Domestic Abuse,Suicide and Liability for Manslaughter: In Pursuit of Justice for Victims

Dhaliwal and the Problem of ‘Bodily Harm’

In 2005, Gurjit Dhaliwal took her own life following years of psychological, and occasionally physical, abuse perpetrated by her husband. The decision was made to charge her defendant husband, Harcharan, with manslaughter by unlawful and dangerous act contrary to common law, and the malicious infliction of grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861. Despite evidence of numerous physical assaults perpetrated by the defendant against the victim, including a strike to the forehead on the evening of her suicide, the prosecution was not convinced that the causal connection between the physical assaults and the suicide could be readily established on the facts. Instead, they opted to construct the manslaughter charge on the serious psychiatric or psychological illness caused by the cumulative effect of the domestic violence perpetrated by the husband, which they determined was the ‘overwhelming’ cause of her suicide. ³⁵ The Central Criminal Court determined that no reasonable and properly directed jury could convict Dhaliwal of either the manslaughter of his wife or the infliction of grievous bodily harm on her person. ³⁶

The decisive issue in Dhaliwal’s case was whether grievous bodily harm required a finding that the victim had been caused to suffer a recognised psychiatric illness or whether the infliction of serious psychological illness or injury would suffice to ground the manslaughter charge. ³⁷ Perhaps borne out of a fear of creating uncertainty, casting the culpability net too widely, and unjustifiably criminalising the causing of ‘normal’ human emotions (such as grief, fear, anger), the Court of Appeal upheld the trial judge’s determination that nothing short of recognised psychiatric harm or injury would constitute ‘bodily harm’ in this context. ³⁸ The Court accepted the innate evidential difficulties encountered in cases where there is no opportunity, by reason of their untimely death, for experts to examine victims to determine whether there is sufficient evidence of a recognised psychiatric illness. ³⁹ Yet they also acknowledged that a manslaughter conviction may still be possible in cases such as Dhaliwal. Citing the decision of Judge Roberts QC in the central Criminal Court, the Court of Appeal confirmed that:

…where ‘a decision to commit suicide has been triggered by a physical assault which represents the culmination of a course of abusive conduct’, it would be possible for the Crown ‘to argue that that final assault played a significant part in causing the victim’s death… ⁴⁰

It had previously been acknowledged by the court in Chan Fook ⁴⁴ that ‘there is a line to be drawn’ ⁴⁵ between ‘normal human emotions’ ⁴⁶ on the one hand and recognisable psychiatric illness on the other. This distinction has always been determined by expert psychiatric evidence. ⁴⁷ Chan Fook established that ‘states of mind that are not themselves evidence of some identifiable clinical condition’ ⁴⁸ do not fall within the parameters of the ‘bodily harm’ concept, an approach which was endorsed by the House of Lords in Burstow. ⁴⁹ The court in Dhaliwal, having reviewed the relevant authorities, submitted that if they were to acknowledge psychological injury, as opposed to diagnosable psychiatric illness, as constitutive of bodily harm this would ‘introduce an element of uncertainty’ to the law which would compound the ‘inevitable problems of conflicting medical opinion in this constantly developing area of expertise’. ⁵⁰ While this somewhat apathetic approach to the magnitude of emotional abuse precluded a conviction in the instant case, the Court did at least acknowledge that the ‘current understanding of the workings of the mind is less than complete’, ⁵¹ thereby leaving the door ajar for future innovation based on a more advanced understanding of the injurious impacts of such abuse.

Subsequent to the decision in Dhaliwal, there has been significant criticism of the judicial focus on psychiatric diagnoses as a basis for the attribution of criminal liability which, it is argued, ignores the broader, and often equally harmful, psychological impact of domestic abuse on victims. ⁵² The potential significance of the Dhaliwal decision for victims of domestic abuse cannot be underestimated; the Court of Appeal could have seized the chance to demonstrate their commitment to developing more appropriate legal responses to domestic abuse. ⁵³ The rigidity of the original judgment was disappointing to say the least. As a direct retort to the reasoning proffered in the judgment, it was contended by Munro and Shah that a more flexible, victim-centred and trauma-informed approach to Dhaliwal’s case could have enabled the judges to exploit the opportunity they had to extend liability for domestic abuse–related suicide in meritorious cases. ⁵⁴ Some of the criticisms of the Court’s approach to establishing the base offence in domestic abuse suicide cases will now be explored.

