The quashing of Sally Challen’s conviction by the Court of Appeal for murdering her husband Richard in 2010 will give hope to those who believe that abuse can and should reduce the level of blame afforded to those who kill their abusers. Criminal courts have traditionally been slow to recognise the effect abuse has on victims and Challen will now face a retrial for murder – one that should take into account the alleged coercive control she is believed to have suffered during her marriage.
A person coerces and controls a victim using a pattern of behaviour that isolates them from sources of support, subordinates them and makes them dependent upon the abuser. Using coercive or controlling behaviour towards an intimate partner or family member became a criminal offence under in the Serious Crime Act 2015. In one sense Challen’s case has been successful at raising the profile of this kind of behaviour, now recognised as a common feature of many domestic abuse relationships. And leave to appeal against her conviction was granted in 2018, partly based on the argument that there had been significant advances in society’s understanding about domestic abuse, and particularly the use of coercive control.
Avenues of defence
But there are limits to the Challen appeal decision. The reported comments of the appeal judges suggest that the court quashed Challen’s conviction for murder not so much for the fact she allegedly endured coercive control, but on the basis that she had suffered from two mental disorders which were not known at her trial. Should this be the case, then it will be a disappointment for campaigners trying to raise awareness of the impact of coercive control.
At the time of the killing in 2010, relevant provisions under the Coroners and Justice Act 2009 had not come into force, meaning that the legal defences available to Challen were either provocation or diminished responsibility. The former requires a sudden loss of control in response to provocation, whereas diminished responsibility is established where the defendant experiences an abnormality of mind at the time they killed. But neither defence was successful in Challen’s case.
A Court of Appeal decision quashing Challen’s conviction on the basis of a mental disorder that was not known at the time of her trial means that once again defending women who kill relies on showing they were “mad” rather than centring on the behaviour that caused them to kill.
Coercive control advocates have argued that the effects of being subject to a pattern of continuous subjugation in an intimate relationship make all targeted victims vulnerable. They argue that this vulnerability is not only acute for those who are able to show that they have a mental disorder. Research illustrates the toll domestic abuse has upon victims. The number of suicides by women who are victims of domestic violence in England and Wales is estimated to exceed those killed by their partners or ex-partners. Attempted suicides by women subject to domestic violence are five times more prevalent compared to those not subject to it.
Persuading a court
The decision to quash Challen’s conviction may have limited use to the majority of victims of coercive control who enter the criminal justice system as defendants, because it specifically concerns avenues for defence in instances of murder as I’ve previously argued.
Where there is evidence of physically abusive behaviour, self-defence may be used as a defence where the abused person attacks the abuser. However, the force used in response to the perceived threat must be reasonable, something that may not be appreciated by members of a jury who may not understand the meanings behind the gestures used to threaten the victim.
In cases where the coercive and controlling behaviour is predominantly psychological, it will also be very difficult to persuade a court that force was needed to escape the abuser. Currently, if an abused person commits a crime as a result of being coerced or controlled there is no defence in law for this. Although on the face of it duress may be a possible defence, it has been interpreted too narrowly for the coerced and controlled defendant to use.
The high-profile nature of Challen’s case and the decision to order a retrial does carry hope for other future cases that have some similarities to Challen’s. The first opportunity to test its reach will be the appeal case of Emma-Jayne Magsun, who was also granted leave to appeal her murder conviction in November 2018. The Challen case has raised the profile of coercive control, but juries still need to be clearly informed about the impact this form of abuse has on victims.