Diminished Responsibility and Coercive Control

Introduction

The defence of diminished responsibility has historically been considered a distinctively Scottish plea whereas in England and Wales, the plea of diminished responsibility has been recognised only in 1957 under Homicide Act 1957 and relevant changes made in the Coroners and Justice Act 2009, Section 52. An important aspect of this essay is a discussion around the Challen appeal, wherein Sally Challen who was convicted of murdering her husband in 2011, was allowed grant to appeal by the Court of Appeal. Originally, Sally Challen was unsuccessful in pleading diminished responsibility manslaughter, however, the introduction of coercive control offences under Section 76 of the Serious Crime Act 2015 created an opportunity for Challen to petition for appeal based on the contention that she was subjected to coercive control by her husband for a long period of time. This was not available to Challen at the trial for murder. Section 76 applies in cases where one partner in an intimate or familial relationship is subjected to coercive and controlling behaviour. This essay critically evaluates the proposition that where a partner in a domestic relationship kills the other partner, conviction for murder would be undesirable and unjust if it is established that the perpetrator experiencing a prolonged period of coercive control by the other partner. The essay uses an academic discussion on battered wife syndrome to argue why partners who are subjected to coercive control and domestic abuse in a relationship should not be convicted for murder. Criminology dissertation help is very important in exploring the legal intricacies surrounding cases such as the Challen appeal and the implications of coercive control on legal outcomes.

Sally Challen has won leave to appeal against her murder conviction on the basis on expert evidence which suggests that she suffered from coercive control through her marriage. Expert evidence, which comprised mainly of psychiatric evidence suggested that Sally Challen had suffered from depression caused by her husband’s infidelity over the years and that she also had borderline personality disorder and a severe mood disorder at the time when she killed her husband. Evidence provided by the adult sons of the couple also noted that throughout the decades of their marriage, the deceased pulled the strings and Sally Challen ‘danced’. This evidence was more significant because it led to the establishment of coercive control by the deceased over Sally Challen. These facts regarding the relationship between the deceased husband and the convicted wife became known only because the Court of Appeal reopened the appeal based on fresh evidence and due to the newly created offences of coercive control in Section 76 of the Serious Crime Act 2015.

The question is knowing what is known about Sally Challen’s case now, would it be fair to say that it would have been a travesty of justice had Sally Challen been not allowed appeal against her conviction? To take it further, it can also be asked whether it is just and desirable to convict partner in intimate relationship who kills the other partner after years of subjection to coercive control. In order to engage critically with this question, it would be useful to first consider the literature and evidence related to the ‘battered wife syndrome’, where an argument to allow diminished responsibility plea in such cases has been reiterated from time to time.

1. RD MacKay, ‘The new diminished responsibility plea: More than mere modernisation’ in A Reed and M Bohlander (eds), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Surrey: Ashgate 2011).
2. R v Challen [2019] EWCA Crim 916.
3. Ibid
4. Rachel McPherson, ‘Battered woman syndrome, diminished responsibility and women who kill: insights from Scottish case law’ (2019) 83(5) The Journal of Criminal Law 381.
5. Tony Storey, ‘Coercive Control: An Offence But Not a Defence: R v Challen [2019] EWCA Crim 916, Court of Appeal’ (2019) 83(6) The Journal of Criminal Law 513.
6. Ibid
7. Ibid

The concept of ‘battered wife syndrome’ was evolved to explain the behavioural and cognitive patterns of women who had experienced violent domestic abuse. The construct of battered wife syndrome is psychological in nature and the term was first used by Lenore Walker, a psychologist who found that women who were exposed to long term spousal violence developed distinct psychological and behavioural symptoms. Thus, in psychological literature, evidence of changes in behavioural and cognitive functions of women exposed to domestic abuse were presented where victims could live in acute fear of the perpetrator. Evidence on battered wife syndrome also shows that women may have an irrational fear of the authorities under perceptions of the authority being aligned to male centric views. Long before law addressed these concerns, psychologists argued that the battered woman syndrome impairs rationality and may lead to the commission of acts that may include self harm as well as harm to the perpetrator. Battered wife syndrome has come to be identified as a post traumatic stress disorder wherein women display the same symptoms as exhibited by those who have undergone traumatic experiences.