As alluded to above, the criminal law has, historically, been slow to recognise that non-physical abuse constitutes harm of sufficient severity to warrant criminal prohibition. It was not until the end of the 20th century that the courts officially accepted the extension of the related concepts of ‘actual bodily harm’ and ‘grievous bodily harm’ to include clinically diagnosable psychiatric conditions. ⁵⁵ Despite this development marking a significant turning point at the time, the deficiencies of a medicalised approach to determining the existence of bodily harm soon became apparent. ⁵⁶ Even in cases where severe psychological injury or emotional harm has been inflicted in the context of an intimate relationship, absent a clinical diagnosis victims had no recourse to justice through the law relating to offences against the person. The injustice of this position is felt even more acutely when the psychological or emotional abuse precipitates suicide. In these circumstances, where the subject of any prospective medical diagnosis has taken her own life, establishing the legal requirements to ground a conviction based on bodily harm (and, as a logical corollary, to establish the unlawful act required to ground a constructive manslaughter conviction) is especially challenging.

In Dhaliwal, one of the Court of Appeal’s primary reasons for retaining a focus on the necessity of a medical diagnosis of psychiatric harm was in the interests of certainty; but this pursuit of certitude proved futile, since there was no consensus between the medical experts providing the diagnosis. This led to criticism of the judicial preference for ‘the precision of science over the perceived vagaries of emotion’. ⁵⁷ It is argued that the ‘privileging of medical knowledge over a large body of social science research relating to the effects of domestic abuse’ ⁵⁸ should no longer be tolerated, in the interests of securing justice for victims of domestic abuse suicides, whose voices are rendered ‘literally absent’ ⁵⁹ from proceedings. Munro and Shah are critical of previous judicial distinctions between psychiatric injury which does constitute psychological harm and other non-physical harm which does not. In particular, the repeated reference to ‘mere emotions’ such as fear, distress and panic as not being constitutive of psychiatric injury of a sufficiently serious nature to warrant criminalisation ⁶⁰ seems to downplay the often life-changing (and sometimes life-ending) experiences of domestic abuse victims. ⁶¹

To address the perceived inadequacies of the traditional diagnosis of harm in the context of establishing an offence under the OAPA 1861, judicial approaches to interpreting the law could be adapted to the extent that, even in the absence of a clinical diagnosis, significant psychological symptoms are sufficient to count as ‘bodily harm’. However, such an approach may not be strictly necessary since the enactment of a new criminal offence which explicitly criminalises repeated, non-physical, abusive behaviours in the context of close personal relationships, which could now provide an alternative route to suicide liability.

Coercive and Controlling Behaviour: An Alternative Base Offence

In the event that the courts are not prepared to extend existing offences against the person to embrace psychological injury or emotional harm, the relatively new addition of an offence prohibiting coercive and controlling behaviour to the criminal law’s armoury may provide an alternative route to justice not only for the survivors of domestic abuse, at whose protection the offence is primarily aimed, but also for those who have resorted to taking their own lives as a consequence of abuse. Building on Stark’s conceptualisation of coercive control as a liberty crime, ⁶² Parliament decided to close a gap that existed in the criminal law whereby perpetrators of systematic, non-physical abuse, which fell short of causing a recognised psychiatric condition, were not caught within the confines of existing criminal offences. It is recognised in the academic literature that, traditionally, criminal law frameworks have not paid sufficient attention to harm caused by coercive and controlling behaviour by focusing on incident-based (physical) violence, which is often positively detached from the background context of the relationship. ⁶³ The development of the coercive and controlling behaviour offence demonstrates a much anticipated acceptance that non-physical abuse without a clinical diagnosis of psychological injury is the legitimate target of criminal prohibition. If the coercion and control exerted by the accused results in the victim taking their own life, a manslaughter conviction may, in principle at least, be easier to establish than it ever has been before, since the new offence circumvents the problem of proving a diagnosable condition.

