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Within contemporary society, evidence suggests that domestic homicide represents a serious social problem where predominantly the majority of victims are women, who are murdered by their male partners following years of cumulative violence within an abusive spousal relationship (Edwards 1989). Wherein the majority of these murdered women have been both subjected, and have experienced, varying forms of physical, sexual, psychological and emotional abuse. Who have pointlessly died at the hands of the Criminal Justice System's failure to provide adequate legal legislation, intervention and protection for these women.
Dobash and Dobash argue 'it is impossible to use law and legal apparatus to confront patriarchal domination and oppression when language/procedures of those social processes and institutions (marriage) are saturated with patriarchal beliefs/structure' (1992:147).
Which renders both legal legislation and policies to become gender theorised, biased against women, which serves to favour men in legal defences. response to women who do fight back, which results in women killing their violent partner. For this violent closure usually presents itself as the only available solution in which women and their children can finally escape the torment of their abuser. Edwards (1989:13) argues 'women's need for protection, women's voices as victims of crime, and as victims of the law have been totally eclipsed'.
For women are further victimized/blamed (Pahl 1985) for protecting themselves within the Criminal Justice System. Whereupon, women find themselves labelled double deviant, cold-blooded, calculated murderers, who face mandatory life sentences with limited prospect of judicial reprieve. for murder (self-defence or provocation), which derive from men's experiences/perspectives. Therein women are denied the same agency within equitable legal remedies, where women's legal defences are reduced (self-defence usually inadmissible), and reduced to pleas of diminished responsibility (partial defence to murder) where the 'Battered Woman Syndrome' (Walker 1978) is sometimes successful as a mitigating factor.
But feminists argue this partial defence further serves to medicalize/stigmatise women, for 'syndrome' depicts the pathology of the "sick model/mad woman" Schneider (1986, p198) which categorizes all women universally, whilst denying autonomy, instead shifts the focus of the man's violence to the woman's state of mind.
Throughout criminological theories of female criminality, gendered discrimination is perpetuated throughout, whether as victims or offenders, the treatment or theorising which women receive is dependent upon whether they conform or deviate from their assigned gender roles. Wherein implies that women are responsible for 'provoking their own demise' (Edwards 1981), if considered sexually non-conforming/promiscuous or deviant.
These beliefs are further endorsed within classical and criminological theories, which seek to locate female criminality within a sexist context, where gendered assumptions locate women within essentialist biological determinism. Therefore, according to Lombrosso and Ferro's (1895), and Pollak's (1950) ideologies female criminality results from biological bodily processes (hormonal imbalance), where female biology determines the intrinsic characteristics of a woman, therein all female behaviour is perceived as homogenous, and considers such factors as class, status and power unimportant.
Which consequently stereotypes women into a category, therefore women are deemed either criminal by nature, or deviant (double deviant) because they deviate from their biologically determined gendered roles. Pollak also believed that women were more capable of being criminal than men, since women were devious and cruel, and hid behind their social roles to protect them from being classed as criminal deceivers. Where he asserts, that 'women are treated more leniently by the legal and penal systems (chivalry theory) if women are seen not to blame (i.e. if they are faithful/committing offences to protect their children). Since men are the oppressors, and women are the oppressed' (1950:151), men feel dutiful to recompense women.
Similarly, Freud (1953) suggests that female victims of violence within the home are prone to exaggeration, since nagging wives are perceived as the cause of their own violence (victim blaming) therein nagging precipitates justified beatings.
But given the criminal legal system represents a patriarchal hierarchical institution where predominantly the legal personnel are men, (judges, magistrates, lawyers), hence legal precedents, statutes and legislation are implemented to exclude, discriminate and bias women (Klein 1981). The institution of marriage serves as the instrument of continued violence towards women, where marriage is the foundation of heteropatriarchy (Hanmer et.al. 1989) as Hanmer (1978) argues 'force and its threat is never residual or secondary, rather it is the structural underpinning of hierarchal relations' (p229) were heterosexuality and violence co-exist.
Hence, 'the marriage licence' has become a 'hitting licence' suggests Dobash and Dobash (1981:563-81) which legitimises and sanctions the murder of women. Which Engels (1972:p22) supports for he wrote 'in order to make certain of the wife's fidelity, and therefore the paternity of the children, she is delivered over unconditionally to the power of the husband, if he kills her, he is only exercising his right'.
When studying the differences between men and women who murder their spouses/ex-spouses etc. their ulterior reasons behind their motivations and explanations vary significantly. Typically when men kill their spouses it is predominantly because of their partners sexual infidelity, lose their tempers after years of nagging (nagging and shagging defence), which fits the male idea of what provocation means and the reasonable response, possessiveness or when a women attempts to leave an abusive relationship. Consequently men plan, hunt down and murder women in cold blood Whereas women kill as a last resort when defending themselves against violence or where women and their children have received death threats.
The following cases and legal rhetoric represent the distorted injustice:-
1. Smith and Hogan (1978:p308) also write 'to taunt a man with his impotence or his wife's adultery may be cruel and immoral, but it is not unlawful and may surely amount to provocation'.
2. Lord Justice Taylor (1986:1695) notes 'that were a woman's adultery was involved "words alone" were sufficient to support a claim of provocation. From 1871-1946 a number of cases upheld that "words alone" could provoke if those words confessed adultery'. But this was quashed in Holmes -v- DPP 1946 appeal where a man killed his wife when she admitted adultery.
