Tuesday, 4 January 2011

Men's Justice for Women

I am not sure of the source of this article orginally published on the No More Prison website. I suspect it may have come from Justice for Women.
My name is Donna Tinker. I am a 30-year-old woman currently serving a life sentence for taking the life of the man I loved. Sadly my story is a very familiar one. After years of being in this abusive relationship, on the 13th June 1999, he became a victim of this relationship too. The depth of pain and remorse I feel for my husband dying by my hand is something I am incapable of putting into words. I never wanted or meant for this to happen. It started as just another argument that moved as it always did on to him hitting me. This night in particular he'd kicked me in the face and punched me. But then he picked a hot iron up, and I panicked. I was just trying to stop him hurting me anymore. I couldn't and still can't make sense of my trial. No witnesses were called for my defence. I trusted my legal team, as in a situation like this you have no choice but to put your trust in them. Shouldn't I have been advised that witnesses were needed so they could establish the nature of the relationship between my husband and myself? Wouldn't this have been crucial information the jury should have heard?
Donna Tinker
The Commission on Women and the Criminal Justice System, set up by the charitable Fawcett Society a couple of years ago made the case that women are increasingly turning to serious and violent crimes because they have been brutalised by violence against them, and that they turn to crime for different reasons from men, and that the criminal justice system is failing to tackle this. A trend was revealed of women being forced into drug dealing by abusive partners they feared, while for others offending was closely linked to a history of violence against them. Murder, the intentional and unlawful killing of another human, carries a mandatory life sentence. In some cases the killing of another human is 'justified' in which case the charge of murder is dropped and the defendant set free. In other cases the killing is 'excused' but not totally justified. In these cases the charge of murder is reduced to manslaughter and the judge decides the sentence. The sentence can range from life imprisonment to a community service order. However, the law concerning murder in the UK is inherently gendered. By looking at the legal defences to murder we see how they represent a male understanding of the crime and men's experiences of killing.

There are three main defences to a charge of murder: Self defence is a full defence and results in an acquittal. Self defence can be argued if the defendant can show that their life was in imminent danger. However, in claiming self defence it must also be shown that 'proportional force' was used. So, if the person killed were attacking with their bare fists the use of a knife would be disproportionate. This defence ignores the physical discrepancies between men and women. It also ignores the fact that many women are in fear because of their past experiences of violence from the man.

Diminished responsibility is a partial defence and reduces a murder charge to manslaughter. To argue diminished responsibility the defendant must prove that their mind was impaired by an abnormality at the time of the killing. This defence shifts the focus from a man's violence to the woman's state of mind. Diminished responsibility medicalises women's actions and implies that had their mental faculties not been impaired they would have continued to be a willing punch bag. It can include the argument that the woman was suffering from 'Battered Woman's Syndrome' which is based on two fundamental premises: a cycle model of violence and 'learned helplessness'. For BWS to apply a woman must have been through this cycle at least once, and a cluster of symptoms develop through which the syndrome can be diagnosed. These include: low self-esteem, self-blame, anxiety, depression, fear, suspiciousness and loss of belief in the possibility of change. BWS is recognised as a formal clinical syndrome within post traumatic stress disorder. Lawyers frequently ask if there is a 'syndrome' or very specialised research evidence which will demonstrate a particular point. Both rest on medicalising and particularising what is an extremely common social event; the use of physical and sexual violence by men against women and children. The language in many of the US cases shows that courts understand BWS as a new and excusable form of female irrationality. Alarmingly BWS is increasingly being used in criminal and civil cases to establish what constitutes a battered woman. If women do not fit the model then it is being argued that they were not in fact abused. It has been argued that BWS should not be considered a medical abnormality, but a mental state which is normal in particular circumstances, relevant to all defences including self-defence and duress.
 
Provocation is also a partial defence. To use the defence it has to be shown that the provoking act was such that a 'reasonable man' would have responded as the defendant did under the same circumstances. Further, it must also be shown that the killing was the result of a sudden and temporary loss of self-control. The defence of provocation ignores the history of violence experienced by women by focusing only on the events immediately prior to the killing. There is no consistency in the application and understanding of the defence when it is used by women. This is because it is based on the idea of a man being provoked when another man insults his 'honour'. The immediate retaliation expected of the offended man ignores the particular experiences of women subjected to male violence.
 
As male violence against women continues to be a phenomenon in itself, infidelity remains the most frequent excuse for killing of wives and girlfriends. Men who kill their wives or girlfriends or ex partners and plead diminished responsibility or provocation nearly always walk free or get short sentences for manslaughter.
  • In 1991 Joseph McGrail was tried in Birmingham for the murder of his wife. He pleaded provocation on the basis that his wife was an alcoholic and swore at him. He killed her by repeatedly kicking her in the stomach. At the trial the judge commented ..."this lady would have tried the patience of a saint", he gave him a two year suspended sentence.
  • In 1995 Brian Steadman was jailed for three years after he hit her 13 times with a hammer, he pleaded diminished responsibility due the his wife's constant nagging.
  • In 1997 Joseph Swinburne killed his wife by stabbing her eleven times when she told him she was leaving him for another man. He was convicted of manslaughter and sentenced to 200 hours community service.
  • In 1992 Judge Dennison gave Bisla Rajinder Singh, an 18 month sentence suspended for one year for the manslaughter of his wife on the grounds of provocation. The judge told him "you have suffered through no fault of your own....your wife was a domineering lady with a sharp and persistent tongue".
  • Lucy Kellet was preparing to leave Oliver Kellet after years of abuse. As she as waiting for the removal van to take her to her new home he stabbed her repeatedly with a bowie knife. He pleaded manslaughter on the grounds of diminished responsibility and was given 3 year probation.
Compare these with the following women