The section 76 offence requires the accused to have repeatedly or continuously engaged in behaviour towards another person that is controlling and coercive. ⁶⁴ The defendant and the other person must also, at the time of the behaviour, be ‘personally connected’. ⁶⁵ The behaviour is required to have a serious effect on the other person. ⁶⁶ Finally, the accused must know or ought to know that the behaviour will have a serious effect on that other person. ⁶⁷ The offence has been welcomed for the manner in which it captures the ‘underlying architecture’ of the harm caused by abuse more effectively than the previous incident-based system, by providing appropriate recognition of the loss of liberty, intimidation, isolation and control that is an enduring feature of many cases of intimate partner violence. ⁶⁸ The totality of the harm is rightly recognised, ⁶⁹ and the offence may well serve an educative, awareness-raising function, ⁷⁰ perhaps even encouraging victims—typically so blinded by the abuse as to lack awareness of its effects—to recognise the harm being done to them ⁷¹ and to tell their background stories, which are now afforded legal significance. ⁷² Despite the enactment of the new offence offering renewed optimism in the pursuit of successful constructive manslaughter prosecutions where a pattern of abusive behaviours precipitate a suicidal response, the route to conviction is not without obstacles.

Reframing domestic abuse as coercive control has exposed a number of problems. ⁷³ The first to be considered here is evidential. Writing in the immediate aftermath of Dhaliwal, Horder and McGowan identified the potential difficulty of proving the cumulative effect on of non-fatal offences, which may involve unwitnessed, systematic abuse over a prolonged period of time. ⁷⁴ Although the coercive control offence now provides overt legal recognition that abuse involves a ‘course of conduct’, concerns about proving the underlying offence elements to the requisite criminal standard of proof persist. ⁷⁵ The offence relies on contextual analysis, something which arguably the criminal justice system is ill-equipped to provide at the best of times, not least when the victim is no longer here to furnish the court with circumstantial detail. While recognising that the coercive control offence should be championed for its efforts to combat the ‘rampant mischief’ of domestic abuse, Edwards recognises that in respect of translating what is essentially a clinical concept into law that is actionable, ⁷⁶ the potential ‘shortcomings are legion’. ⁷⁷ Coercion per se is hard to evidence in law; it requires a curtailing of another person’s free choice, but to what extent must freedom be eroded before the conduct becomes criminal? As Tolmie emphasises, each case involves an ‘individualised package of behaviours’ ⁷⁸ developed for the particular victim by the person who knows her most intimately. A complex factual analysis of the situation is required, one which the legal system is arguably not yet ready to provide. Proving coercion is also likely to require considerable engagement on the part of the victim in the legal process; a detailed narrative is likely to be required before the burden of proof can be discharged. Aside from the overwhelming problem that in domestic abuse–induced suicide cases the victim (as the primary witness) is dead, living sufferers do not always appreciate their status as victims, since the traumatic nature of an abusive experience often induces victims to minimise or normalise the behaviour of the perpetrator. Many victims of abuse may not be able to appreciate or verbalise their experiences until they have left the hostage-like state; ⁷⁹ and, unfortunately for victims who have taken their own life, the opportunity to personally tell their stories will never be realised.

In cases where victims have had some form of previous interaction with the police or other state agencies, or there are other witnesses of the abuse they have endured, there may be sufficient evidence of the context to establish the requisite elements of the coercive control offence. However, it is well-accepted that many survivors do not engage with state agencies for a variety of complex reasons, ⁸⁰ and even if they do, the difficulties of establishing the offence prerequisites may persist, for the reasons explored above. ⁸¹ These issues appear to manifest in poor prosecution rates. ⁸² The consensus from the literature that has followed the introduction of the coercive control offence is that, absent any comprehensive and long-term commitment to shifting attitudes, and without more robust training of a variety of state agencies involved in domestic abuse cases, the offence will continue to be ineffective and underutilised. ⁸³ Historically, the response of the criminal courts to female victims of gendered violence in particular has been woefully inadequate, but perhaps there is a ‘cautious optimism’ ⁸⁴ that the developing understanding of coercive and controlling behaviour may assist various actors in the criminal justice system to respond more effectively to intimate partner violence, including that which results in the victim’s suicide.

