Defences for victims of domestic abuse who kill their abuser

Abigail Pope and Hester Jenkins (Research Assistants at the Law Commission of England and Wales)

Introduction

The Law Commission was asked by the Government to review the current defences to homicide available to victims of domestic abuse who kill their abuser. In December 2024 we published a background paper to inform future reform for this group of defendants, as the project moves into the Law Commission’s broader review of homicide law.

In this blog we explain the purpose of the background paper, some of the challenges faced, and questions for ongoing work in this area.

For more information about our work, please see our project webpages for defences for victims of domestic abuse who kill their abuser, and the broader homicide project. If you are interested in learning more about this work, or sharing any of your work that might be relevant, do please contact us. Contact details are available on the webpages.

Modern understandings of domestic abuse

In our background paper, we summarise the established evidence base for domestic abuse, its impact on victims, and how victims may respond. We begin with an overview of changing understandings of domestic abuse over time. Historically, domestic abuse was understood through psychological concepts, with individual personality types used to explain the behaviour of abusers and victims. From the 1970s onwards, these understandings were criticised by those within the “battered women’s movement”, developed by Dr Lenore Walker, who argued this approach encouraged victim blaming and discouraged state intervention. Dr Walker suggested that victims develop “learned helplessness” and become psychologically incapable of leaving an abusive relationship. In turn, this theory received significant criticism for pathologising victims of abuse and placing responsibility for ending abuse on the individual victim.

More recently, Professor Evan Stark’s model of coercive control has become the dominant understanding of this type of abuse. Professor Stark conceptualised coercive control as several incidents of abuse forming a pattern of behaviour where the perpetrator of abuse exercises control over the victim. The victim then internalises the abuse and complies with the abuser’s demands to avoid further violence. Stark describes this as “entrapment”, as it disables the victim’s capacity to resist and escape abuse.

Professor Stark’s work has been developed further by the social entrapment theory, used primarily by Australian and New Zealand academics to assess responsibility where victims of abuse commit potentially criminal conduct. This theory also considers how structural inequalities and state failures exacerbate abuse and entrapment.

The background paper also provides an overview of the different forms that abuse can take, including newly recognised forms of abuse such as economic abuse, technology facilitated abuse and separation abuse. We also describe the impact of abuse on victims, including physical, psychological, social, and economic effects. We consider the concept of violent resistance, developed by Professor Michael Johnson to explain that victims of abuse may resort to physical violence to protect themselves from coercive controlling violence by their partner. Research suggests that violent resistance is a common response to domestic abuse.

Disclosure of domestic abuse

Understanding disclosure and non-disclosure of domestic abuse can further our understanding of the forms and effects of abuse. Disclosure can lead to support and prevention of further abuse, and in some circumstances could help prevent homicides in this context.

However, there can be several barriers to disclosure of domestic abuse, affected by the personal characteristics of victims and abusers, and their social context. This includes the significant barriers to disclosure of abuse once a victim has killed their abuser. In the immediate aftermath of the homicide, the victim of abuse may suffer from complex trauma responses, such as traumatic amnesia. They may also choose not to disclose abuse at this stage for fear that their children will be removed, to avoid police custody, or because they feel conflicting emotions over having committed the homicide.

Where abuse is not disclosed, this can have a significant impact on the victim’s experience of the criminal justice system. Non-disclosure of abuse may mean there is limited evidence of the abuse to use at trial, or the defence may not advance defences that are applicable. There are other sources of evidence that may be used to demonstrate abuse without disclosure. However, research conducted by the Centre for Women’s Justice demonstrates that failure to disclose abuse is often a key issue used to discredit victims of abuse who kill their abusers (Centre for Women’s Justice, 2021).

Further, the support offered to defendants at trial will not be based on a proper understanding of their experiences as a victim of abuse, but whether the impact of that abuse manifests in ways that satisfy the criteria for support for vulnerable defendants generally. We are keen to hear more about provisions for vulnerable defendants in this context, and whether vulnerability is a useful concept to assess how the substantive law and defences should apply where victims of domestic abuse kill their abusers.

Prevalence and profiles

During our initial research we have sought to establish a picture of the prevalence of domestic homicide and the legal outcomes for these cases, including which defences are raised in these cases and how successful they are.

Data on domestic abuse and domestic homicide are both published by the Office for National Statistics (ONS). Data regarding domestic abuse are provided by the results from the Crime Survey of England and Wales. Data regarding domestic homicide are provided by the Home Office Homicide Index. These data are useful in establishing profiles for victims and perpetrators of both domestic abuse and domestic homicide, particularly as the ONS provide breakdowns by several characteristics, including age, race, gender and relationship between victim and perpetrator.

Data from the Crime Survey of England and Wales comes with a caveat of statistical uncertainty. Because only a certain sample of people are interviewed, the ONS make clear it is to be taken as an estimate. Additionally, the potential barriers to disclosure noted above mean figures may be higher than suggested.

