Legal change and legal inertia: understanding and contextualising Scottish cases in which women kill their abusers

Abstract

Significant legal and policy change related to domestic abuse has been evident in Scotland over the last 40 years. Despite this, no change has occurred in relation to cases in which women kill their abusers. This article maps the significant changes which have occurred in Scotland in relation to domestic abuse, linking these to the development of the Scottish women’s movement and related feminist activism. This landscape is contrasted with the inertia which has become apparent in relation to cases in which women kill their abusers. A detailed examination of the Scottish landscape is presented which includes in-depth qualitative analysis of 62 cases of this type.Although the problems inherent to effecting change for women who kill their abusers are recognised, this article proposes several practical changes which could be implemented to bridge the knowledge gap which has emerged in Scotland. This call to action comes at the time when the Scottish Law Commission are considering homicide and defences to murder, making it a crucial time to consider the Scottish landscape in relation to this aspect of domestic abuse.<br />Key messages<br /><ul><li>There exists demarcation in Scotland between responses to domestic abuse generally and responses to cases in which women kill following domestic abuse.</li><br /><li>The issue of women killing their abusers must be included in formal policy dialogues surrounding domestic abuse.</li><br /><li>Any legal changes implemented must recognise the reality of cases of this type.</li></ul>

Women and self-defence: an empirical and doctrinal analysis

“…Although this authority is not binding on the Scottish courts, such an approach could be adopted in the interpretation of imminence, provided that it is accepted that no meaningful difference exists between the concepts of imminence and immediacy. However, this suggestion, and others such as those that propose extending the existing law of self-defence to include situations in which women kill without confrontation (Ripstein, 1995(Ripstein, -1996Dubin, 1995Dubin, -1996Goosen, 2013), run contrary to the findings of empirical studies which show that most women who kill their abusers do so during direct confrontation (Maguigan, 1991(Maguigan, -1992McPherson, 2021;Nourse, 2001). The fact that women are often successful with the plea of provocationwhich requires an immediate loss of self-controlwould further suggest that imminence itself is not the main problem in terms of women's access to self-defence.…”

“…The results from this study show how commonly provocation is pled and accepted in homicide cases involving a female accused, especially where cases are resolved without trial. Elsewhere, it has been evidenced that provocation is the most commonly advanced defence position for women who kill following abuse (McPherson, 2021) and that provocation has been raised in circumstances that are suggestive of self-defence, such as in this example:…”

“…The results from this study show how commonly provocation is pled and accepted in homicide cases involving a female accused, especially where cases are resolved without trial. Elsewhere, it has been evidenced that provocation is the most commonly advanced defence position for women who kill following abuse (McPherson, 2021) and that provocation has been raised in circumstances that are suggestive of self-defence, such as in this example: ‘[The accused and her husband] got into a fight in the kitchen at their home … and he grabbed her by the throat. [The accused] claimed she could not push him off and reached out blindly, grabbing a kettle, but he ducked out of the way and she lost grip of it.…”

“…The wound, which was near the top of his left shoulder, cut the pulmonary artery. [The accused] had originally been charged with murder, but pleaded guilty to the lesser offence of culpable homicide.’ (McPherson, 2021, p. 298)In the appeals of both Croly and Meikle , it was submitted by the appellants that provocation should not have been introduced by the trial judge since it had not been a position advanced at trial. One reading of these appeals alongside the high use of provocation to resolve homicide cases is that potential claims of self-defence are at times subsumed into the plea of provocation as a way to accommodate the facts of a confrontational attack presented by the accused (and the fact that she may have been fighting for her life).…”

“…The wound, which was near the top of his left shoulder, cut the pulmonary artery. [The accused] had originally been charged with murder, but pleaded guilty to the lesser offence of culpable homicide.’ (McPherson, 2021, p. 298)…”