Notwithstanding the problems of proving the stand-alone coercive control offence, it has also been acknowledged that the ‘legal foundations’ for constructing a manslaughter conviction on the basis of the offence of coercive and controlling behaviour are, as yet, largely ‘untested’. ⁸⁵ Indeed, there have been pertinent cases of proven coercive and controlling conduct that have resulted in the suicide of the victim which could, in principle, have warranted an extension of liability for manslaughter; but the fact that convictions have, more often than not, been limited to non-fatal offences is perhaps indicative of the courts’ reluctance to extend liability in such cases. ⁸⁶ In one case, however, hailed as a ‘legal first’, ⁸⁷ Stafford Crown Court convicted the accused, Nicholas Allen, of the unlawful act manslaughter of his former partner, Justene Reece, after he pleaded guilty to charges of coercive and controlling behaviour, stalking and manslaughter, following a protracted campaign of abuse which culminated in the victim’s suicide. The guilty plea precluded any detailed discussion of the offence requirements, so, while the conviction is welcome and may mark a potential shift in the courts inclination to prosecute, many questions remain unanswered regarding the scope of liability for manslaughter in these circumstances.

Having explored the potential unlawful acts on which a manslaughter conviction may be constructed, either through more flexible interpretations of the traditional offences against the person or through the acceptance of an alternative base offence, another significant barrier to prosecution must now be explored; the sufficiency of the accused’s causal contribution to the victim’s suicide.

Free, Deliberate and Informed Human Intervention

The ordinary principles of causation are such that a voluntary act of a person other than the accused (including the victim ⁹⁶ ) which is ‘free, deliberate and informed’ ⁹⁷ will disrupt the causal connection between the defendant’s action and the victim’s death. ⁹⁸ This basic legal position is premised on the idea that autonomous people are responsible for their own decisions, as long as the choice to bring about the consequence is not ‘significantly induced, fettered or constrained by the situation [the accused] has created’. ⁹⁹ A perpetrator of abuse might contend that their causal responsibility is displaced by the victim’s freely chosen conduct; but, it could equally be countered that the suicidal response of the victim was provoked entirely by the defendant’s behaviour, and in that sense was not the product of a truly autonomous decision.

The idea that the domestic abuse victim has not freely chosen self-sacrifice finds support in the academic literature. Horder and McGowan suggest that in cases where a controlling influence is established through coercive and threatening behaviour, which renders the victim unable to exploit alternative means of fleeing the abuse, the abuser can be causally responsible for the victim’s action of choosing suicide as the only means of escape from the controlling and coercive influence. ¹⁰⁰ Munro and Shah also opine that often the apparent choice to commit suicide on the part of the abuse victim is not underscored by true autonomy at all. They suggest that, when assessing the causation requirement, it must be borne in mind that, ‘human beings make choices in a complex network of interpersonal relationships and against a context of myriad social influences and communal norms’, ¹⁰¹ to the extent that the voluntary nature of the victim’s response in domestic abuse–related suicide cases is, at best, doubtful and this is a contention that warrants closer judicial scrutiny.

In furtherance of the argument that the abuse victim has not freely chosen a suicidal option, it is well-documented that opportunities for victims of domestic abuse to flee to a place of safety are limited, in terms of both the victim’s perception, but also in reality. Although an increase in criminal laws prohibiting various manifestations of abuse means that access to state protection is, in principle, now more obtainable than ever before, the criminal justice system does not always provide an appropriate solution. As discussed above, there are difficulties evident at all stages of the justice process that potentially render it redundant as a mechanism of protection, particularly for victims of non-physical abuse. In cases where the victim has a conscious awareness of the harmful situation they are in, they may be reluctant to involve the police, and even where they are willing to engage, police investigations are not always adequate and subsequent prosecutions may prove difficult due to lack of available evidence. Notwithstanding the fact that a prosecution may be successful, the subsequent sentence may be insufficient to protect the victim from further abuse. Beyond the criminal justice system, other support mechanisms that might provide a means of escaping abuse are also not as readily accessible as they should be; in the current climate of austerity, domestic abuse service providers are struggling to offer a necessary lifeline to some victims, and their provision of invaluable support to desolate victims is being stretched to breaking point. ¹⁰² In short, the lack of availability of tangible escape routes that are so desperately needed means that when the abuse becomes intolerable, there is no often no discernible alternative, from the victim’s perspective, other than deliberate self-sacrifice. This, in turn, gives credence to the claim that the victim’s suicidal response to domestically inflicted terror is not the product of unfettered choice.