After the development of psychological evidence and literature around battered wife syndrome, there has been a corresponding development of literature based in law wherein arguments have been made to allow battered wife syndrome as a defence in criminal cases. The argument was based on the premise that the battered wife syndrome could be used as a defence by women who were being prosecuted for murder or manslaughter. The actual use of battered wife syndrome has as a defence has been problematic given that it did not fit with the traditional defences for murder and in particular problems were faced in aligning battered wife syndrome with the defence of provocation. Problems were also faced in aligning battered wife syndrome with the defence of self-defence because of the time gap between the violent acts by the perpetrator and the act of killing and since it could be proved that there was no immediate threat to the victim when she actually killed her abusive partner, the defence of self-defence would not apply.

The lack of clarity and consistency in the use of defence of provocation in cases of wives killing husbands after years of domestic abuse also means that there was always a need to address the psychological evidence related to battered wife syndrome through legislative measures. One of the reasons why women in such cases were not able to plead against convictions in murder was due to the construction of provocation and the introduction of the loss of control defence in the Coroners and Justice Act 2009. Provocation has been constructed as a sudden and temporary loss of control, which made it difficult to apply this defence to women who had suffered domestic abuse or coercive control for years before murdering their husbands. Provocation was difficult to establish in such cases because the act of homicide was not usually preceded by a sudden and temporary loss of control in the case of women suffering from battered wife syndrome. The Coroners and Justice Act 2009 did respond to this problem by creating the loss of control defence, which allows the use of emotions other than anger to establish loss of control. Thus, fear could be a basis for loss of control whereas under the defence of provocation, anger was the primary reason for loss of control. Despite the inclusion of loss of control defence, partners in intimate relationships who were subjected to coercive control were not able to plead diminished responsibility as was seen in the Challen trial; indeed, academic commentators have argued that the qualifying factors in the Coroners and Justice Act 2009, made it difficult for long-suffering women to prove the loss of control.

1. Z Craven, Battered woman syndrome (Sydney: Australian Domestic & Family Violence Clearinghouse 2003).
2. Lenore E Walker, The Battered Woman Syndrome (New York: Springer Publishing Company 1984).
3. Lenore E Walker, ‘Who are the Battered Women?’ (1977) 2 Journal of Women’s Studies 52
4. Walker, The Battered Woman Syndrome, supra n 9.
5. Ibid
6. M McMahon, ‘Battered women and bad science: the limited validity and utility of battered woman syndrome’ (1999) 6(1) Psychiatry, Psychology and Law 23.
7. BL Russell, Battered woman syndrome as a legal defence: History, effectiveness and implications (Jefferson: McFarland 2010) p. 31.
8. Ibid
9. Ibid, p. 32.
10. Craven, Battered woman syndrome, supra n 8.
11. Kate Fitz‐Gibbon, ‘Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control’ (2013) 40(2) Journal of Law and Society 280.

What can be surmised from the above discussion is that the law for the major part has not been structured to address the psychological aspects of the crimes involving intimate partners. Although, much of the above discussion has involved battered wife syndrome, domestic abuse and coercive control are not only experienced by women, but may also be experienced by men both in heterosexual or same-sex relationships. With this in mind, it would become necessary to engage more critically with coercive control and how it may impact the partners who are subjected to it. The psychology literature on battered wife syndrome may be useful in this context in demonstrating how such coercive controls can have behavioural and cognitive impacts on the victims of control. Based on this, an argument can be made that such victims must be allowed the defences under the law if they commit the murder of the controlling partner as in the case of Sally Challen.

