‘Red mist’ homicide: sexual infidelity and the English law of murder (glossingTitus Andronicus)

Abstract

For over 300 years, criminal courts have regarded sexual infidelity as sufficiently grave provocation as to provide a warrant, indeed a ‘moral warrant’, for reducing murder to manslaughter. While the warrant has spilled over into diminished responsibility defences, wounding, grievous bodily harm and attempted murder cases, it is provocation cases that have provided the precedents enshrining a defendant's impassioned homicidal sexual infidelity tale as excusatory. Periodically, judges and law reformers attempt to reign in provocation defences, most recently in England and Wales where provocation has been replaced by a loss of control defence that, most controversially, specifically excludes sexual infidelity as a trigger for loss of control. This paper reflects on this reform and its reception, glossing Shakespeare's scathing critique of warrants for murder in Titus Andronicus.

‘Endlessly Valuable’ Discursive Work—Intimate Partner Femicide, an English Case Study

“…While the English reform was informed by decades of feminist critiques of the operation of provocation defences, it was triggered by controversial sentences handed down at the turn of the century 3 . The Humes case and its contentious aftermath has been told elsewhere (Howe 2013;Burton 2003). Suffice it to say that in December 2001, a man described by the court as an 'overworked' solicitor, knifed his wife to death in front of their four children.…”

“…I have discussed the controversial reform, the furore it generated and the Clinton case elsewhere (Howe 2012(Howe , 2013. What is of interest here is how, reading the post-Clinton cases as a discursive field, we can determine what has become of the traditional provocation by sexual infidelity narrative that Englishmen have resorted to for centuries.…”

The Implementation of Feminist Law Reforms

“…Alternatively, s 54(4) provides that the qualifying trigger can be 'a thing or things done or said (or both) which-(a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged'. (For overviews of recent debates and criticism of the 'loss of control' defence see Horder and Fitz-Gibbon, 2015;Howe, 2013Howe, , 2014Reed and Bohland, 2011).…”

“…Feminist critiques of the partial defence of provocation have been well rehearsed (e.g. Bandalli, 1995;Fitz-Gibbon, 2014;Horder, 1992;Howe, 1994Howe, , 1997Howe, , 2000Howe, , 2013Howe, , 2014Morgan, 1997;Nourse, 1997;Radford, 1987;Tarrant, 1996;Tyson, 1999Tyson, , 2013. The abolition of provocation in Victoria was part of a comprehensive package of reforms introduced by the Crimes (Homicide) Act 2005 (Vic).…”

“…Alternatively, section 54(4) provides that the qualifying trigger can be 'a thing or things done or said (or both) which -(a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged'. (For overviews of recent debates and criticism of the loss of control defence, see Horder and Fitz-Gibbon, 2015;Howe, 2013Howe, , 2014Reed and Bohlander, 2011. ) Shortly after a New South Wales (NSW) Select Committee on the Partial Defence of Provocation published its Final Report (2013) in which it recommended that the partial defence of provocation be 'relabelled' a defence of 'gross provocation', a reform structured along the lines recommended by the Law Commission for England and Wales in 2004, the NSW government responded with a different proposal for a partial defence of 'extreme provocation' (Crimes Amendment (Provocation) Act 2014 (NSW); for a discussion of this proposal, see Crofts and Loughnan, 2014).…”