In terms of the legal response, it has recently been suggested that existing causation principles could be construed to ensure perpetrators of abuse are held accountable for placing victims in a position of severely constrained ‘choice’, rather than interpreting the principles to blame victims for their understandable responses. The influence of human intervention on causal responsibility was considered recently in the case of Wallace. ¹⁰³ Mark van Dongen was the victim of a deliberate acid attack perpetrated by his former partner, Berlinah Wallace, which left him ‘terribly disfigured, completely paralysed and in a permanent state of unbearable constant physical and psychological pain that could not be ameliorated by his doctors’. ¹⁰⁴ As a consequence, he expressed a wish to be actively euthanised and, given that the victim was physically unable to take his own life, ¹⁰⁵ he made an application to be euthanised by a doctor in Belgium, in accordance with a process which is lawful in Belgian law. ¹⁰⁶ Wallace was charged with murder ¹⁰⁷ but the allegation was disputed on the basis that, following the attack, the victim made a free and informed choice to seek death which constituted an intervening act, thereby displacing her causal responsibility for his death. Although the circumstances of this case are not directly analogous to domestic abuse–induced suicide cases, ¹⁰⁸ aspects of the judicial synopsis of relevant causation principles in Wallace may inform future approaches and are therefore worthy of some consideration here.

In Wallace, the trial judge suggested that:

if one is to accord proper respect to the decision and actions of persons with free will acting autonomously…then the legal result of their free and voluntary choice…to end their own or another’s life must…[disconnect] both the choice to die and the death itself from the circumstances generating the occasion for it. ¹⁰⁹

Escaping from Threats and Reasonable Foreseeability

It is clear from the preceding analysis that the courts have shown a readiness to contextualise intervening acts to secure what they perceive to be a just outcome in each individual case, where there exist compelling policy reasons to do so. As well as recognising that the actions of third parties acting in circumstances of extreme pressure created by a defendant may not be legitimately described as ‘free, deliberate and informed’, ¹¹⁵ even in cases where the victim’s conduct might still be described as autonomous, the courts endorse the continued causal responsibility of the defendant where the victim’s conduct was reasonably foreseeable as a consequence of the accused’s action. So, even in cases where the victim’s own actions appear to be more immediate cause of death than the defendant’s original conduct, their conduct may be attributable to the accused if it was in reaction to the defendant’s wrongful conduct and the response was a reasonably foreseeable possibility. ¹¹⁶ Where a victim seeks to escape a threatening situation, for instance, the courts maintain that the escape attempt does not constitute a novus actus interveniens if the reaction was, ‘within a range of responses which might be expected from a victim placed in the situation…[bearing in mind]…any particular characteristics of the victim’. ¹¹⁷ This principle is well established at common law.

Discussing these judicial assertions, Munro and Shah suggest that cases where victims flee a threatening situation in the interests of self-preservation are analogous to those in which abuse victims seek what they perceive to be the only available form of psychological self-preservation against a background of systematic abuse. ¹¹⁸ It is plausible that systematic abuse contributed in a causally significant way to the death of the victim, whose response to the abuse is not unnatural. As alluded to above, research on the prevalence of suicide among domestic abuse victims bears this out; suicide may be viewed by many as a drastic response, and not one that every victim will contemplate, but it at least appears to be within a range of foreseeable responses to domestic abuse. ¹¹⁹ Any argument that suicidal reactions are extreme and therefore unforeseeable can also be rejected on the basis that ‘causation principles do not require the accused to foresee the precise future consequences of their conduct’. ¹²⁰ As long as the victim’s reaction is not deemed to be ‘extraordinary’, ‘daft’ or ‘unexpected’, it does not render the causal contribution of the defendant insignificant. It would therefore appear that seeking death as an escape from horrific psychological injury (with or without the presence of physical violence) is not a response that would preclude the jury from finding that the defendant has made a sufficiently significant causal contribution to the victim’s death.