Comparison may be made between how law treats a person who commits murder due to sudden and temporary loss of control and how law treats a person who commits murder after years of abuse or subjection to coercive control. In the former case, law has responded by allowing the defence of provocation by applying the loss of control standard. On the other hand, ‘slow burn’ provocation, which is of essence in cases involving intimate partner abuse was not recognised as a defence for a long time. Therefore, while law addressed loss of control in cases involving sudden provocation, the law did not allow similar defences to those who suffered what can be called as ‘slow burn’ provocation. The case of R v Ahluwalia is instructive of the slow provocation, where a woman was subjected to years of abuse before she set fire to her sleeping husband. Although, spouses or partners suffering from coercive control and abuse for years may not have immediately provoking act but may still lose control over their rationality and actions. In R v Ahluwalia, the jury refused to accept the defence of provocation applied to the defendant and convicted the defendant at the trial stage. However, the Court of Appeal allowed her appeal against her conviction on grounds of diminished responsibility after allowing the presenting of expert evidence and psychiatric reports which had not been presented at the time of the trial. Considering what came to be known about the abuse and control that Ahluwalia suffered for 10 years at the hands of her deceased husband, including beatings, rape, and control, it cannot be said that a conviction for murder was justified at the trial stage. It was only when the evidence produced at appeal stage showed the level of abuse that the defendant had faced, that the conviction for murder was overturned and the defendant was instead convicted for manslaughter under diminished responsibility.

1. J Stubbs, ‘Murder, manslaughter and domestic violence, in Kate Fitz-Gibbon and Sandra Walklate (eds), Murder, Manslaughter and Domestic Violence, Homicide, Gender and Responsibility: An International Perspective (Oxon: Routledge 2015) 36.
2. R v Ahluwalia (1992) 4 AER 889
3. Amanda Clough, ‘Loss of self-control as a defence: The key to replacing provocation’ (2010) 74(2) The Journal of Criminal Law 118.
4. Susan Edwards, ‘Loss of Self-Control: When his anger is worth more than her fear’, in Alan Reed and Michael Bollander, Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Oxon: Routledge 2016).
5. ibid
6. R v Ahluwalia (1992) 4 AER 889.
7. R v Ahluwalia (1992) EWCA Crim 1.

In another case, R v Thornton, the court did allow the defence of provocation where the wife killed her husband with a kitchen knife after years of abuse. During the trial, the judge directed the jury on provocation and the defendant was convicted of murder and she unsuccessfully challenged the Duffy direction given to the jury by the judge. It was only when she appealed again with medical evidence was she successful in getting her murder conviction quashed and the court held that the jury should have been directed to consider her mental condition at the trial stage.

The cases of Challen, Ahluwalia, and Thornton suggest that it is very difficult for defendants in cases involving murder to establish a defence related to the abuse and control that they have suffered in the past and which has brought to them to the point of killing their partners. It is against this discussion that the inclusion of coercive control as an offence becomes pertinent and relevant.

The concept of coercive control can be described as a pattern of behaviours that undermine the autonomy of the victim and which involve the perpetrator in micro-regulation of everyday behaviours of the victims and even punishing the victim if they resist control. Although, Stark views coercive control as ‘“gendered” because it is applied by men over women, coercive control is also experienced by individuals in same sex relationships as well as transgender relationships. Thus, in same sex relationships, one partner may threaten to ‘out’ a partner, or belittle or isolate the, while in transgender relationships, a coercive partner may use continuous and deliberate mis-gendering. Even women may exercise coercive control over their male partners in some relationships, although this is rarer as compared to male exercised coercive control over their female partners. Coercive control, like battered wife syndrome, is a psychological construct, where control is explained as the credible threat applied by the perpetrator with negative consequence for resistance against the victim. Coercive control may lead to the victim internalising the rules of behaviours that would help her or him to avoid punishment. This can affect the psychological wellbeing of the victim. Thus, there are some similarities in how victims of battered wife syndrome and coercive control may internalise fear and have effects on their behavioural and cognitive actions. How fair and just would it be to convict such a victim of coercive control for murder when their actions may be compromised by their psychological trauma? The Challen case has led to further discussion on coercive control.