  • In 1989 after 10 years of severe violence against her Kiranjit Aluwhalia threw petrol over her husbands feet and set it alight whilst he was sleeping, he died some days later. She was arrested and charged with murder, she was found guilty and sentenced to life imprisonment.
  • In 1992 Zoora Shah snapped after 12 years of physical and sexual violence when her partner turned his attention to her eldest daughter. She poisoned him and was convicted of murder, sentenced to life with a minimum of 20 years, she is still in prison.
  • In 1993 Josephine Smith shot her husband after many years of violence when he threatened to track her down and kill her and their three children if she left him. She was convicted of murder and sentenced to life with a minimum of 12 years.
  • In 1989 Malcolm Thornton, an alcoholic, threatened to kill his wife Sara and her daughter in their sleep, he taunted her with a knife. The police had been called to the home on numerous occasion throughout their relationship by Sara because of his attacks on her and he was in fact due to appear in court on an assault charge 10 days after he died. Sara feared for her own and for her daughter's life. She stabbed him once and called an ambulance. She pleaded guilty on grounds of diminished responsibility, she was found guilty of murder and sentenced to life imprisonment.
  • For four years Peter Iles persecuted Janet Gardner using violence, threats and harassment. On one occasion he tried to cut her throat, he beat and kicked her and burnt her with cigarettes. During the attack which led to his death he grabbed her round the neck and started beating her head against the kitchen doorway. Janet grabbed a knife and stabbed him seven times. She was cleared of murder but found guilty of manslaughter, and sentenced to five years in prison.

Margo Wilson and Martin Daly's work on domestic homicide has used data sets from a number of industrialised countries. One of the most important findings from their research is that leaving an abusive partner is actually the most dangerous thing women can do. Women have always known this, it is professionals who have taken an extremely long time to understand that well-founded fear is one of the most potent reasons why women do not leave violent men. Wilson and Daly also calculated that on the basis of recent figures the sex ratio for spouse killing is that for every 100 men who kill wives 23 women kill husbands. Women who kill have often experienced repeated and life threatening violence, with a greater frequency of coerced sex. Almost all the women had also attempted to leave and elicit the support of other agencies in their struggles to end violence. Many talk of reaching a point where they believe only one of them can survive. The basic question which should be addressed in such cases is: was the woman's use of violence in this particular circumstance reasonable given her size, strength and perception of danger. In terms of battered women who kill more appropriate reforms would be extending remit of self-defence.

The failure of murder defences to adequately reflect women's actual experiences is the reason why some feminists and women's rights activists are campaigning for a new defence to murder - self-preservation. Self-preservation is intended as a partial defence, and although not gender specific it is revolutionary in that it takes the circumstances which women commonly find themselves in (as opposed to those of men) as its point of departure. The proposed defence is a partial defence, reducing a charge of murder to manslaughter. It reflects the experiences of anyone subjected to repeated assaults or sexual abuse and acknowledges their responses as rational within an intolerable situation.

The proposed self - preservation defence:

It shall be a defence to a charge of murder, reducing the charge to manslaughter, if:
  • the deceased person had subjected the defendant or another person, with whom the defendant was at the time of the deceased person's death in a familial relationship, to continuing sexual or physical violence and
  • the deceased person was at the time of their death or had at any time been in a familial or intimate relationship with the defendant or with the person as described in (a) above and
  • the defendant believed that, but for their action, the deceased person would repeat the violence as stated above, so that their life or that of the person as described in (a) above was in danger.
In Section 1 above: 'Familial' means related, cohabiting or living in the same household 'Continuing' means any act of violence as defined below on more than one occasion 'Violence' means any act that would constitute an offence under the Offences Against the Person Act 1861, the Sexual Offences Act 1975 (as amended), or the Protection from Harassment Act 1997 'Intimate' means any sexual relationship not included in the definition of 'familial' 'Belief' must be reasonable in the context of ongoing abuse and violence.

It shall be for the defence to raise the issue where the circumstances are as outlined in Section1 above, and it will then be for the prosecution to prove that Section 1 does not apply.

The response of the Home Affairs Select Committee in rejecting the proposal as a useful way forward was that such a concept was unknown in English law, and that it suggested that such actions by abused women might be rational implying that mad women can be understood, bad women punished, but women as rational and creative survivors don?t exist. BWS plays into this invisibility by only allowing women to occupy the position of depressed and despairing victim. A couple of successes have been made on certain points in the cases of women appealing against their convictions for assaults on abusive partners:

Cumulative provocation at the hands of abusive partners can be considered with the final act of provocation; the judiciary has moved over the last few years in its interpretation of "provocation", influenced by feminist campaigners.

The characteristics of the "reasonable man" concerns the aspect of the defence of provocation, where the jury are directed to consider the characteristics of the "reasonable man". This is an area of law that has expanded over the last twenty years. The "reasonable man" is the yardstick by which the jury is supposed to consider what is reasonable behaviour, as opposed to an unreasonable reaction to an act of provocation.

The courts are also indirectly recognising the relevance of a long term history of abuse back to childhood through looking at so-called reasonable reactions to abusive partners where the act of provocation is somehow connected with such characteristics. The judiciary are finally accepting the argument that domestic violence and abuse are sufficient grounds for provocation. However, it is no where near convincing that even with the creation of new precedents the law will really work for women or be in any way "fair". Present defences largely ignore male violence.

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