On a more restrictive interpretation of principle (and not one that is advocated here), the victim’s suicidal response may be deemed disproportionate, to the extent that the reasonable foreseeability requirement may not be satisfied. However, another basic causation principle emerging from the legal discourse maintains that defendants must ‘take their victims as they find them’, ¹²¹ including their physical and psychological make-up. It is a settled principle that a victim who refuses life-saving treatment (which could effectively be construed as a suicidal act), following a physical injury deliberately inflicted by a defendant, does not sever the causal connection that holds the original actor responsible. This principle could, therefore, enable the vulnerabilities of the abuse victim to be accounted for in assessing the reasonableness of their response. However, arguably this principle does not offer as much support to the contention that the abusive defendant is causally responsible as is sometimes assumed, since it is not universally accepted that the rule applies to actions performed by the victim rather than omissions which bring about a result. ¹²² In domestic abuse–induced suicide cases, then, it seems the vulnerability of the victim is not, in and of itself, sufficient reason to displace the accused’s causal responsibility; but the fragility created as a result of the abuse will be relevant to the assessment of other well-established causation requirements relating to freedom of choice and reasonable foreseeability.

The causation rules considered above merely set down standards to be generally applied in the assessment of causal responsibility. The nebulous nature of the causation inquiry allows for analogies to be drawn between rules developed in decided cases and novel situations that may require further judicial contemplation. In domestic abuse–induced suicide cases, it is clear from the discussion above that the vulnerable position that victims find themselves in on account of the abuser’s conduct could be given legal import in determining either the autonomous quality of the victim’s response, or, by analogy with an alternative line of reasoning, the reasonable foreseeability of her suicidal response. It is open to the courts to realise the opportunity to afford legal significance to the position of victims of abuse by providing a clear and transparent statement of principle. A more robust and progressive approach to the law will demonstrate the courts taking seriously their obligations to tackle domestic abuse.

Gross Negligence Manslaughter?

The difficulties of successfully pursuing a charge of unlawful act manslaughter conviction in respect of domestic abuse–induced suicide are acknowledged above. Even if the problems associated with causation are surmountable, it may prove challenging to establish the cumulative effect of abuse over a potential period of years to affirm coercive control as the underlying unlawful act. ¹²³ In the aftermath of the Dhaliwal decision, it was suggested by Horder and McGowan that some of the perceived difficulties could be circumnavigated by basing liability on the gross negligence manslaughter offence, in the alternative.

Applying the well-rehearsed principles set out in the seminal case of Adomako, ¹²⁴ it would appear relatively easy to establish that a perpetrator of abuse in the context of an intimate relationship would owe a duty of care to the suicide victim on the basis that the victim is a person who may be foreseeably harmed by the defendant’s action. The duty would clearly be breached by virtue of the abuse, and the breach of the duty also has the potential to be grossly negligent, taking into account the whole course of abusive conduct being regarded as so bad that it warrants criminal prohibition. The defendant’s grossly negligent breach of the duty must also have exposed the victim to a risk of death. ¹²⁵ It is not beyond the realm of possibility that the grossness requirement could be satisfied by the accused’s abusive behaviours, and the cumulative effects of the abuse throughout the relationship would provide pivotal support for this contention. A wide range of evidence could also be presented to the court to substantiate such claims. ¹²⁶ In respect of proving causation, it could arguably be easier to establish causation for this offence because the unlawfulness in gross negligence manslaughter cases is manifest in the grossly negligent breach of the duty. In other words, the cumulative requirements satisfy the need to demonstrate causal salience; ¹²⁷ the focus of the enquiry is on whether, overall, what the defendant did was so bad as to be deserving of the manslaughter label. This could enable a more flexible approach to causation. On the other hand, the unlawfulness in constructive manslaughter cases is entrenched in the underlying unlawful act, but the coercive and controlling behaviour offence focuses attention on a potentially wide range of abusive behaviours, some of which are criminal and some of which are not, therefore making it difficult to clearly establish the criminality required. For these reasons, it has been suggested that pursuing the gross negligence manslaughter option could ‘make prosecutions easier in practice as well as being sound in principle’. ¹²⁸ The offence elements, often criticised for their nebulous nature, could be flexibly applied to ground liability for homicide.

It is important to note, however, that some of the arguments articulated in favour of gross negligence manslaughter were coined before the introduction of the coercive and controlling behaviour offence. Therefore, reliance on the constructive manslaughter prohibition, now underpinned by an offence that overtly recognises the cumulative and deleterious impacts of non-physical abuse, is a more viable prospect. While there may still be some merit in the argument that causation could be easier to prove in gross negligence manslaughter cases, a more transparent approach to causation in constructive manslaughter cases, as advocated above, would operate to undermine any preference for applying the gross negligence manslaughter prohibition in this context. These developments, therefore, arguably circumvent the need for any unnecessary, some might say ‘undemocratic’, ¹²⁹ judicial development of the already unwieldy gross negligence manslaughter offence.