3. In 1989 Sarah Thornton murdered her abusive and alcoholic husband (policeman) who threatened to kill her whilst he was asleep. She was found guilty of his murder. Her defence of diminished responsibility was denied, as was her first appeal. London Justice For Women intervened where she was eventually freed at her second appeal five years later.
In 1995 Emma Humphreys stabbed her partner after he constantly taunted her to kill herself, therein she loss control and stabbed him, which resulted in his death. She was tried and convicted of murder. She appealed, and the Court of Appeal held that a history of violence (cumulative provocation) suffered by the killer at the hands of the victim was relevant evidence that the accused did in fact lose her self-control. Her defence of provocation was allowed where she was freed within 5 years following the London Justice for Women feminist campaign. Although this cumulative act was accepted it does not guarantee that that these new understandings will be considered in all cases.
Controversy continues to surround the legal defences to homicide, where legal legislation and policy further serves to benefit men, whilst discriminating and restricting women. Currently in the United Kingdom the three most common defences to murder put forward by spouse killers are self-defence, diminished responsibility and provocation (Birch 1993). Therein self-defence which results in an acquittal is near impossible for women to plead successfully, because it is written within a gendered perspective, which both excludes and denies women's experiences and explanations.
Especially when physical difference are ignored, consequently women often use objects (knives) to defend themselves with ultimately ensures that self-defence is unobtainable for women.
Similarly, provocation is usually unavailable to women because the standard test is defined by the judgement in the Duffy case (1949), where she was charged with the murder of her husband for acting in a vengeful manner following years of domestic violence. Section 3 of the Homicide Act 1957, 'is based upon the belief that a person will 'cool off' between/after assaults rather than slowly boil towards a loss of control' (Birch 1993 p). Which restricts the defence of provocation to 'sudden loss' or 'self control' therein no other definitions are considered to incorporate slow-burn factors within this legal scope. Consequently women do not kill instantly, in the moment of threat, but usually await an opportunity to unleash their anger when the abuser is incapacitated i.e. asleep (Kiranjit Ahluwalia 1989) or drunk before they attack.
Therefore, Horder argues 'anger as outrage best encompasses women's responses to domestic violence which allows for the concept of provocation as slow-burning (1992:190). Where he suggests the reinstatement of the legal position through substitution of references to provoked angry retaliation in place of references to provoked loss of self-control in the Homicide Act 1957, section 3. But in doing so, one could argue that the definition of what constitutes provocation is outside women's control for justifiable anger is selectively applied (Lees 1994). Unfortunately men have the right to justifiable anger where women do not, for men have the right to react to provocation where women do not.
Although there is no legally accepted definition of cumulative anger, the concept of cumulative provocation was suggested by Wasik (1982:29) as a 'course of cruel or violent conduct by the deceased, often in a domestic setting, lasting over a substantive period of time, which culminates in the victim of that conduct/someone acting on his/her behalf, intentionally killing the tormentor'. The principles in Ahluwalia were confirmed in Humphreys where the Court of Appeal held in Thornton's second appeal that cumulative provocation was applicable.
When considering the defence of diminished responsibility, (Section 2 of the 1957 Homicide Act) often this is the only available defence available to women. But the reasonably new condition which is used to support the partial defence to diminished responsibility which reduces the charge of murder to manslaughter 'Battered Woman Syndrome' has received mixed blessings.
In 1984 Dr Lenore Walker developed the 'Battered Woman Syndrome' which was first coined by Susan Steinmetz (1975) to explain why some woman stay in abusive relationships where they might have perceived danger, where someone outside would not. Walker developed two theories, firstly the theory of the cycle-of-violence where battering is neither random nor constant, but occurs in repeated cycles: the first stage is tension building, the second stage is the battering incident and the third stage consists of the 'honeymoon period' (kind/loving behaviour.
Wherein the theory of learned helplessness was adapted by Walker to explain why women find it difficult to leave. She hypothesized that where woman experienced violence which they were unable to control, where overtime this developed into a condition of "learned helplessness" which prevents them from acting on opportunities to escape the violence.
Concerns are expressed regarding its use, for the concept of syndrome reduces the social problems of an individual personality/psychology (Bowker 1983). It is also based on the experiences of white middle-class women, which may harm ethnic minority women such as Aboriginal women who are assertive, economically independent and who fight back against violence they experience. It also implies that all women are suffering from a psychological disability, and that this disability prevents them from acting normally, wherein the diagnosis of this 'syndrome' reinforces the idea that women are sick/powerless, a view which the Criminal Justice System affirms. Often women who do not fit this syndrome are seen as 'fighting back'. Whereby feminists argue a defence should be based upon the notion of self-defence, wherein reasonableness should incorporate a more gendered notion of self-defence.
In conclusion, whilst these theories serve to construct gendered criminological ideologies of female criminality, they also serve to cast women within the domain of moral panic and hysteria, which consequently may have influenced both penal and legal policy makers alike to classify female criminality within biological rooted 'illness' or 'disorders'.
Accordingly Walker 1973: 302) states 'the labelling of deviancy as sickness treats female criminality as mentally abnormal. Accordingly, Smart (1976) is of the view that double standards of morality and gender stereotypes are represented both within criminal law and the justice system which results in discriminating against women both as victims and as offenders.