Reconceptualising Sexual Infidelity Provocation: New Anglo-Scottish Reform Proposals

Abstract

The Scottish Law Commission has recently confirmed in its Eleventh Programme of Reform, published in May 2023, the continuation of its medium-term project to examine the law of homicide. This includes a review of sexual infidelity killings and provocation as a partial defence to murder, or otherwise. It embraces a critique of whether and, if so, how any necessary proposals for modernising the law in this sensitive and important area should be made. A Discussion Paper has previously been published for examination. Against this backdrop, we analyse whether sexual infidelity ought to be retained in extant Scots law, as one of only two relationally relevant qualifying triggers. In November 2023, the Law Commission in England and Wales announced its forthcoming review of domestic homicide given contemporary understandings of the impact of domestic abuse. We provide novel insights into Anglo-Scottish law to seek to recalibrate the understanding of coercive/controlling behaviour in the contextualisation of sexual infidelity killings. Our review highlights the ways in which allegations of (actual or perceived) sexual infidelity may be symptomatic of coercive control through consideration of recent case law, and via the lens of Monckton-Smith's eight stages to femicide. A risk assessment is utilised to demonstrate the extent to which victims of coercive controlling behaviour have their capacity for action delimited, and how this should inform deliberations in cases where the coercively controlled individual kills in response. A novel and original new template is promulgated for provocation reform predicated de novo on qualifying triggers of domestic abuse and gross breach of trust and with a part-justificatory – part excusatory standardisation. It is suggested that a new nomenclature and typology is required as extant Scottish law on provocation is out of step with contemporary social mores, and the law in England and Wales does not adequately address contextual factors, such as, ethnicity, culture, religion, sexuality, disability, and migrant status, which impact on a domestic abuse victim's capacity for action. It is further propounded that a social entrapment lens, drawing on initiatives crystallised from New Zealand and Australian academician perspectives, ought to be enacted as part of urgently needed effective remedial legislation.

Keywords

Loss of control provocation sexual infidelity social entrapment coercive and controlling behaviour

Introduction

This article is a direct response to the Scottish Law Commission's current programme of reform, which asks whether sexual infidelity provocation should be abolished and replaced with a partial defence similar to the loss of control defence operating in England and Wales.¹ The reform solutions proffered are also directly relevant to the Law Commission's current review of domestic homicide in the context of domestic abuse in England and Wales.² Sexual infidelity provocation (Scotland) is anachronistic and ought to be abolished, but it should not be replaced by loss of control (England and Wales) which is not fit for purpose and is currently under review.³ Cases bearing the hallmarks of male proprietorialness (if I can’t have her, no one else can!) meet the requirements of the defence, whilst victims of abuse who kill their abusive partners struggle to attain the threshold elements which encapsulate masculine traits of losing control and responding in ‘justifiable’ anger. The loss of control defence and the exclusion of sexual infidelity as a trigger for that defence were introduced at a time when criminalising coercive control had not been ‘seriously considered’.⁴ It is now recognised that whilst killing in response to sexual infidelity might represent an extension of a pattern of coercive control by the perpetrator of abuse, sexual infidelity may also be used as a form of coercive control designed to denigrate and humiliate the victim and isolate them from their support networks.⁵ There are three overlapping limbs to sexual infidelity that we intend to focus on. The first is where actual or perceived sexual infidelity is used as an excuse to mitigate murder typically in cases of men killing women. The second is a form of coercive control where allegations and disclosure of sexual infidelity are used to shame the victim, and/or ostracise or create divisions between family and friends in terms of siding with the abusive partner.⁶ In this instance, the victim of abuse is at a high risk of serious or fatal injury, but in rare circumstances, the victim of abuse kills the abuse perpetrator. The third is where sexual infidelity provides a context to or aggravates the circumstances of the killing (referred to elsewhere as 'sexual infidelity plus'⁷), for example, where an abuse perpetrator is unfaithful, sexual infidelity leads to pregnancy,⁸ or is coupled with taunts regarding suicide as in Clinton.⁹

In Scotland, sexual infidelity provocation operates where the defendant reacts in ‘hot blood’, having lost his temper or self-control upon discovering an intimate partner's sexual infidelity.¹⁰ South of the border, pre-eminent exclusion of sexual infidelity from consideration as a qualifying trigger does not prevent coercively controlling killers from claiming the loss of control defence,¹¹ and in practical terms loss of control claims involving sexual infidelity typically fall under the third ‘sexual infidelity plus’ categorisation. Sexual infidelity per se might well be excluded as a qualifying trigger, but where it is relevant as part of the wider circumstances the Court of Appeal in Clinton¹² left the ‘back door’¹³ wide open for consideration of sexual infidelity as part of the context in which to evaluate that qualifying trigger. Invariably, however, women are maligned where sexual infidelity arises where those killed by men have been ‘stereotyped’ based on actual or perceived unfaithfulness and ‘nagging’¹⁴ while women who kill their abusers have been cast as ‘jealous’ and ‘vengeful’.¹⁵ There appears to be little consideration of the relevance of sexual infidelity as a form of coercive control and the existence of sexual infidelity has even been used to modulate the coercive control experienced by victims when they kill in response.¹⁶ Indeed, ostensible ‘victim precipitation’ (how much a victim is considered responsible for their victimisation) has been a mainstay in cases of men killing women.¹⁷ What is needed is a recalibration of our understanding of coercive control in the context of sexual infidelity and its potential (ir)relevance to partial defence claims.

Bolstered by over 40 years of literature emphasising the extent to which perpetrators are excused in the context of sexual infidelity killings and dead women maligned, it is unsurprising that academics were quick to point out that the sexual infidelity exclusion would do little to address killings prompted by male proprietorialness, jealousy and envy.¹⁸ This article extends the analysis¹⁹ of patriarchal control over women by highlighting the ways in which allegations of (actual or perceived) sexual infidelity may be symptomatic of coercive control through consideration of Monckton-Smith's eight relationship stages to homicide and recent case law.²⁰ Monckton-Smith's risk assessment is also used to demonstrate the extent to which victims of coercive control have their capacity for action delimited, and we argue that this should inform deliberations in cases where the coercively controlled victim kills in response.

The trial judge as gatekeeper for any new partial defence should be guided in cases involving (former) intimate partners by the social entrapment concept.²¹ In determining whether the partial defence should be left to the jury in cases involving (former) intimate partner homicide, the trial judge should be required to consider three key factorisations: in cases involving evidence of coercive and controlling behaviour, there should be consideration of how the behaviour reduced the coercively controlled victim's capacity for action through social isolation or other means; the (in)effectiveness of any formal response to the conduct, that is, how authorities and services respond to claims of coercive control can impact on whether an individual will seek support from these services and poor responses may be used by the perpetrator as another way to control the victim; and structural inequalities which the coercer has exploited as a means of control or which make it more difficult to access safety options.²² The Law Commission has highlighted the importance of considering ‘the impact of different victims’ experience in this context, including but not limited to their culture, [ethnicity] religion, sexuality, disability, and migrant status’ in the context of defences.²³ Though the use of sexual infidelity as a means of control or being controlled could be relevant in relation to all three of these social entrapment factorisations, we are of the view that its potential (ir)relevance to a partial defence claim ought to be more clearly demarcated. In terms of the relevance of sexual infidelity in the context of social entrapment, consideration should be given to whether allegations of sexual infidelity represent a means of control by the abuse perpetrator or being controlled as experienced by the victim, considered further below.²⁴ Killings prompted by jealousy, proprietorialness and attempts to control, typically male to female, should be excluded from fact-finder evaluation, whereas rare killings in response to coercive control/domestic abuse, typically female to male, should be left to the jury.²⁵ In intimate partner homicide cases where the partial defence is left to fact-finder evaluation, juror directions should be provided which outline the social entrapment concept and (ir)relevance of sexual infidelity as outlined above.

