In the UK, men can no longer claim they were provoked by jealousy into killing their partner.
Our research published recently in the Cambridge Law Journal revealed the extent to which that change, enacted in 2010, has altered the way the English courts have responded to murder motivated by sexual infidelity. The answer is not as much as we might have hoped.
As a defence to murder, provocation had long caused controversy in the English courts. On one hand, the defence largely failed to accommodate the desperate experiences of women who have killed a long-term abusive male partner. On the other, the defence too readily accommodated the contexts within which jealous and controlling men killed women who were leaving them or had committed infidelity.
The replacement of the provocation defence with a new partial defence of loss of control signalled an effort to ensure the law was able to better address the gendered contexts that surround a large number of homicides.
Loss of control
The new partial defence of loss of control retains some features of the old provocation defence, while also bringing in new provisions. One provision limits the defence reducing murder to manslaughter in cases where someone loses control when they find evidence of what the law now calls “sexual infidelity”. At the time the reforms were introduced, the Ministry of Justice stated:
The government does not accept that sexual infidelity should ever provide the basis for a partial defence to murder.
In practice, this means that in cases when words or conduct constituting sexual infidelity trigger the defendant’s loss of self-control in killing the victim, a jury is to disregard this evidence in deciding whether the conduct amounted to murder or manslaughter.
The Clinton case
One of the first cases to test the boundaries of the sexual infidelity provision was that of Jon Jacques Clinton. Clinton killed his wife in November 2010 after she allegedly admitted to having sex with multiple men and sniggered at the prospect of Clinton committing suicide as a result of their relationship breakdown.
Clinton had previously discovered messages on his wife’s Facebook profile containing sexual innuendos and discovered that her personal status was listed on Facebook as “separated”. It was these images, her listed status as well as her alleged admissions of sexual infidelity that Clinton argued led to his loss of self-control and use of lethal violence.
Clinton was convicted of murder as the trial judge determined that, given the new requirement to exclude evidence of sexual infidelity as a basis for a plea of loss of control, there was no other evidence to justify leaving the partial defence for the jury to consider.
On appeal, however, the Court of Appeal held that the provision does not wholly exclude evidence of sexual infidelity as irrelevant, where a defendant raises a plea of loss of control. The court stated that where sexual infidelity evidence is one part of a wider and more complex “provocation narrative”, the defendant can still raise a plea of loss of control. It will be where evidence of sexual infidelity is the sole basis for a plea of loss of self-control that the partial defence must fail.
The decision in Clinton has since raised concerns as to the ongoing likelihood of “jealous man” defences continuing to have credence in English law.
Beyond Clinton, the reforms also failed to significantly change the way English courts sentence jealous men who kill. Given the abolition of provocation, it was anticipated that such cases should fall into the category of murder. However, no guidance was provided on the extent to which evidence related to sexual infidelity should be influential in sentencing.
Our analysis of relevant murder cases since 2003 reveals that the English higher courts have regarded the change in law purely as a technical one, relevant only to the pre-conviction trial phase. Judges have not viewed the change in law as demanding a shift in moral thinking at sentencing.
Indeed, contrary to the spirit of the 2010 reforms, English judges have continued to view sexual infidelity evidence as having the potential to constitute grave provocation and justify a significantly lower term of imprisonment.
For example, in the 2011 case of Haywood, the defendant began a relationship with “W”, after his wife died. After they had bought a house together, W took a lover and later another lover, following which she informed the defendant that she was going to move in with her second lover. The defendant armed himself with an iron bar, attempted to disguise himself and fatally attacked W’s new partner.
Despite the 2010 reforms, on appeal the court stated that the case involved “the greatest possible provocation in the non-technical sense”. The defendant’s sentence was reduced to a minimum term of nine years.
This case, and others sentenced since the 2010 reforms, suggest that the courts have failed to incorporate the gender perspective of the 2010 reforms into sentencing practices.
Where to next?
Our research reveals that combating leniency in the law’s response for murders triggered by sexual infidelity is a task not yet achieved.
While the 2010 reforms have made some gains in improving the law’s response to the different contexts within which men and women kill, further review and reform is needed to ensure that the leniency previously afforded at the conviction stage is not merely transferred to sentencing.