From the Home Office data, perhaps unsurprisingly, we can see that men are predominantly the perpetrators of both domestic homicide, and women are predominantly the victims. Between April 2012 and March 2023, there were 1,390 domestic homicides recorded in England and Wales – 71% involved a male perpetrator and female deceased, 10% involved a female perpetrator and male deceased. The same data shows that the most common relationship between perpetrator and deceased was partner or ex-partner, with 75% of female victims and 31% of male victims being killed by a partner or ex-partner. ​

The Home Office also provides data on what they call ‘outcomes for principal suspects’, where a ‘principal suspect’ is someone who has been arrested and charged with a homicide offence or a person who is suspected by the police of having committed a homicide offence and is known to have died prior to arrest or charge. The data gives figures for three specific outcomes at court: ‘murder’; ‘section 2 manslaughter’ (ie the partial defence of diminished responsibility); and ‘other manslaughter’, which encompasses those convicted of involuntary manslaughter (ie unlawful and dangerous act manslaughter or gross negligence manslaughter) and those convicted of voluntary manslaughter after establishing a successful partial defence of loss of control.

​For our purposes, we are keen to know which specific defences are being raised and the rates of success. Whilst the diminished responsibility manslaughter figures are useful, the grouping of the ‘other manslaughter’ outcomes precludes us from establishing how many cases ended in a successful partial defence of loss of control, which would be useful data. Moreover, the data also does not indicate where specific defences are raised unsuccessfully. With this in mind, it is difficult to establish definitive and meaningful patterns from the data.​

Typological reviews can help fill some of the gaps in the published government data. Some examples of useful studies we have considered in our initial research includ​e:

• Professor Susan Edwards’ research which looked specifically at women who killed intimate partners (Edwards, 2021). Professor Edwards took data from the Home Office Homicide Index and found 40 female defendants who had killed intimate partners. She then tracked the cases through publicly available sources, including online news articles, in order to establish trends in defences raised. In the report, Professor Edwards noted that due to limited reporting on some cases, it was not possible to establish exactly how many defendants had unsuccessfully raised defences of self-defence, loss of control or diminished responsibility. ​
• The Centre for Women’s Justice conducted in depth interviews with a sample of 20 women who were convicted of killing men who they say were abusive towards them (Centre for Women’s Justice, 2021). From these interviews they were able to establish the defences raised by each of these women and whether they were successful. ​
• The Government commissioned Clare Wade KC to review sentencing in domestic homicide cases. The published report looked at a sample of 120 cases of domestic homicide (21 female and 99 male) (Wade, 2023). The cases were identified by data supplied to her by the CPS and HMCTS, the Home Office Homicide Index, and through her own research of news reports and other sources. ​

​What these reviews show is that available data on defences in this context is limited. Publicly available information can be gathered where a homicide conviction and/or sentence is appealed as the appeal judgment is published and may contain relevant details. However the levels of detail vary, and the judgment may not set out full details of how defences were raised and considered. Details may be available from Crown Court trial transcripts (however these are only available at a cost which can be prohibitive for some), news reports (which may be inaccurate), or interviews with those directly involved in the trial (not always possible and resource intensive).

We are interested in people’s experience of working in areas where the access to data is similarly limited, and whether there is any research ongoing to help fill some of the gaps.

References

P Ahluwalia, C Wade KC and H Wistrich, “A practitioners’ guide to representing women who kill following domestic abuse” in R McPherson, ed, Women Who Kill, Criminal Law and Domestic Abuse (2024).

Centre for Women’s Justice, Women Who Kill: how the state criminalises women we might overwise be burying (2021).

S Edwards, “Women who kill abusive partners: reviewing the impact of section 55(3) ‘fear of serious violence’ manslaughter–some empirical findings” (2021) 72(2) Northern Ireland Legal Quarterly 261.

M Hester, “Portrayal of Women as intimate partner domestic violence perpetrators” (2012) 18(9) Violence Against Women 1067.

C Houston, “How Feminist Theory Became (Criminal) Law: Tracing the Path to Mandatory Criminal Intervention in Domestic Violence Cases” (2014) 21 Michigan Journal of Gender & Law 217.

M P Johnson, “A Personal Social History of a Typology of Intimate Partner Violence” (2017) 9(2) Journal of Family Theory & Review 150.

ONS, Domestic abuse prevalence and victim characteristics: year ending March 2023 (https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/domesticabuseprevalenceandvictimcharacteristicsappendixtables).

ONS, Homicide in England and Wales: year ending March 2023 (https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/appendixtableshomicideinenglandandwales).

E Stark, Coercive Control: How Men Entrap Women in Personal Life (2007).

J Tolmie, R Smith, J Short, D Wilson and J Sach, “Social Entrapment: A Realistic Understanding of the Criminal Offending of Primary Victims of Intimate Partner Violence” [2018] New Zealand Law Review 181.

C Wade, Domestic Homicide Sentencing Review (2023).

L Walker, The Battered Women Syndrome (1984).