We advance a novel partial defence that would operate both north and south of the border to reduce murder to culpable homicide or manslaughter, respectively, where the killing is in response to one of two qualifying triggers, and, a person in the circumstances, with an ordinary degree of tolerance and self-restraint, might have reacted in the same or a similar way to the accused²⁶ The qualifying triggers include where protection was in response to domestic abuse from B against the accused (A) (this may incorporate circumstances where a family member or friend witnesses the domestic abuse and/or the aggravated form of domestic abuse where a child or children are used as a means of perpetrating the abuse),²⁷ and/or gross breach of trust. For the defence in Scotland, domestic abuse takes the definition in sections 1 and 2 of the Domestic Abuse (Scotland) Act 2018,²⁸ whilst sections 1–3 of the Domestic Abuse Act 2021 would apply in England and Wales. In determining whether to leave the defence for fact-finder evaluation in the context of (former) intimate partner homicide involving coercive control, judges are directed to consider the three key factorisations outlined above, in addition to the posited direction on sexual infidelity. Where the partial defence is left to the jury in such cases, fact-finders should also be directed to consider these contextual factors.

Sexual Infidelity Provocation in Scotland

Provocation in Scotland operates as an excuse reducing murder to culpable homicide where the defendant reacts in ‘hot blood’, having lost his temper or self-control in response to physical violence, or more controversially upon discovering an intimate partner's sexual infidelity.²⁹ Though rarely used in court,³⁰ sexual infidelity provocation, in essence, represents an ‘allowance simply for the rage and desire for revenge which swept over’ the jealous lover.³¹ Jurors are asked to consider whether the defendant lost self-control when confronted with the lack of fidelity, and ‘whether an ordinary man, having been thus provoked, would have been liable to react as he did’.³² The temporal divide between the discovery and the killing must be such that the accused was ‘not master of his emotions’.³³

This ‘peculiar’³⁴ and remarkably anachronistic³⁵ defence initially operated for men only³⁶ at a time when married women were regarded femme covert³⁷ and sub virga viri sui.³⁸ As time progressed a shift in normative expectations of sexual perfidy in marital contexts might be expected, yet the opposite transpired with a ‘sui generis’ expansion of the circumstances in which a wife's unfaithfulness could partially excuse the response of her incandescent spouse.³⁹ The requisite of ocular observation was no longer the threshold set, with sexual infidelity provocation being left to the jury based on a confession thereof,⁴⁰ fresh admission two days after an initial confession,⁴¹ and a husband finding circumstances to indicate his wife engaged in lesbianism.⁴² This duty of fidelity was further extended to embrace relationships outside of marriage dependent upon the nature of the relationship, for example, a period of living together as man and wife, notwithstanding the challenges of establishing a duty of faithfulness in such contexts,⁴³ and particularly that infidelity is very difficult to dispute after the fatal blow. This is evidenced in Drury where the Crown claimed that the relationship had ended, whilst the defence countered that it continued until Drury lost control and killed McKenna with a claw hammer delivering some of the worst facial injuries the forensic pathologist had ever seen.⁴⁴ The reason: Drury claimed to believe that McKenna had sexual intercourse with a man he saw running from her house, and when her response to his question about what was going on was ‘what do you think?’, Drury claimed to have taken that as an admission.⁴⁵ In practical terms, the case was one where abuse continued after McKenna attempted to leave including Drury stalking her despite an interim interdict.⁴⁶

From regarding the wife as property of the husband to imposing narrow moral perceptions about the nature of intimate relationships generally and the implied, agreed or yet to be discussed expectations within individual private relationships, and using these as an excuse to reduce murder to culpable homicide, sexual infidelity provocation cannot be aligned with current social mores.⁴⁷ Put simply, ‘male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide’.⁴⁸

Loss of Control: A Panacea or Pandora's Box for Scottish Homicide Law

The Scottish Law Commission query whether the loss of control partial defence operating in England and Wales, which is pending review by the Law Commission,⁴⁹ could provide an option for reform to provocation in Scotland.⁵⁰ In 2010, the partial loss of control defence which replaced provocation was intended to reflect contemporary attitudinal standards and societal mores.⁵¹ In England and Wales, this ‘appropriate standardisation’, however, was abrogated in the final stages of the parliamentary process to centre on a loss of self-control and to exclude sexual infidelity as a qualifying trigger for jury deliberation.⁵² In Scotland, sexual infidelity provocation forms one of only two bases on which a reduction from murder to culpable homicide is available, whereas, in England and Wales, sexual infidelity per se is excluded, though it may be a relevant consideration as part of the circumstances of the case.⁵³

Loss of control operates to reduce murder to manslaughter where the defendant lost self-control in response to a fear of serious violence or a thing said or done or both which constituted circumstances of an extremely grave character and induced a justifiable sense of being seriously wronged, or a combination thereof. An ordinary person threshold test applies requiring that a person of normal tolerance and self-restraint might have reacted in the same or similar way in the circumstances.⁵⁴ A positive exclusionary model mandates ‘the fact that a thing said or done constitutes sexual infidelity is to be disregarded’.⁵⁵

Excluding Sexual Infidelity

The English Court of Appeal adopted an inclusionary approach to sexual infidelity in Clinton ‘influenced by the simple reality that in relation to the day to day working of the criminal justice system events cannot be isolated from their context’.⁵⁶ If an admissible trigger may be present, the evidence relating to sexual infidelity is considered contextually relevant in assessing that trigger.⁵⁷ In contrast, in Scotland, sexual infidelity provocation does not apply following a period between the initial revelation and the fatal act.⁵⁸ Accordingly, a knowledge of a background of infidelity would be irrelevant, in the absence of a fresh revelation.⁵⁹

Commentators criticised the inclusive interpretation of the sexual infidelity exclusion in England and Wales,⁶⁰ and Fitz-Gibbon noted that it highlights the extent to which exclusionary reform models may be manipulated.⁶¹ A number of authors, however, questioned the purpose of the exclusionary clause querying whether it was sexual jealousy (embracing stalking, coercive control and male proprietorialness, i.e. ‘if I can’t have her, no one else can!’.) that ought to be excluded rather than sexual infidelity.⁶² The sexual infidelity exclusion applicable to loss of control demonstrates the challenges associated with separating different circumstances that combine to contribute to a loss of control, and even where the law is prepared to make such distinctions, it is impractical to provide a complete list of the type of conduct that should be excluded.⁶³

In our view, the exclusion of sexual infidelity represents a smoke and mirrors attempt to address gender disparity in a law which privileges male proprietorialness, when what is mandated is a broader consideration of the context of these killings to appropriately assess whether a reduction from murder to manslaughter/culpable homicide is warranted.⁶⁴ Introduced over a decade ago, the drafting of the partial defence did not consider coercive control which has now been criminalised in the jurisdictions under consideration.⁶⁵ Sections 1 and 2 of the Domestic Abuse Act 2018 (Scotland) make it an offence for A to engage in a course of behaviour which is abusive to A's partner/ex-partner (B), a reasonable person would consider the course of behaviour to be likely to cause B to suffer physical or psychological harm; and that either – (i) A intends by the course of behaviour to cause B to suffer physical or psychological harm, or (ii) A is reckless as to whether the course of behaviour causes B to suffer physical or psychological harm. References to psychological harm include fear, alarm and distress. Abusive behaviour includes behaviour directed at B that is violent,⁶⁶ threatening or intimidating and/or behaviour directed at B, at a child⁶⁷ of B or at another person that either – has as its purpose (or among its purposes) one or more of the following relevant effects: making B dependent on, or subordinate to, A; isolating B from friends, relatives or other sources of support; controlling, regulating or monitoring B's day-to-day activities; depriving B of, or restricting B's, freedom of action; frightening, humiliating, degrading or punishing B.⁶⁸ In England and Wales, domestic abuse is now statutorily defined under sections 1–3 of the Domestic Abuse Act 2021 and coercive and controlling behaviour in an intimate or familial relationship is criminalised under section 76 of the Serious Crimes Act 2005.

Relevant to coercive control are accusations related to and revelations of sexual infidelity designed to shame, embarrass and denigrate the victim, and/or separate individuals from support networks.⁶⁹ The statutory guidance for England and Wales on coercive control includes specific examples of threatening behaviours including threats to disclose sensitive information, such as, sexual activity or making false allegations to family and friends and other networks.⁷⁰ The police guidance on the Domestic Abuse (Scotland) Act 2018 states that domestic abuse can include being threatened and allegations of cheating.⁷¹ Whilst our emphasis throughout this article is on the extent to which behaviour related to infidelity may be indicative of coercive control, it is important to acknowledge that ‘itemised lists …fail to capture the cumulative and compounding effect of being subjected to a suite of such behaviours over the passage of time’.⁷² Coercive and controlling behaviour is ‘an intentional pattern of behaviour that occurs on two or more occasions, or which takes place over time, in order for one individual to exert power, control or coercion over another’.⁷³ As such, we emphasise that allegations of sexual infidelity may be symptomatic of broader issues of coercive control within the relationship to which attention should be drawn when assessing whether to leave the case to fact-finder evaluation.