1. R v Thornton [1996] 1 WLR 1174.
2. ibid
3. E Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press 2007) p. 5.
4. Ibid, p. 205.
5. C Donovan, R Barnes, and C Nixon, ‘The Coral Project: Exploring Abusive Behaviours in Lesbian, Gay, Bisexual and/or Transgender Relationships. Interim Report’ (September 2014).
6. C Donovan and R Barnes, ‘Domestic violence and abuse in lesbian, gay, bisexual and/or transgender (LGB and/or T) relationships’ (2017) Sexualities 1.
7. E Stark, ‘Re-presenting battered women: Coercive control and the defense of liberty’ (2012) Sine loco 5.
8. M A Dutton and LA Goodman, ‘Coercion in intimate partner violence: Toward a new conceptualization.’ (2005) 52 (11-12) Sex Roles 743.
9. E Williamson, ‘Living in the world of the domestic violence perpetrator: Negotiating the unreality of coercive control’ (2010) 16(12) Violence Against Women 1412.
10. V Bettinson, ‘Criminalising coercive control in domestic violence cases: Should Scotland follow the path of England and Wales?’ (2016) 3 Crim LR 165.

The Challen appeal however, would not have been possible had the experiences of coerced and controlled victims not led to the creation of Section 76 offence under the Serious Crime Act 2015. It is also noteworthy, that there has been an evolution of definition of domestic abuse in the government’s Domestic Abuse Bill Consultation. These changes can be seen in the light of growing discourse in public as well as academia on the experiences of victims of domestic abuse and controlling and coercive behaviour. The development of partial defences to murder in the context of domestic violence victim who kills perpetrator can also be seen in the light of growing sensitivity to the position of the victim in an abusive relationship.

Challen appeal is an opportunity for the judiciary to interpret partial defences to murder through the lens of coercive control and its effect upon victims. In the original trial in Challen case, the lack of awareness or appreciation of the psychological impacts of the deceased husband’s controlling behaviour on the wife/defendant, was clearly demonstrated. Despite that, the court did not consider the effects of the behaviour on the accused. It is only because the Court of Appeal allowed appeal on the basis of expert evidence, that there is a relook into the specific aspects of the case where the actions of the deceased husband also become subject to scrutiny. Therefore, at this point in the essay, it becomes pertinent to engage with the legal aspects of coercive control under the Serious Crime Act 2015, Section 76, which criminalises repeated or continuous use of coercive or controlling behaviour of a partner or family member. It is important to note that it became necessary to formulate such an offence because so far the criminal law framework had failed to recognise the experience of domestic violence and abuse survivors. However, a question arises as to whether the new offence would be competent to address domestic abuse and the effects of the same on a partner who kills their abusive partner.

Tolmie has argued that the criminal justice system is simply not equipped to accommodate the complexities of coercive control cases and the new provision may in effect only apply in extreme cases or cases involving high levels of physical abuse. Walklate et al provide a critique on how far is it possible to align and translate clinical practice into a bespoke legal context and they speculate that Section 76 offence will not be able to address the complex and wide contexts that are involved in how partners experience control and abuse. What is significant in this argument is that it places an emphasis on the inclusion of clinical understandings, explanations and expert testimony in homicide trials of abused women who kill. This argument becomes significant in light of the Challen appeal, where justice became possible only after introducing expert testimony. Thus, in order to provide just and fair outcomes in cases of partners killing their abusive partners, it is important to highlight and explain the behaviours and harms which are psychological in nature for the benefit of the courts and the juries before whom such cases are presented.

