Despite the fact that women are much more likely to be killed then to kill, women charged with the murder of their violent male partners are further victimized by a legal system that has been constructed, interpreted and implemented to fit men's experience and homicidal responses. Current legislation frequently reduces men's murder charges to manslaughter convictions on their pretext of women's alleged infidelity. The law is inherently gendered. By looking at the legal defenses to murder we see how they represent a male understanding of the crime and men's experiences of killing. As a defense Sunita can plead provocation. This is governed by the Homicide Act (1957, s.3, stating that the provocation must be so that Sunita must have been so provoked as to lose self-control and that the provocation must have been sufficient enough to make a reasonable person, in the same situation, do as she did[1]. To plead this defense, Sunita must prove that she had been so angry that she "lost all self-control", and was therefore unable to restrain herself[2].
[...] Therefore the “reasonable” level of self-control should be assessed taking her state of mind, her experiences and her history into account[8]. The case of Smith[9] found that the jury in deciding whether a reasonable woman could have lost her self-control more easily than any other woman could take a depressive illness into account. The relationship between provocation and the retaliation is judged on social trends and slowly the trends are indicating that violence towards women is not to be tolerated. Therefore Sunita may be able to persuade the jury to be sympathetic towards her. [...]
[...] The difficulty with the syndrome is that not all women suffer from it with the result that those that do not fall within the proposed definition cannot rely on it. One criticism is that it may be hard to envisage her dead husband directly showing his characteristics. It can be argued that Sunita did not leave her husband when he first started to abuse her. It can be said that battered women feel a stigma and are embarrassed because of this violent relationship. [...]
[...] Self-defense could be used where the woman believed that the defensive action was necessary and was allowed to “strike first” and, given the greater physical strength of many men and the levels of violence to which Sunita had been exposed to, the degree of force use could be seen as reasonable. In some situations retreating is not a feasible action. This could be for cultural and religious reasons[21], the fact that she as committed to holding her marriage together, she had nowhere to go and for the fear of the safety of her child[22]. [...]
[...] The essence of this defense is that the defendant must have been subjected to violence by the victim and believed that their life was in danger and that they had no other alternative but to kill. This can be used in circumstances where the abuse was ongoing, using a combination of the defendant's history, a lack of effective intervention and their perception of the danger they faced through personal testimony. It is argued that self-defense must either be made more adaptable to take into account of the different ways people find to survive life threatening situations or a new defense of self-preservation must be introduced. [...]
[...] If Sunita had an honest, but mistaken belief based on the facts, which, if they had existed, would have provoked a reasonable person to give defense[10] can be used by Sunita as a defense. She can argue that because her husband was in such a violent state and had also threatened her with a knife she honestly believed that he would have killed her or hurt her child. Therefore it can be argued that her response was not too drastic and that any reasonable person would have done the same. [...]
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