Criminalisation of coercive control has shone a stark light on the paradox of sexual infidelity killings and their ostensible exclusion under the Coroners and Justice Act 2009. On the one hand, they are indicative of controlling killers who refuse to let their (ex) partner leave,⁷⁴ and on the other hand, there are killings in response to coercive control where allegations of sexual infidelity and/or threats to reveal a partner's alleged infidelity may form part of the pattern of control of the victim.⁷⁵ Sexual infidelity may also mark an additional layer of humiliation of the coercively controlled victim who has experienced egregious domestic abuse from the abuse perpetrator, and then there may be cases outside of coercive control which warrant the law's compassion. Victims of abuse, however, are placed at a double disadvantage. First, the tautological and imprecise nature of the sexual infidelity exclusion does not prevent coercively controlling killers from claiming the partial defence since sexual infidelity may be considered where it is part of the context in which to evaluate the qualifying trigger.⁷⁶ Second, the emphasis on excluding sexual infidelity has resulted in insidious attempts by prosecutors to harness sexual infidelity on the part of the abuse perpetrator as a vehicle to modulate the abuse experience and feed into damaging jealous woman stereotypes in cases where women kill an abuse perpetrator.⁷⁷ Where allegations of sexual infidelity are made by the abuse perpetrator in such cases, this rarely appears to be considered as a potential form of coercive control, rather it feeds into the ‘precipitative victimisation’ narrative that has pervaded the discourse in intimate partner killing cases. In respect of the first set of circumstrances, the defence ought not to pass the judge as gatekeeper.⁷⁸

With respect to coercively controlled victims who kill, there needs to be a recalibration of our understanding of the impact of sexual infidelity in the context of domestic abuse. Sexual infidelity on the part of the perpetrator may be used to humiliate and denigrate the victim, and accusations that the victim has been unfaithful and/or threats to reveal (alleged) infidelity may all form part of a pattern of coercive control designed to reduce her support networks.⁷⁹ For other cases involving sexual infidelity, we must consider whether the conduct and accompanying circumstances are of such a level that it justifies the emotional response to the extent that it ought to be compassionately excused, albeit partially.⁸⁰

The Trial Judge as Gatekeeper

Over a decade ago, we outlined our optimism for the trial judge as gatekeeper⁸¹ to the partial defence in England and Wales in terms of restricting the plea in unmeritorious cases.⁸² Notwithstanding restriction of the plea, the trial judge as gatekeeper has not been the panacea we had hoped for, particularly in the context of intimate partner homicide. The following trilogy of cases, each of which involved allegations of or actual infidelity, provides some indication of how the partial defence and trial judge as gatekeeper mechanism has operated. It is important to note that feminist scholarship regularly considers a combination of judicial authority, media reports and sentencing comments to identify a broader account of the circumstances in cases involving domestic abuse.⁸³ Though media reporting of case law ought to be approached with caution, it can provide ‘a different, and valid, insight into the landscape of defences and lived realities’.⁸⁴ The following analysis draws on a combination of these sources.

In Jacob,⁸⁵ the trial judge and Court of Appeal emphasised the broader circumstances of the case in refusing to leave loss of control to the jury where the victim exercised personal autonomy in leaving the relationship. In Brehmer,⁸⁶ loss of control was left to the jury in the case of a police officer who killed his lover because she revealed their affair to his wife. In contrast, Martin⁸⁷ pleaded guilty to gross negligence manslaughter rather than risk pleading loss of control/diminished responsibility at a second trial.⁸⁸ Martin had fatally stabbed her partner as he attempted to strangle her.⁸⁹ The Court of Appeal considered that the account at the initial trial had been ‘underinclusive and not fully contextualised’,⁹⁰ with routine rapes not being considered at all.⁹¹ Wider reporting of the case highlighted that arguments had regularly centred around Farell's lying and cheating and his repeated allegations that Martin had cheated.⁹² Despite sexual infidelity or allegations thereof being present in all three relationships, the sexual infidelity exclusion meant that it had no bearing in Jacob and Brehmer nor would it have operated to exclude the infidelity in Martin's case since it did not amount to the thing said or done (the strangulation) but was arguably part of the circumstances of the case.⁹³

Jacob

The Court of Appeal considered the trial judge as gatekeeper had made the correct decision in not leaving loss of control to the jury in Jacob.⁹⁴ The Court of Appeal determined that a wife telling her husband she no longer loved him and was leaving him would not amount to circumstances of an extremely grave character inducing a justifiable sense of being seriously wronged.⁹⁵ Context was paramount in this case with the Court of Appeal stressing that a 44-year-old man of tolerance and self-restraint, in the circumstances, including the alleged infidelity⁹⁶ would not disarm his wife who he claimed had inflicted two minor cuts to his arm by attempting to strangle her, stab her twice in the back, and once in the chest.⁹⁷ The appellate court acknowledged that it was not ‘implausible that a woman at the end of her emotional tether might feel the need to take up a knife to protect herself as her husband approached’⁹⁸ particularly considering the multiple abusive Whatsapp messages,⁹⁹ allegations of sexual infidelity, and a police call the week before on account of Jacob's ‘crazy’ behaviour.¹⁰⁰ The ruling is significant in recognising that although the alleged circumstances of the victim picking up a knife might support, ‘however weak the case might seem’, the fear of serious violence trigger going to the jury,¹⁰¹ nevertheless the court in a broader contextualisation was unprepared to accept that an ordinary person would have responded in the way Jacob did.¹⁰² In effect, even though a qualifying trigger might be present in circumstances where a victim picks up a knife to defend themself, attention was directed towards the underlying reason for doing so and the defendant's overall response.¹⁰³ Appreciation of why a woman may use a knife and the heightened risk to her following police involvement/her attempt to leave is fundamentally important in terms of assessing the nature of separation killings.¹⁰⁴ Whilst the Court of Appeal unreservedly accepted the stress induced by marital breakdown, the partial defence clearly should not be available where D kills in response to an individual exercising personal autonomy by ending/leaving a relationship.¹⁰⁵

Brehmer

If the outcome in Jacob aligns with the moral and social barometer that ought to attach to partial defences, the case of 41-year-old police officer Brehmer¹⁰⁶ who fatally strangled his lover Parry after she revealed their affair to his wife represents the antithesis of a justifiable/warranted emotional response. Brehmer agreed to meet Parry in a car park believing she was about to tell his wife of their affair.¹⁰⁷ Once Parry was inside Brehmer's car, she sent a text message to his wife which read ‘I’m cheating on you’.¹⁰⁸

According to Brehmer, a fight then ensued during which Brehmer claimed to have attempted to ‘hoist’ Parry out of the car and said that during the struggle he must have ‘applied pressure to her neck, not realising what he was doing’.¹⁰⁹ Brehmer left the vehicle and told witnesses that he had been stabbed but did not mention Parry.¹¹⁰ Brehmer initially alleged Parry had stabbed him, then claimed he might have stabbed himself to get her attention, before accepting he stabbed himself.¹¹¹ Due to his ‘reprehensible’ lie,¹¹² the 999 operator warned the public to stay away from Parry while she lay injured in Brehmer's car.¹¹³ Parry died because her brain was starved of oxygen either because of Brehmer using his ‘elbow as a fulcrum or by putting the forearm across the throat’.¹¹⁴

