Sexual Infidelity: The Exclusion That Never Was?

Abstract

The provisions of the Coroners and Justice Act 2009 have been no stranger to scrutiny since enactment in regard to the partial defences to murder, but none more so than the sexual infidelity exclusion that somehow appeared sitting neatly within s. 55(6)(c). The exclusion means that when considering if the loss of self-control had a qualifying trigger, one must disregard things done or said which constituted sexual infidelity. This must have come as quite a surprise to the Law Commission, as its report preceding this change to the law eventually formulated by the government did not mention an exclusion of this kind, and it does not appear to be a welcomed change. Of course, the reasoning underpinning such a bold move is sound; a sole confession of sexual infidelity and subsequent killing from anger and jealousy should not partially excuse such actions. The problem is that such circumstances are rare. In most cases involving an admission of sexual infidelity, there is often much more to the situation than meets the eye. This comment considers the repercussions of having this exclusion included in the 2009 Act and how it will actually affect both genders, not just jealous men. Why this particular exclusion?Hansard is a good place to start as to how and why this exclusion came to be:We are not trying to legislate away people's natural and normal upset, concern and anger about these circumstances, but we do not accept that that itself ought to lead to reducing a murder finding. 1