A Specific Statutory Offence of Domestic Abuse–Induced Suicide?

One final option warrants some consideration here, and that is the creation of a separate, specific offence of domestic abuse–induced suicide, a development that has been mooted at various junctures and has been brought to fruition in some jurisdictions. ¹³⁰ There is some resistance to the construction of a separate offence on the basis that the recent expansion of discrete homicide offences generally is contestable. ¹³¹ Conversely, others advocate the creation of a new statutory homicide offence could deal more effectively and transparently with abuse-induced suicides, while simultaneously drawing much-needed attention to the issue. ¹³² Writing at a time when the adequacy of the law of homicide was under scrutiny, Elliott and De Than argue that existing laws need to be ‘restructured more radically to reflect the specific contexts in which [homicide offences] are now committed’. ¹³³ The contention is that there should be a more profound change to the law of homicide to afford more respect to the principle of fair labelling and to demonstrate that the life of a victim of domestic abuse is of equal value to those who have lost their lives in other circumstances. ¹³⁴

In respect of the question of fair labelling, it is a well-established principle of criminal law that offences should be ‘subdivided and labelled so as to represent fairly the nature and magnitude of the law breaking’. ¹³⁵ The current two-tier structure of homicide, developed at common law, is arguably blind to moral variations in the vast array of killings that can fall within its scope. Murder and manslaughter are distinguished by virtue of the mens rea requirement alone, but as Elliott and de Than explain, this approach permits ‘significant factual variations such as the vulnerability of the victim and the motive’, of the defendant to be ignored, at least at the stage of establishing a conviction. ¹³⁶

In recognition of the common law’s failure (or at least recalcitrance) to pursue manslaughter convictions in domestic abuse suicide cases on the basis of the existing manslaughter prohibitions, Elliott and de Than propose that a new statutory homicide offence would more effectively capture the distinctive and devastating harm caused in such cases. ¹³⁷ They argue that the most effective way to provoke change, and thus secure justice for victims of suicide induced by domestic abuse amidst this culture of inaction, is ‘through a new statutory offence which officially recognises that homicide liability should be pursued’. ¹³⁸

While there may be some benefits to the creation of context-specific offences, not least to incentivise prosecution, ¹³⁹ criticisms of unnecessary particularism abound. ¹⁴⁰ Munro and Aitken have voiced concern that a tailored offence ‘risks ghettoising domestic abuse, and providing limited justice for victims whilst ensuring a symbolic victory in terms of legislative intent’. ¹⁴¹ In creating separate offences, there is a legitimate concern that the seriousness of the criminal behaviour would be undermined, although it could be counterargued that it is still better to have a statutory offence that carries this hazard of marginalisation and has the effect of encouraging prosecution, if the alternative is to maintain the current position which arguably provides no motivation to prosecute. As explored above, it is now accepted that the coercive and controlling behaviour often at the root of domestic abuse is sufficiently distinctive to warrant separate treatment as an offence in its own right, and this argument carries weight when translated to domestic abuse–induced suicide cases. The circumstances that have driven a victim to suicide are uniquely harmful and deleterious to the victim’s personhood; they are not mere factual exemplifications of the wrongness of the conduct, ¹⁴² but rather they mark it out as particularly harmful and thereby warranting separate and specific treatment. ¹⁴³ There exists, therefore, at least an argument that a particularised statutory offence of domestic abuse–induced suicide is desirable to satisfy the principle of representative labelling.

Recognising that the consequence in all involuntary manslaughter cases is the same (death), outcomes are not the only significant feature of such cases; the social significance of the harm caused and its impact on society should arguably also be overtly accounted for. ¹⁴⁴ Whether this end is best achieved by adding another offence to the statute books or by investing more time into operationalising the coercive control offence and developing more transparent judicial approaches to interpreting other offence requirements is a matter for debate. Given that the issue of domestic abuse–induced suicide has been sidelined in the Domestic Abuse Bill, attention should be focused on developing more robust responses to domestic abuse–related suicides within the confines of the existing provisions.