Brehmer pleaded guilty to unlawful act manslaughter and the trial judge left loss of control to the jury, who acquitted of murder.¹¹⁵ In sentencing, Justice Jacobs found Brehmer had the requisite intent for murder, and sentenced on the basis that the qualifying trigger for loss of control was ‘only just met’.¹¹⁶ The facts were not captured by the sexual infidelity exclusion because the issue was not the unfaithfulness but that Parry revealed the affair. Brehmer's actions should have been viewed as an attempt to control his lover,¹¹⁷ and keep the affair secret from his wife, rather than a response to a justified sense of being seriously wronged because Parry decided to inform his wife of the affair after he had failed to do so.¹¹⁸ A justified sense of being seriously wronged implies that Brehmer had some sort of right of control over the secret which belies the putative gender neutrality of the law.¹¹⁹ Viewed through a lens of coercive control, combined with the challenges women involved with Brehmer would have in contacting the authorities given his post, it is difficult to see how Brehmer could be acquitted of murder in this case. Brehmer's sentence of 10 and a half years imprisonment was increased to 13 and a half years on appeal, since the initial sentencing judge had given ‘too little weight to’ the aggravating factors in the case.¹²⁰

Martin

Brehmer sits in stark contrast to the ‘paradigm’¹²¹ coercive control case of Farieissia Martin (Fri)¹²² who was sentenced to life imprisonment with a minimum term of 13 years for the murder of her former partner after self-defence and loss of control were rejected.¹²³ Martin had been in an intermittent relationship with Farrell for five years and they had two young children.¹²⁴ Their arguments often centred on Farrell's ‘cheating and lying’ whilst Farell also repeatedly accused Martin of sexual infidelity.¹²⁵ Farrell's violence regularly made Martin fear for her life but she did not alert the authorities because she was afraid that their young children would be taken into care.¹²⁶ On the evening of the killing, Farell attacked Martin and strangled her. Martin grabbed a knife before fatally stabbing Farrell.¹²⁷

Fearing for her children, Martin initially lied to the police.¹²⁸ Upon appeal, fresh evidence included Martin's testimony on routine rapes,¹²⁹ coercive control¹³⁰ and psychiatric testimony that revealed post-traumatic stress disorder (PTSD) resulted in the original ruling being deemed unsafe and a retrial ordered.¹³¹ The Court of Appeal considered that the fresh evidence provided a ‘proper basis’ for diminished responsibility. In the context of loss of control the Court outlined that the diagnoses were admissible, though not conclusive, and could, inter alia, support that Martin had lost self-control, be relevant to the gravity of the trigger and might be relevant to the circumstances in terms of assessing whether an individual of the same sex and age, with a normal degree of tolerance and self-restraint might have reacted in the same or a similar way. They could also provide context for the initial lies to the police. Martin's account of the abuse was ‘underinclusive and not fully contextualised’ meaning the trial judge could only ‘rehearse the historic individual incidents’.¹³² Martin subsequently pleaded guilty to unlawful act manslaughter and was sentenced to 10 years' imprisonment.¹³³

Jacob and Brehmer demonstrate the extent to which actual or perceived sexual infidelity may be viewed as a challenge to the hierarchy of the relationship thereby triggering an angry response whilst allegations thereof may operate as a form of coercive control in cases where victim survivors (such as Martin) kill.¹³⁴ Sexual infidelity may be symptomatic of these killings, but it will rarely be the sole or even the main factor.¹³⁵ Emphasis on sexual infidelity detracts from the broader issue of the dire risk victims of coercive control are in from the point at which their partner suspects they may leave or be unfaithful.¹³⁶

Understanding the Link Between Sexual Infidelity and Coercive Control

What is required in these cases is a broader appreciation of the relationship between sexual infidelity, actual or alleged, and coercive control in (former) intimate partner contexts. In (former) intimate partner cases involving (allegations of) sexual infidelity, this should trigger careful consideration of whether the killing represents an extension of the coercive control experienced by the victim or whether it provides essential context of the coercive control in cases where the coercively controlled victim kills the abuse perpetrator. Sexual infidelity should not be permitted to be used to dilute or modulate the abuse experience by feeding into the dangerous jealous woman stereotype as occurred in Challen.¹³⁷

Monckton-Smith's eight-stage ‘progression to homicide’, based on a review of 575 homicide cases involving women killed by men, is particularly instructive in this regard.¹³⁸ The risk assessment tool is designed to demonstrate the escalation pattern and high risk of homicide (specifically women being killed by men) in the context of coercive control.¹³⁹ The stages are ‘prerelationship, early relationship, relationship, trigger event, escalation, change in thinking, planning, and homicide’.¹⁴⁰ Monckton-Smith explains that prevailing narratives demarcate attempts to exercise personal autonomy through rejection, separation and/or actual or perceived sexual infidelity as a justifiable provocation.¹⁴¹ We extend this analysis to highlight that in considering provocation/loss of control, the ir(relevance) of sexual infidelity is essential in terms of assessing whether allegations of sexual infidelity are being used as a means of control and to demonstrate how sexual infidelity as part of a broader pattern of coercive control reduces the victim's capacity for action in the context of social entrapment.¹⁴² Allegations or threats to disclose real or illusory sexual infidelity may reduce the victim’s capacity for action in a variety of ways including, inter alia, erosion of her support network, that is, side taking, fear that she will not be believed or be blamed and/or fear that disclosures, true or untrue, will be made if she reaches out for support which may, in turn in her view bring shame to both her and her family. A greater understanding of alleged sexual infidelity in the context of coercive control might help to filter inappropriate loss of control claims. Similarly, a better appreciation of the entrapment of coercively controlled victims may also help the courts to understand the circumstances in the rare cases in which those victims kill the abuse perpetrator.¹⁴³

Stage one of Monckton-Smith's framework highlighted that in all cases where the perpetrator had a previous relationship, there was a pre-relationship history of stalking or domestic abuse. The second stage was ‘dominated by attempts to seek early and firm commitment’.¹⁴⁴ Coercive and controlling behaviours governed the relationship at stage three, with agreeing to the relationship ‘coincid[ing] with rights of control’ including tracking and stalking, sometimes invoked by suspicions of sexual infidelity.¹⁴⁵ These factors are prevalent in Jacob, Drury, and Brehmer. In Jacob, there was ‘some evidence of controlling behaviour, including the suggestion that the appellant had access to and was recording Ms Vilika's calls and messages’.¹⁴⁶ Drury had gone to McKenna's house after she had ended the relationship and killed her after seeing a man running from her house.¹⁴⁷ Commenting on Brehmer's manslaughter conviction, the Centre for Women's Justice stated: ‘We know so many women serving life sentences for murder after lashing out in fear of their abusers, yet this man who is described as using “grooming” techniques to exert coercive and controlling behaviour, escaped a murder conviction’.¹⁴⁸

All three cases highlight that excluding sexual infidelity per se will never address the gender imbalance in the law or prevent unmeritorious claims from reaching the jury. The question is not whether sexual infidelity should be excluded from consideration, but whether the allegations of infidelity are an indication of or represent an extension of coercively controlling conduct, embracing jealousy and male proprietorialness on the part of the perpetrator. In terms of cases where the victim kills in response to coercive control, the foregoing analysis demonstrates that from early in the relationship her world has become rapidly smaller by someone who is experienced in reducing individual capacity for action, and this is what contributes to her perception that there are no or limited means of escape available to her.¹⁴⁹

Stage four arises where there is a challenge or trigger threatening the coercer's control, for example, separation in Jacob, revealing the affair in Brehmer, and the belief that McKenna had slept with someone else in Drury. Drury claimed that he ‘loved the deceased and regretted what he had done’ after he killed McKenna,¹⁵⁰ however, Monckton-Smith challenges the idea of a bereft lover noting that it is loss of control over the relationship rather than the individual that concerns the perpetrator.¹⁵¹ This is readily visible in the case of Brehmer where his attempts to conceal his actions meant that the public were instructed not to go near Parry.¹⁵² This trigger, at stage four, is mostly related to threatened, factual or illusory separation with promiscuity being raised as a justification for the defendant's fatal response. ¹⁵³

Allowing sexual infidelity provocation as in Scotland continues to promulgate what Monckton-Smith describes as ‘prescrib[ing]… gendered order where women take a subservient position, as normal or natural, providing justifications for violence and homicide against women should the “natural order” of things be broken’.¹⁵⁴ As we have demonstrated, however, the position in England and Wales under loss of control does not fare much better. Excluding sexual infidelity provocation simply masks the criminal justice system's broader failure to address the coercive control that sits at the heart of most provocation/loss of control claims where the case involves (former) intimate partners. Cases may readily bypass the trial judge as gatekeeper in the absence of this broader contextual awareness of the relevance of sexual infidelity in respect of coercive control. In cases where there is some wider consideration of these factors, as appeared to be the case in Jacob, inappropriate cases may be readily filtered out by the trial judge as gatekeeper to the defence.