It can be said that the inclusion of the coercive control offence in Section 76 now provides an opportunity to the police and the criminal justice system to respond to the problem of intimate partner abuse and its impact on the victims where such impacts may include psychological behaviours that may lead to murder of the perpetrator of the abuse. This leads to the developing of the ability of the police and the courts to identify non-physical forms of coercive and controlling behaviour. A dichotomy in how clinical practitioners and police construct abuse was found in a research by Robinson et al who noted that while practitioners recognised coercive control as abusive, police tended to emphasise on physical violence. It is also to be noted that the key to determining the nature of psychological damage for the victims of domestic abuse should be the level of control rather than the level of violence because even if victims are not subjected to serious violence, then can be subjected to coercive control, which also has an impact on their psychology and behaviour. Control can be used by the perpetrator to bend the victim to their will. It is because of this understanding of the nature of control that Section 76 inclusion is appreciable because now there are increased expectations of the police response to domestic abuse and coercive control. Furthermore, it can now be expected, in the wake of the Section 76 inclusion and the Challen appeal that the courts will also respond to domestic abuse victims who kill their abusive partners in a way that is different from the trial courts’ responses in Ahluwalia and Challen. This is more just than the situation where accused in such case are convicted for murder because it takes into consideration clinical evidence of trauma and behavioural and cognitive actions of the abuse victims.

1. HM Government, Transforming the Response to Domestic Abuse: Government Consultation (2018).
2. Coroners and Justice Act 2009, Sections 52, 54-56.
3. Home Office, ‘Strengthening the Law on Domestic Abuse – A Consultation’ (2014).
4. J Tolmie, ‘Coercive control: To criminalize or not to criminalize?’ (2018) 18 (1) Criminology and Criminal Justice 50.
5. S Walklate, K Fitz-Gibbon and J McCulloch, ‘Is more law the answer? Seeking justice for victims of intimate partner violence through the reform of legal categories’ 2018) 18 (1) Criminology and Criminal Justice 115.
6. Ibid, p. 125.

To conclude, since there is now increased awareness of effects of battered wife syndrome and coercive control on the victims of domestic abuse, it would be more desirable and just that this awareness also guides law and policy on responses in cases where the abused partner kills the perpetrator. Challen appeal is an opportunity to consider looking at cases of homicide involving an abused or controlled partner through the lens of clinical knowledge and expertise and to apply what has been learnt of experience with domestic abuse to criminal law. Outcomes in judicial cases involving abused partners which do not take into account these perspectives are likely to be unfair and unjust to the abused individuals when psychology research now tells us that there are distinct behavioural and cognitive impacts of domestic abuse and coercive control for the victims of such behaviours.

1. A Robinson, M G Pinchevsky and J Guthrie, ‘Under the radar: policing non-violent domestic abuse in the US and UK’ (2016) 40(3) International Journal of Comparative and Applied Criminal Justice 195.
2. A Robinson, A Myhill and J Wire, ‘Practitioner (mis)understandings of coercive control in England and Wales’ (2018) 18 (1) Criminology and Criminal Justice 29.
3. J Herring, ‘The Serious Wrong of Domestic Abuse and the Loss of Control Defence’ in A Reed, M Bohlander (eds) Loss of Control and Diminished Responsibility Manslaughter: Domestic, Comparative and International Perspectives (Ashgate 2011) p. 73.
4. E Stark, ‘Policing partner abuse and the new crime of coercive control in the United Kingdom’ (2016) 8(4) Family and Intimate Partner Violence Quarterly 345.

Dig deeper into Preparation for your portfolio submission with our selection of articles.

Books

Craven Z, Battered woman syndrome (Sydney: Australian Domestic & Family Violence Clearinghouse 2003).

Edwards S, ‘Loss of Self-Control: When his anger is worth more than her fear’, in Alan Reed and Michael Bollander, Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Oxon: Routledge 2016).

