government will carry out.
Unlike self-defence, the defence of provocation - the partial defence to murder - has adapted to women's needs. Provocation reduces murder to manslaughter if the killing is done during a sudden and temporary loss of self-control caused by things said or done that would also make a reasonable person lose their self-control. The courts are increasingly starting to understand the way in which women react to repeated provocative conduct, which is what domestic violence turns out to be. In the famous case of Emma Humphreys, the whole history of violence against her by her pimp was put in, to show her loss of self-control when she finally stabbed him in its fullest context.
That is good for future cases, but it raises a second problem. When case law moves the law on, it is not so well known as when a new statute is passed. Although the cases are famous, what they say is not. It is likely that many women before Emma Humphreys would have been convicted only of manslaughter, had the full extent of the provocation against them been included. The legal rule is that once the law has been declared, and once, as in this case, cumulative provocation can be brought into evidence, it is deemed always to have been the law.
A number of individuals have emerged from prison - usually in response to publicity - to appeal and to benefit from the changes in the law brought in by the Court of Appeal. They were convicted before cumulative provocation was allowed. They have appealed since, and their appeals have been allowed. Diana Butler from Yorkshire, Josephine Smith from East Anglia and Donna Tinker from the north-east are three who have appealed and benefited from that law change. They had the help of campaigning groups such as Justice for Women and Southall Black Sisters, but neither of those groups, nor any other, has the resources to identify and to prepare the appeals that must be outstanding for other women on a case-by-case basis. It is likely that there is a group of women scattered around the prison estate, serving sentences for murder, who were convicted before the law changed and who would now only be convicted of manslaughter. They are now entitled to an appeal and do not realise it. This is an unusual position; indeed, I imagine that it is unique.
There are particular difficulties in relation to domestic violence victims. They do not readily talk about what they have suffered, and so they are even less likely to respond to the publicity and to come out; nor is it known how many women are serving sentences in England and Wales for the killing of violent male partners. North American research finds that between 70 and 80 per cent. of women serving murder sentences are serving them for the murder of their partner as a result of domestic violence. The English academic Horder sees no reason to think that the proportion would be significantly different here. I have asked parliamentary questions to try to find out how many women who have killed their partners are in prison, but no record of that is kept. The Home Office's best estimate is that 14 women are in prison for the murder of violent male partners. At the time of the debate, however, the Justice For Women group is supporting 19 women who are in exactly that situation, so there is clearly a significant underestimate.
Miscarriages of justice, as some of those cases may be, should go to the Criminal Cases Review Commission. Appearing before the Select Committee on Home Affairs, the chair of the commission, Sir Frederick Crawford, was asked when he would exercise the commission's power to self-refer, whereby it would not wait for an application, but would consider cases that might be unjust and take them to appeal itself. Sir Frederick said that he would want to exercise his self-referral power on precisely the sort of case to which I have referred, but the commission has never done so. One imagines that it is too over-burdened to self-refer at all. In the case of Josephine Smith, which I mentioned earlier, it took three years from drafting grounds of appeal to the review commission sending it to the Court of Appeal.
What is to be done? Five, 10, 20 or 50 women may be serving life sentences, and perhaps many of them should be released now that the law has changed. They may be mothers. They may not know what they are suffering. I have pointed to two different ways in which I seek help from my right hon. Friend the Minister - two different ways in which the law on murder causes injustice to women victims of domestic violence who snap and kill.
Margaret Moran (Luton, South): I thank my hon. and learned Friend for raising an important subject and eloquently setting out the issues relating to women who are imprisoned for murder following domestic violence. Does she agree that an additional point is that a woman is doubly victimised when she is a victim of murder? A perverse incentive in sentencing means that it is to the perpetrator's benefit to kill the victim of domestic violence, because there will be no victim impact statement and no voice to counter allegations that she had aggravated his anger and thus caused him to murder her. Should not that be taken into account in the domestic violence review, to which my hon. and learned Friend referred?
Vera Baird: I am grateful to my hon. Friend for that important intervention and I agree with her. Further to her point, domestically violent male killers of women have committed frequent criminal offences. Let me put it another way. Women victims of domestic violence who become defendants have had repeated criminal offences committed against them by the perpetrators, against whom they turn. However, many men who kill their partners have had no such experience. Their cause for complaint is that the woman nagged them, or said that she was going off with the gym instructor, as happened in a famous case a short time ago.
It is well known that domestic violence affects one in four women, although battered women who kill are few. If the criminal justice system continues to treat them harshly, that sends out a clear message that the state is not prepared to understand the ramifications of how domestic violence affects women. If women electors are to have confidence in the system, the two features to which I hope I have pointed adequately in this short debate must be changed.
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