Stage five sees an escalation of coercive controlling tactics including monitoring, stalking and instilling fear in the victim. Monckton-Smith explains that perpetrators confiding in others about their behaviour, including trying to search for evidence of infidelity demonstrate not only a belief that the conduct is justified but also that the perpetrator's actions would not be condemned by their wider network.¹⁵⁵ It is not only the wider network here, but the criminal justice system's failure to protect that is relevant.¹⁵⁶ The position in Drury which engaged jurors in an assessment regarding whether the relationship was ongoing post-March 1998 and, if so, whether McKenna owed a duty of fidelity is not only artificial, but may further serve as a systemic failure to acknowledge the challenges women have in ending or escaping relationships with controlling men.¹⁵⁷ Though a history of domestic abuse was not raised in Drury, there was evidence that he created such a fear in McKenna that she ran from her house whereupon he slapped her face repeatedly before brutally and fatally assaulting her with a claw hammer.¹⁵⁸ Despite the relationship being described as ‘complicated…including passion and arguments’, it was submitted that it was one where Drury was regarded ‘justified in expecting [McKenna] to be faithful and that she had offered fidelity’.¹⁵⁹ Language which seems counterintuitive to recognition that allegations of infidelity may, when considered as part of the broader pattern of behaviour, amount to coercive control.

Drury highlights the challenges ending a relationship and exercising personal autonomy represent to women and more broadly the danger victims of coercive control are in when they attempt to leave.¹⁶⁰ In cases involving coercive control, where the victim has attempted to leave the relationship, the authority response has proved ineffectual, and then sexual infidelity provocation is left to the jury because he claims they were in a relationship, there is the potential for an insidious partial state sanction of his coercive controlling behaviours, including accusations of cheating, notwithstanding the Lord Justice General's observation that the law does not condone killing in response to adultery.¹⁶¹

Where the perpetrator is unable to re-establish control¹⁶² (e.g. where Jacob could not get his wife to stay and where Brehmer was unable to prevent revelation of the affair) a change in thinking or decision may be made regarding how to re-establish control at stage six.¹⁶³ This may include homicidal ideations, and threats of suicide, such as, Brehmer stabbing himself to get the victim's attention or as a common ploy in domestic violence, ‘I’ll kill myself if you leave!’ Monckton-Smith suggests that this change or decision often aligns with ‘feelings of injustice, entitlement to act’ and that others would agree.¹⁶⁴ Arguably, these feelings of injustice and a perceived entitlement to act underpin sexual infidelity provocation in Scotland, albeit as a partial excuse rather than a justification. The actions of the perpetrator are all designed to prevent her from exercising personal autonomy, and this reduces her options of escape.¹⁶⁵

There was frequent evidence of planning at stage seven in Monckton-Smith's study, including stalking, isolation, reviewing different ways to kill online, etc.¹⁶⁶ The final stage is homicide which may be of the (former) partner, or the partner and children. It may include suicide, be concealed, for example, as sexual misadventure or be followed by an immediate confession.¹⁶⁷ The violence does not correspond to the violence in the relationship, and a lack of violence in the relationship is often used to support a defence¹⁶⁸ that the perpetrator was not abusive and that they simply lost control (as in Jacob where the court noted that there was ‘no significant history of violence’; a problematic statement in itself!)¹⁶⁹ despite evidence of coercive control.¹⁷⁰ As Monckton-Smith suggests, the consistency with which the stages arise in these cases indicates that rather than being based on heat of passion, homicide in these cases is predictable following coercive control.¹⁷¹

Adopting a Social Entrapment Lens

For this reason, it is imperative that the law is reformulated so that in determining whether the partial defence should go to the jury in cases involving (former) intimate partners, trial judges carefully consider whether the partial defence claim is an extension of coercively controlling behaviour on the part of the perpetrator. As the Lord Justice General suggested in Drury¹⁷² ‘whatever the policy arguments may be one way or the other, they must be for consideration by the legislature’. In cases where the coercively controlled victim kills the abuse perpetrator, an appreciation of the delimiting and life-threatening circumstances in which she finds herself must be understood, and sexual infidelity should not be used to modulate the abuse experience.¹⁷³

The work of legal scholars across Australia and New Zealand has reemphasised the importance of earlier conceptual understandings of coercive control through the lens of social entrapment.¹⁷⁴ Tolmie and others suggest that women's culpability depends on whether the legal framework enables consideration of the broader circumstances of coercive control and the extent to which their circumstances are understood by decision-makers.¹⁷⁵ The social entrapment concept requires consideration of:

(a) the social isolation, fear and coercion that the predominant aggressor's coercive and controlling behaviour creates in the victim's life;

(b) the indifference of powerful institutions to the victim's suffering; and

(c) the exacerbation of coercive control by the structural inequities associated with gender, class, race and disability.¹⁷⁶

By emphasising the coercive control of the perpetrator, attention is drawn to the circumstances rather than a diagnosis which indicates a ‘lack of rationality’.¹⁷⁷ As noted, threats to disclose infidelity and/or accusations thereof may be used to isolate the victim from support networks and make the victim fearful of the potential response to socialising/texting friends.¹⁷⁸ This could form part of a pattern of behaviour amounting to coercive control.¹⁷⁹ Institutional responses also play a significant role in social entrapment.¹⁸⁰ At a practical level, this may include how effective responses are when an individual seeks support, for example, when the police were called in Jacob.¹⁸¹ This is important because inadequate support or distrust in the support available, as in Martin where she may have been suspicious of police and feared her children would be taken into care, can serve to further restrict the options available.¹⁸² The issue is not limited to the effectiveness of response but also barriers in accessing support, for example, in Brehmer, the fact that he was a police officer may have made it more difficult for those involved with him to access support.¹⁸³ Intersectionality relates to ‘the interconnected nature of social categorisations such as [inter alia] race, class and gender as applied to an individual or group which create overlapping and interdependent systems of discrimination or disadvantage’.¹⁸⁴ These may exacerbate coercive control, for example, ‘immigration restrictions and lack of knowledge of rights’,¹⁸⁵ ‘experience of institutionalised racism’,¹⁸⁶ or fear that children will be left with the abuser can all prevent individuals from seeking support.¹⁸⁷ For example, Martin is described as being ‘from a Black working-class community in Liverpool where there is a general mistrust in the police and reporting can be seen as “grassing.”’¹⁸⁸

A broader appreciation of the social entrapment concept would assist in both jurisdictions in determining which cases ought to be left to fact-finder evaluation in terms of the role of the trial judge as gatekeeper. This could be through a combination of legal reform as we propose below, and in the interim in England and Wales an extension of the non-exhaustive list of factors to be considered when leaving the defence to the jury as outlined in Goodwin,¹⁸⁹ and/or amendment to the Crown Court Compendium as has been advocated in relation to self-defence.¹⁹⁰ Cases involving evidence of coercive and controlling behaviour should invoke consideration of how the behaviour restricted the coercively controlled victim's capacity for action; the effectiveness or otherwise of any authority response to that conduct; and, any structural inequalities that the perpetrator has exploited to control the victim or impact on the safety options available to the victim.¹⁹¹

Given the prevalence of perceptions and/or allegations of sexual infidelity in provocation/loss of control claims involving (former) intimate partners, we advocate that beyond the first element of the social entrapment concept which focuses on the abuser's behaviour, that guidance is provided which requires specific consideration of whether sexual infidelity represents a means of control or being controlled. Considered in this light, it is difficult to ignore killings motivated by sexual jealousy and envy and/or those where coercively controlled victims felt there was no way out other than to meet the abuse with violent resistance.¹⁹² Indeed, Jacob's claim was rejected given broader consideration of his behaviour in the lead-up to the killing including allegations of sexual infidelity, the authority response the week before and recognition that considering those behaviours a woman may feel the need to use a knife to defend herself.¹⁹³ Applying a social entrapment lens to Brehmer would involve consideration of his attempts to control his lover by, according to his own admission, stabbing himself to get her attention,¹⁹⁴ recognition that he was a police officer¹⁹⁵ and that his profession placed the victim on an unequal footing in terms of reaching out for authority support.¹⁹⁶ In Martin's case, the surrounding circumstances including repeated arguments regarding infidelity,¹⁹⁷ routine rapes,¹⁹⁸ coercive control,¹⁹⁹ and reluctance to disclose to the authorities for fear that their children would lose both parents are all contextually relevant factors.²⁰⁰

The social entrapment concept emphasises the importance of engaging in an assessment of coercive control, its structural manifestation, and the broader systemic failures which contribute to the tragic outcomes in these cases. A broader appreciation of these factors alone, however, would not remedy the ills of the ‘current partial defence of loss of control [which] is failing’.²⁰¹

Qualifying Trigger: Domestic Abuse

Loss of Control: A Lost Cause?

