Loss Of Control: Gender Analysis

I will be discussing gender bias in regards to the defence of loss of control. I will be discussing and arguing against the abolition of the loss of control defence and reformation of the law on provocation. Loss of control is a partial defence that can be used if the defendant (D) kills the victim (V) resulting from
“(a) a loss of self-control, (b) the loss of self-control had a qualifying trigger, and (c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D.” –S.54 (1)C&J Act 2009.
This differs from the provocation defence as it does not need to be a result of the direct provocation of V on that specific occasion but can also include …show more content…
Herring states that men could use the defence that their wives ‘nagging’ or goading them constantly, had then provoked them, led them to lose their self control and take their partners lives. . This can be seen in the case of Betambeau(2001) in which D’s wife was goading him over the way he had cut a joint of beef, causing him to lose control and stab and strangle V, resulting in her death. The judge in this case had stated “I accept that your wife was a difficult woman to live with and offered you a fair degree of provocation” this then resulted in D spending 20 months in prison for the offence, in which he was released and sentenced to two year probation. This, under the new loss of control defence, would not allow the defendant to use nagging as a defence as it would not be seen as a “justifiable sense of being wronged”. The old law also denied women suffering from battered woman syndrome (BWS), from using provocation as a defence due to the abuse being long term and not a direct and sudden trigger for the loss of the self-control of the …show more content…
The C&J act 2009 states that provocation doesn’t need to be sudden. In Duffy (1949) the accused was found guilty, when removing her child from the house and proceeding to kill her husband using a hammer and hatchet whilst V was asleep, after mistreatment throughout their marriage. It was stated by Devlin J that the provocation must result in “a sudden and temporary loss of control” in that moment and not thought through. With the new defence of loss of control, women suffering from BWS can use physical and mental abuse by their partners as their trigger for their loss of self-control as it is seen as a ‘slow burn’ effect in which events leading up to the death significantly contributed to D’s loss of control. This can be seen in Ahluwalia (1993), where D poured petrol over V and set V alight, resulting in injuries leading to his death. It was discovered she had an arranged marriage to V, had suffered long-term abuse over the marriage, and had been threatened with beatings on the night of the incident. She was originally convicted of murder before appealing. However, the new law, stating the qualifying trigger could be “genuine fear of serious violence from victim or another” S.55 (3) C&J Act 2009, would allow D to use loss of control as a partial defence. This shows a gender bias in the old law, where men could use ‘nagging’ and

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