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The types of defence have changed, but men are still getting away with rape and murder under a misogynistic justice system

The types of defence have changed, but men are still getting away with rape and murder under a misogynistic justice system
4 min read

How the criminal justice system treats men who kill their wives needs a thorough review and must be modernised in line with our understanding that there can be no excuses for domestic violence.

I’ve spent decades complaining about how the criminal justice is biased against women. And we still are because most of the old problems remain and new injustices have arisen.

Killing someone is the most heinous crime. But when it comes to domestic homicide, where the husband or boyfriend is the killer, the criminal justice system takes his side against her. That is made easier by the fact that she is not there to speak for herself. He admits that what he did, and intended to do, killed her. But then the courts resound with his excuses. It used to be the provocation defence, that though he killed her it was her fault rather than his as she had provoked him by having an affair, or failing to look after the house properly, or not respecting him.

In Scotland it was called the “infidelity” defence. Though he had killed her he would stand in the dock as the victim of her provocation. That used to reduce the charge of murder to manslaughter and often he’d walk from court with a suspended sentence. After decades of campaigning, that changed in 2009 when we abolished the provocation defence for jealous husbands.

The police service who investigate is male dominated. As is the prosecution service which takes the case to court and the judiciary which hears the trial

But no sooner had one misogynous defence been ended, another raised its ugly head. 

A particularly perverse “modern” version of male excuses emerged in the “rough sex gone wrong” defence. He’d admit it was his actions that killed her, by strangulation or causing haemorrhaging from internal injuries. But he’d evade a murder charge by asserting that it was her fault because it was sex in the way she wanted it. That appalling defence which saw the dead victim’s reputation trashed in court has just been abolished in the Domestic Abuse Bill 2020.

But we’ve still got a problem with the old common law defence of diminished responsibility, which, in cases of domestic violence, has got a grisly circularity. He claims that he can’t have had responsibility for his actions otherwise he wouldn’t have killed her. Her dead body is itself the proof that his responsibility was diminished. So once again it’s manslaughter not murder, he escapes the life sentence and spends a couple of years in prison. That needs to be stopped. The whole issue of how the criminal justice system treats men who kill their wives needs a thorough review and needs to be modernised in line with our understanding that there can be no excuses for domestic violence.

Men used to get away with rape arguing that she was “asking for it” by wearing a short skirt or by getting drunk. We were invited to understand that when he heard her say “no” he thought she meant “yes”. That can no longer be argued in court. But there are still so many cases where he exculpates himself by bringing up her previous sexual history on the basis that if she’d had sex with many other men she must have been prepared to have sex with him.

“She shouldn’t have been wearing a short skirt” has been replaced with “she shouldn’t have gone on an internet date or “she shouldn’t have sent flirty texts”.

The number of men prosecuted for rape has fallen to the lowest level since records began. While rapes increase, prosecutions and convictions in England and Wales have more than halved. So that needs a thorough review to sort it out too.

The police service who investigate is male dominated. As is the prosecution service which takes the case to court and the judiciary which hears the trial. We need to change the laws but we also need our criminal justice agencies to be led by a team of women and men working together to ensure we make progress.

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