The language of the loss of control defence perpetuates the ‘crime of passion’ narrative.²⁰² Interpretations of loss of control have rightly been described as ‘confused’.²⁰³ Whilst a neutral view of losing control has been implicated²⁰⁴ the courts continue to adopt phrases, such as frenzied, going berserk, etc., aligned to crime of passion discourse, the language of which is misleading since such killings generally have little to do with passion and more to do with control.²⁰⁵ Definitionally ‘loss of self-control’ and when such loss is justifiable are socially constructed excuses and behavioural manifestations’.²⁰⁶ The loss of self-control requirement is ‘cognitively twinned with what men have been permitted to do in anger' and limits availability of the defence ‘for women who, in fear of abusive partners, kill’.²⁰⁷ In effect, ‘she who kills out of fear, with all its despair, hopelessness, sorrow, helplessness, anguish and trauma, is still required to “lose self-control.”’²⁰⁸ In practical terms, as Sullivan and others observe, the consequence is that in identical circumstances with the same qualifying trigger, D1 who lost self-control would be entitled to the partial defence whereas D2 who retained self-control would not.²⁰⁹ In this respect, the loss of self-control requirement which favours men,²¹⁰ and did not feature in the Law Commission's recommendations prior to reform²¹¹ should never have formed part of the partial defence. The emphasis on acting in passion in response to sexual infidelity in Scotland similarly continues to promulgate the misleading ‘crime of passion’ narrative north of the border.²¹²

It is also worth noting that whilst the loss of self-control does not need to be sudden it is delimited by the requirement that the defendant was not acting in a ‘considered desire for revenge’.²¹³ This ostensibly aligns with the intention underpinning the defence which was ‘primarily intended to accommodate women who in fear of violent partners delayed their self-defensive reaction in order to avoid death or serious harm which would likely follow if they attempted to defend themselves upon the moment’.²¹⁴

Fear of Serious Violence

The fear of serious violence qualifying trigger has been criticised for prioritising physical violence and threats thereof over the myriad ways domestic abuse and coercive control manifest, and for being informed by ‘an equality of arms precept’.²¹⁵ The ‘fear trigger excludes the defendant abused by psychological coercive control, where the threats are not of physical harm, but directed at psychological injury’.²¹⁶ Though we are inclined to the view that judicial consideration of the broader circumstances of coercive control/domestic abuse could highlight the extent to which the risk of violence associated with coercive control could meet this trigger the pre-emphasis on physical violence has meant that this alternative interpretation has not been realised. Lady Justice Hallett, in Challen,²¹⁷ explained that coercive control ‘is not a defence’ but is ‘relevant in the context’ of other defences.²¹⁸ There is, therefore, an aperture through which a broader understanding and appreciation of the impact of the insidious nature of coercive control might be relevant to the existing loss of control defence.²¹⁹ Though the anger or seriously wronged trigger, considered below, has rightly been described as ‘apposite’²²⁰ in terms of the relevance of coercive control to a loss of control claim, recognition that the entrapment experienced in coercive control cases increases the risk of serious/fatal injury due to inter alia fear and a deprivation of the means of escape should support a broader interpretation of fear of serious violence in the context of coercive control.²²¹ As Monckton-Smith identified, a challenge to the order of the relationship puts women most at risk of lethal force including in cases where there has not been previous physical violence.²²²

The ‘Anger Trigger’

In preference to the fear of serious violence trigger, commentators have noted the potential utility of what has colloquially been referred to as ‘the anger trigger’ in the context of domestic abuse victims who kill.²²³ Interestingly, the word ‘anger’ does not feature at all, instead, the provision requires, ‘A thing said or done or both which constitute circumstances of an extremely grave character and induced a justifiable sense of being seriously wronged’.²²⁴ Parallels can be drawn across the breach of duty referred to in Drury and justifiable anger under sexual infidelity provocation, and the anger trigger. A key rationale for the government's attempt to exclude sexual infidelity in England and Wales from the loss of control defence was due to concern that it would satisfy this limb.²²⁵ Livings suggests that it would be preferable to describe the provision as the ‘seriously wronged’ trigger which would potentially serve to broaden the ambit of the defence.²²⁶ Herring explains that ‘domestic abuse should readily be regarded as a very serious wrong’.²²⁷ In cases where sexual infidelity is used as a means of control, that should also be relevant to the seriously wronged trigger rather than as a contextual factor only.²²⁸ Cases such as Brehmer, however, continue to demonstrate that the provision is heavily weighted in favour of men angry at women exercising personal autonomy. Significant contextual guidance on social entrapment is required within legislation to counteract the misleading crime of passion discourse so firmly rooted in loss of control.²²⁹ The question remains, why there is not a specific partial defence for victims who kill in response to domestic abuse. Given that domestic abuse now has a statutory definition both North and South of the border, it is apt to consider how cases of violent resistance ought to be addressed as the Scottish Law Commission outlines in chapter 13 of their Discussion Paper, and as fundamental to the work of the Law Commission in England and Wales.²³⁰ In direct response, we recommend that any new partial defence operates where protection was in response to domestic abuse.

Qualifying Trigger: A Gross Breach of Trust

It is our contention that there exist types of extreme breach of trust (‘gross’ conduct) in which an actor might engage which may be separate and distinct from abusive controlling or coercive behaviour that would trigger another individual to kill them.²³¹ There may indeed be overlap across gross breach of trust and coercive and controlling behaviours, and we envisage that our partial defence could involve one or a combination of qualifying triggers. Multifarious factors may give rise to circumstances of duty and an expectation of trust, however, such a breach must reach the threshold of being so extreme that it constitutes a gross breach of trust worthy of the law's compassion. Clough expressed sexual infidelity as a breach of trust, and this resonates with the position in Drury.²³² Yet as Clough articulated there ought to be wider contextual aggravating factors that elevate the breach to the level that it is in Clough's words ‘great’, such as domestic abuse and impregnating a lover.²³³ Any review of loss of self-control should be judged by contemporary social standards.²³⁴ As previously stated, killings prompted by male proprietorialness, ‘sexual’ jealousy, ‘envy’ and premeditation by a cuckolded partner ought to be excluded from the ambit of this concessionary defence, but in equal measure cases of ‘gross breach of trust’ regarding sexual infidelity embracing excessive taunting, sexual humiliation and a spontaneous fatal blow, which depending on the circumstances may or may not be indicative of coercive control, ought in appropriate cases to be allowed for consideration by fact-finders.²³⁵ These reasons are insufficient to prevent the killing from being wrongful, but sufficient to reduce the wrongdoing (emotional response) by an amount that would warrant recognition from the legal system.²³⁶ In this classification, the reduction from murder to culpable homicide (voluntary manslaughter) is viewed through a partial justificatory and partial excusatory framework.²³⁷

If the defence is articulated via the legal prism of partial justification the primordial consideration is the provoker's conduct and whether it may be stigmatised as wrongful, untoward or egregious in the first place. On the contrary, if a sexual infidelity killing is viewed as partially excusatory in nature then, via this kaleidoscope, the pre-eminent examination attaches to the provokee, and whether the cuckolded or taunted defendant lacked personal culpability for some (at least partially) valid reason.²³⁸ Rather, we assert that the lodestar of this heat of passion defence ought to be whether this mitigation can ever be appropriate in terms of the compartmentalised level of taunting and humiliation (a gross breach of trust that denigrates the essence and epicentre of any intimate relationship) producing consequential fatal action of a spontaneous nature.²³⁹ The extreme nature of the gross breach of trust may in some limited circumstances be regarded an inappropriate, but partially justified and partially excused conduct.