Herring J, ‘The Serious Wrong of Domestic Abuse and the Loss of Control Defence’ in A Reed, M Bohlander (eds) Loss of Control and Diminished Responsibility Manslaughter: Domestic, Comparative and International Perspectives (Ashgate 2011).

MacKay RD, ‘The new diminished responsibility plea: More than mere modernisation’ in A Reed and M Bohlander (eds), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Surrey: Ashgate 2011).

Russell BL, Battered woman syndrome as a legal defence: History, effectiveness and implications (Jefferson: McFarland 2010).

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

Stubbs J, ‘Murder, manslaughter and domestic violence, in Kate Fitz-Gibbon and Sandra Walklate (eds), Murder, Manslaughter and Domestic Violence, Homicide, Gender and Responsibility: An International Perspective (Oxon: Routledge 2015).

Walker LE, The Battered Woman Syndrome (New York: Springer Publishing Company 1984).

Journals

Bettinson V, ‘Criminalising coercive control in domestic violence cases: Should Scotland follow the path of England and Wales?’ (2016) 3 Crim LR 165.

Clough A, ‘Loss of self-control as a defence: The key to replacing provocation’ (2010) 74(2) The Journal of Criminal Law 118.

Donovan C and R Barnes, ‘Domestic violence and abuse in lesbian, gay, bisexual and/or transgender (LGB and/or T) relationships’ (2017) Sexualities 1.

Dutton MA and LA Goodman, ‘Coercion in intimate partner violence: Toward a new conceptualization.’ (2005) 52 (11-12) Sex Roles 743.

Fitz‐Gibbon K, ‘Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control’ (2013) 40(2) Journal of Law and Society 280.

McMahon M, ‘Battered women and bad science: the limited validity and utility of battered woman syndrome’ (1999) 6(1) Psychiatry, Psychology and Law 23.

McPherson R, ‘Battered woman syndrome, diminished responsibility and women who kill: insights from Scottish case law’ (2019) 83(5) The Journal of Criminal Law 381.

Tolmie J, ‘Coercive control: To criminalize or not to criminalize?’ (2018) 18 (1) Criminology and Criminal Justice 50.

Robinson A, M G Pinchevsky and J Guthrie, ‘Under the radar: policing non-violent domestic abuse in the US and UK’ (2016) 40(3) International Journal of Comparative and Applied Criminal Justice 195.

Robinson A, A Myhill and J Wire, ‘Practitioner (mis)understandings of coercive control in England and Wales’ (2018) 18 (1) Criminology and Criminal Justice 29.

Stark E, ‘Policing partner abuse and the new crime of coercive control in the United Kingdom’ (2016) 8(4) Family and Intimate Partner Violence Quarterly 345.

Stark E, ‘Re-presenting battered women: Coercive control and the defense of liberty’ (2012) Sine loco 5.

Storey T, ‘Coercive Control: An Offence But Not a Defence: R v Challen [2019] EWCA Crim 916, Court of Appeal’ (2019) 83(6) The Journal of Criminal Law 513.

Walker LE, ‘Who are the Battered Women?’ (1977) 2 Journal of Women’s Studies 52.

Walklate S, K Fitz-Gibbon and J McCulloch, ‘Is more law the answer? Seeking justice for victims of intimate partner violence through the reform of legal categories’ 2018) 18 (1) Criminology and Criminal Justice 115.

Williamson E, ‘Living in the world of the domestic violence perpetrator: Negotiating the unreality of coercive control’ (2010) 16(12) Violence Against Women 1412.

Reports

Donovan C, R Barnes, and C Nixon, ‘The Coral Project: Exploring Abusive Behaviours in Lesbian, Gay, Bisexual and/or Transgender Relationships. Interim Report’ (September 2014).

Government HM, Transforming the Response to Domestic Abuse: Government Consultation (2018).

Home Office, Strengthening the Law on Domestic Abuse – A Consultation (2014).