Part Justification – Part Excusatory Standardisations

A partially justificatory – partially excusatory lens to sexual infidelity killings, and contextualisation of gross breach of trust as a partial defence (or otherwise), may be highlighted by adaptation of five different postulations for review. These postulations, drawn from hypothetical and actual case derivatives, are introduced to chart the effective boundaries of any gross breach of trust trigger (or otherwise). They seek to highlight the potential (irr)relevance of sexual infidelity in cases involving coercive control and those in which coercive control does not arise. Different gradations may apply within ‘things done or said that constitute sexual infidelity’, and consequentially that on occasions a more nuanced approach than currently applies in Anglo-Scottish law needs to be deconstructed and adopted²⁴⁰:

D and V had been in a relationship for 18 months when V left because of D's possessiveness and jealousy. Shortly thereafter, V commenced a relationship with X. Upon learning that V was in a relationship with X, D began to stalk V. One night when D saw X leave V's house, he broke in using a crowbar and beat V to death with it (Separation Cases and Sexual Jealousy Killings).

The hypothecate presented above resonates with our earlier consideration of the determination in Jacobs,²⁴¹ engaging separation and male proprietorialness. By including current and former partners, section 1 of the Domestic Abuse (Scotland) Act 2018 recognises that the risk to victims increases when they attempt to exercise personal autonomy by leaving the relationship. The definition in England and Wales under section 2 of the Domestic Abuse Act 2021 not only recognises current and former partners but also broader familial relationships. We have not restricted our proposals, below, to current and former intimate partners despite the fact that the government have previously expressed concern that the definition would be too broad in the context of defences,²⁴² and we suggest that there ought to be a wider debate on the appropriateness of statutorily recognising domestic abuse across a variety of relationships whilst refusing to acknowledge these relationships in the context of specific defences. The partial defence ought not to be available where D kills in response to another individual exercising personal autonomy by ending a relationship: the partial excusatory framework mandates no reduction in culpability or diminution in wrongdoing.²⁴³ Interestingly, and contradictory to this perspective, a number of reform states in the United States, adapting manifestations of the Model Penal Code standardisation, have liberally extended the heat of passion defence in this regard.²⁴⁴ Provocation has been legitimated where any inculcated element of sexual infidelity or relationship separation is adduced.²⁴⁵ The polemics of the United States, as Nourse,²⁴⁶ Rozelle²⁴⁷ and Rosenberg²⁴⁸ have expertly reviewed, have been to inappropriately extend the loss of control defence way beyond the parameters of any appropriate ‘concessionary’ defence. Jurors, as moral arbiters, and without normative iteration by the trial judge of the legitimate constraints of the defence, have been presented with situations for consideration far beyond heat of passion infidelity, and within the different strictures of simple relationship breakdown, termination of intimacy, departures from shared accommodation, and any kind of ‘disrespectful’ flirting with another:

Reform has permitted juries to return a manslaughter verdict in cases where the defendant claims passion because the victim left, moved the furniture out, planned a divorce, or sought a protective order. Even infidelity has been transformed under reform's gaze into something quite different from the sexual betrayal we might expect – it is the infidelity of a fiancée who danced with another, of a girlfriend who decided to date someone else, and of the divorcée found pursuing a new relationship months after the final decree.²⁴⁹

A parent D stabs V to death on discovering V sexually abusing their child (Third Party Provocation)

Whilst it is unclear whether third-party provocation exists in Scottish law,²⁵⁰ we suggest it ought to apply in synchronicity with our novel domestic abuse and gross breach of trust, standardisation set out below. Illustratively, it will apply where an intimate or very close relationship nexus is determinative as in Donnelly:²⁵¹

[I]n all cases relied on for supporting a tacit approval of third party provocation, the person assaulted stood in a very close relationship to the individual who reacted.²⁵²

The emphasis herein is on the ‘special relationship’,²⁵³ which increases the emotional response and provides a part-justificatory/part-excusatory contextualisation for the killing.

D killed her husband V with at least 20 blows of a hammer. The marriage had endured 31 years. D alleged that V anally raped her and sexually assaulted her, made egregious and continual demands of her, and created an atmosphere of subservience, and reinforced by threats. V had caused distress to D through his unfaithfulness, visits to brothels, and his demeaning her in front of family and friends. The couple had recently reunited after a period of separation and were preparing for a trip abroad together. During the course of the preparations, D checked V's phone and realised that he had recently rung another woman and that this relationship was enduring contrary to V's earlier denials. D fatally attacked V with a hammer (The Sally Challen Case²⁵⁴ And Controlling/Coercive Behaviour).

The above postulation is reflective of our earlier discussion of Martin, where a social entrapment lens ought to apply to deconstruct the relevance (or otherwise) of sexual infidelity within the broader remit of controlling/coercive behaviour and domestic abuse. It is our contention, as set out below, that cases of violent resistance in such circumstances ought to be properly addressed in Anglo-Scottish law by remedial legislation.

D is devastated when her husband, V, with whom she has been involved in a committed relationship for 15 years, has embarked on an affair with her best friend (A). D had regularly confided in A regarding V's behaviour. A had encouraged D to leave V on several occasions, and on one occasion she lived with A for several months after D and V had argued. Shortly after V convinced D to return home promising that he would undertake counselling and change. D found out that V and A had been having an affair by text message from a work colleague. The text message included screenshots of intimate pictures on A's snapchat story in the matrimonial home. D returned home to find V and A in the kitchen together. When D confronted V and A about the screenshot, they both laughed, and D said, ‘A told me everything you said about me, and no one believes your lies. I love A and we will make sure that you never see the kids again. We are going to show everyone that you are nuts and unfit to be a mother’ A picked up a knife from the chopping board, and fatally stabbed V (Extreme Breach Of Trust And Taunting).

D loses self-control and kills V when V (D's husband) admits having had long-standing affairs with (and made pregnant) each of D's three 16–18-year-old daughters by a previous marriage (Gross Humiliation and Extreme Breach of Trust).²⁵⁵

The postulations in 4 and 5 above are presented to indicate that a new perspective ought to be applied sui generis in Anglo-Scottish law to sexual infidelity killings. The conduct of V, albeit not tantamount to coercive/controlling behaviour (domestic abuse) per se within our purposive adaptation, nonetheless may equate to a ‘gross breach of trust’ beyond simple disavowal of the intimate relationship. The gross breach of trust may denigrate the essence and epicentre of an individual's intimate relationship. As such, it may partly justify the emotional response of the defendant to the extent that culpability/wrongfulness is partly ameliorated. There is a scalar reasonality here with English common law constitutive definitional elements of gross negligence manslaughter and invocation of the Bateman²⁵⁶ test for liability (or otherwise). Not in the directional sense that the conduct of V that provokes D needs to be so bad that it ought to be ‘criminal’ and beyond compensation (civil law) to provide a ‘warranted excuse’ for the fatal action of D. This trammelled limitation has been propounded by some US commentators.²⁵⁷ Rather, the ‘grossness’ and extreme nature of the breach of trust/humiliation/excessive taunting on the part of V provides a partly exculpatory rationale for the detonative reaction by D.²⁵⁸

Gross Breach of Trust Distinct From Proprietorialness and Sexual Jealousy

In general terms, verbal taunts of infidelity will rarely be sufficient to facilitate a concessionary defence, but circumstances of a most extreme and exceptional character may on occasions apply. The above postulations iterate that a loss of control in response to the actions of a faithless lover, in some extreme cases, has much more to do with the gross breach of trust engaged, and fundamental violation of a relationship, rather than proprietorial instinct or sexual jealousy.²⁵⁹ Sexual infidelity should never ‘be an excuse or justification for murder, but that is quite a different thing from saying …. that the impact of another's sexual infidelity on a person's thoughts, actions and emotions should be disregarded entirely’.²⁶⁰

In tandem with domestic abuse as a qualifying trigger for partial exculpation, as purposively interpreted below, we propose a further novel trigger predicated on a gross breach of trust which caused D to have a justifiable sense of being seriously wronged. The term ‘gross’ itself draws upon the English Law Commission's earlier recommendation for a partial gross provocation defence,²⁶¹ but where the term remained relatively undefined, we suggest a particularised interpretative typology. The term ‘gross’ in our contextualisation embraces a serious and fundamental violation of a close personal relationship via either oscular or verbal articulation. It engenders conduct on the part of V that represents an extreme breach of trust, humiliation/excessive taunting of D rather than proprietorial instinct or sexual envy or jealousy.²⁶² As framed, this novel partial defence is part justificatory and part excusatory in terms of the detonative emotional response of the defendant.

The criminal justice system, as stated, is familiar with this approach to the term ‘gross’ in the context of gross negligence manslaughter, albeit in the purview of fact-finders addressing the ‘gross’ – criminality (or otherwise) of actor conduct. This interpretation of the nomenclature of ‘gross’-ness of individual conduct highlights the importance of aligning partial defences to murder (provocation) with state perspectives on criminality and punishment, reflective of contemporary social mores, but circumventing any suggestion that an accused's conduct must actually be criminal for accused's emotional response to be justifiable. It also places a moral and social barometer test for liability or partial exculpation firmly at the heart of the defence. In effect, it provides judges and jurors (as moral arbiters) with discretion in trammelled, but legitimate circumstances, in assessing whether there was sufficient provocation to partly justify – partly exculpate D's actions.²⁶³

The Householder Defence and Provocation by Violence

Our reform recommendations sit in a broader context of the Scottish Law Commission's consideration of whether provocation in response to violence ought to be amended, whether to introduce a partial excessive self-defence provision and whether to introduce a defence equivalent to the householder defence operating in England and Wales but specifically in relation to defence of property to which the defence in England and Wales does not operate.²⁶⁴ The first limb of provocation in Scotland operates where the defendant lost control in response to physical violence, and the accused's conduct is not grossly disproportionate to the provoking act.²⁶⁵ The accused ‘must have been attacked physically, or believed they were about to be attacked’, losing his temper/self-control and retaliating instantly in hot blood.²⁶⁶ The response must be reasonable or reasonably proportionate and not grossly disproportionate to the provocative act.²⁶⁷

It is important to note that McPherson identifies that the first limb of the partial defence does not appear to be being misused by men in intimate partner homicide cases, and urges caution in considering whether to reform this element of the partial defence.²⁶⁸ In the context of women who kill the abuse perpetrator, the challenges associated with self-defence mean that provocation is the main defence used.²⁶⁹ It has been suggested, therefore, that provocation in response to violence may render an excessive self-defence provision unnecessary.²⁷⁰ Not all arguments are one way,²⁷¹ however, and we suggest that should a defence equivalent to the householder defence be enacted that careful consideration should be given to how provocation would sit alongside it.²⁷²

The householder defence in England and Wales bears striking similarities to the first limb of provocation in Scotland though it provides a full defence and sets a lower threshold test, but only in the context where the defendant honestly believed they were defending themselves against an intruder.²⁷³ In householder cases, a full acquittal will be granted where force is necessary and not grossly disproportionate in the circumstances as the defendant believed them to be.²⁷⁴ There is no need for the defendant to have lost self-control as in Scotland, and whilst mistaken belief will not negate either (partial) defence, the partial defence in Scotland requires a reasonable belief.²⁷⁵ These differences in the defences suggest that the householder defence might not sit cogently alongside the first limb of the provocation defence and the differences raise the question whether the circumstances of householders should be elevated above all other categories of defendant acting in self-defence. Where existing provocation might operate in the alternative, it is questionable whether it ought to be easier to claim a full defence rather than a partial defence based principally on the fact that the case involves a trespasser within the home.

Related questions have been posited in the context of the householder defence in England and Wales, with the government recently rejecting cogent proposals by the Prison Reform Trust to extend the householder defence to cases involving victims of domestic abuse who respond with violent resistance against their abuser.²⁷⁶ Presently, the householder defence may only apply in such contexts in a limited number of cases where the abuser enters the domestic abuse victim's home as a trespasser.²⁷⁷ Parliament, however, rejected the Prison Reform Trust proposals on grounds that a householder confronted by an intruder is acting ‘on instinct’ whereas in ‘domestic abuse cases, the response may not be a sudden instinctual one but may follow years of physical and/or emotional abuse’.²⁷⁸ The Centre for Women's Justice recently resubmitted the proposals under the Victims and Prisoners Bill 2023.²⁷⁹ It is important that these recommendations are acted upon in England and Wales given the challenges women face in claiming self-defence.²⁸⁰ Based upon the experience in England and Wales, the Scottish Law Commission have the benefit of being able to consider the householder defence and the Centre for Women's Justice proposals in tandem, albeit that the emphasis is on homicide rather than general defences at this stage.²⁸¹

Conclusion: Reform Recommendations

Sexual infidelity provocation operating as one of only two bases for the partial defence in Scotland is anachronistic and ought to be abolished. The partial defence, however, should not be replaced with the loss of control defence operating in England and Wales which is currently under review. Significantly, the sexual infidelity exclusion under the loss of control defence represents a smoke and mirrors attempt to address gender disparity in the law without getting to the nub of the issue.²⁸² The sexual infidelity prohibition does not address sexual jealousy, envy or male proprietorialness and is in many instances ineffectual.²⁸³ More importantly, however, the sexual infidelity exclusion does not address the reality that allegations of (actual or perceived) infidelity may be used as a means of coercive control.²⁸⁴ The exclusion of sexual infidelity in cases where a victim of coercive control uses violent resistance in response at best restricts consideration of an essential part of the narrative in cases, and at worst is used to modulate the experience of the victim by feeding into jealous woman stereotypes.²⁸⁵ What is mandated is a shift away from the misleading crime of passion narrative with its overemphasis on sexual infidelity and anger to a revised focus on coercive control in which allegations of (actual or perceived) sexual infidelity may be viewed as a means of delimiting the victim's capacity for action, by reducing access to networks, fear regarding threatened disclosures and the impact on family members, including children.²⁸⁶ In light of these considerations and drawing on social entrapment theory, we advance novel and remedial legislation for consideration. We have highlighted in bold the areas where relevant clauses would need to be selected and applicable to the jurisdiction under consideration. For example, section 3 of our proposed defence should be read as referring to the legislation applicable to the relevant jurisdiction, that is, the Domestic Abuse (Scotland) Act 2018 is the applicable reference for Scotland and the Domestic Abuse Act 2021 is the applicable reference in England and Wales.

Where a person (‘A’) kills or is party to the killing of another (‘B’), A is not to be convicted of murder if: -

the killing is in response to a qualifying trigger.

and, a person in the circumstances, with an ordinary degree of tolerance and self-restraint, might have reacted in the same or a similar way to A.

The qualifying triggers are: -

where protection was regarded necessary in response to domestic abuse by B, or

a gross breach of trust that caused A to have a justifiable sense of being seriously wronged.

Domestic abuse in subsection (2(a)) takes the definition in section 2 of the Domestic Abuse (Scotland) Act 2018/section 1 of the Domestic Abuse Act 2021.

The relationships/personal connections to which the definition of domestic abuse applies are outlined in sections 1 and 5 of the Domestic Abuse (Scotland) Act 2018/ sections 2 and 3 of the Domestic Abuse Act 2021.

Where domestic abuse is in issue, the following criteria are to be considered in assessing circumstances in subsection (1)(b)-

the extent to which the coercively controlling behaviour limited A's capacity for action;

the effectiveness or otherwise of any authority response to that conduct;

any structural inequalities that B used as part of the coercively controlling behaviour or which restricted A's safety options.

where sexual infidelity is in issue, consideration should be given to whether allegations of sexual infidelity evidence control or being controlled in assessing circumstances in subsection (1)(b).

On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution makes the jury sure that it is not.

For the purposes of subsection (7), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could be sure that the defence might apply.

In directing the jury in cases where domestic abuse is in issue, the trial judge should direct jurors in accordance with subsection (5).

In directing the jury in cases where sexual infidelity is in issue, the trial judge should direct jurors in accordance with subsection (6).

A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of culpable homicide/manslaughter.

The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.

Footnotes

Acknowledgements

We thank Professor Susan Edwards (Northumbria University) and the anonymous reviewers for their comments on earlier drafts of this work. The usual caveats apply.

Authors’ Note

We use the term victim for those who have suffered domestic abuse throughout this article since victim articulates their status in law. We invite those with preferred terminology to read that into this article. We also alternate between use of accused and defendant since the former is used in Scotland and the latter is used in England and Wales.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.