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References
Recent additions to the vast literature include Aileen McColgan, “In Defence of Battered Women who Kill”,Oxford Journal of Legal Studies 13 (1993), 508–529; Donald Nicolson and Rohit Sanghvi, “Battered Women and Provocation: The Implications ofR. v. Ahluwalia”,Criminal Law Review [1993], 728–738; Katherine O'Donovan, “Defences for Battered Women Who Kill”,Journal of Law and Society 18 (1991), 219–240;idem, “Law's Knowledge: The Judge, the Expert, The Battered Woman and Her Syndrome”,Journal of Law and Society 24 (1993), 427–437; Celia Wells, “Battered Woman Syndrome and Defences to Homicide: Where Now?”,Legal Studies 14 (1994), 266–276; Alison Young, “Conjugal Homicide and Legal Violence: A Comparative Analysis”,Osgood Hall Law Journal 31 (1991), 761–808.
See e.g. Carol Smart, “Law's Power, the Sexed Body, and Feminist Discourse”,Journal of Law and Society 17 (1990), 194–210, especially at 203–204.
R. v.Thornton [1992] 1 All E.R. 306;R. v.Ahluwalia [1992] 4 All E.R. 889.
In addition to the references in n.1supra, see Susan Edwards, “Battered woman syndrome”,New Law Journal 142 (1992), 1350–1351; Helena Kennedy,Eve Was Framed: Women and the Criminal Justice System (London: Chatto & Windus, 1992), ch.8; Stanley Yeo, “Battered woman syndrome in Australia”,New Law Journal 14 (1993), 313–14.
S. Parsloe, “Battered by men and bruised by the law”,The Law Magazine 4 (September 1987), 22–23, describing the process of obtaining restraining injunctions against violent men.
R. v. Camplin [1978] 2 All E.R. 168 and see nowR. v. Morhall (1994) 98 Cr.App.R. 108.
[1949] 1 All E.R. 932.
[1992] 1 All E.R. 306, 313b–314c.
[1992] 4 All E.R. 889, 894b–896g.
Ibid, at 896h–899g.
See section 4,infra.
Supra n.8, at 314h–315g.
Instead, she was blamed for consistently denying an intention to stab Malcolm:ibid, at 315g–316g.
Supra n.9, at 899g–900f.
See Nicolson and Sanghvi,supra n.1, at 736.
Indeed, theAhluwalia decision opens with a recognition that the case had “aroused much public attention”:supra n.9, at 891g-h.
Pat Carlen and Anne Worrall,Gender, Crime and Justice (Milton Keynes: Open University Press, 1987), 2–8.
Carol Smart,Women, Crime and Criminology: A Feminist Critique (London: Routledge, 1976), 52.
Supra n.18, at 2
[1992] 1 All E.R. 306, 308h–311g and [1992] 4 All E.R. 889, 891j–893h, respectively. All subsequent references and quotations from the cases are contained in these passages.
For a discussion of fact construction, see Donald Nicolson, “Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse”,Modern Law Review 57 (1994), 726–744, 737–739.
The following discussion draws upon William Twining,Rethinking Evidence: Exploratory Essays (Oxford: Basil Blackwell, 1990), ch. 7.
See e.g. Peter Goodrich,Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis (London: MacMillan, 1987).
Compare theThornton judgment with Jennifer Nadel,Sara Thornton: The Story of a Woman Who Killed (London: Victor Gollancz, 1993).
Compare Alison Young, “Femininity as Marginalia: Conjugal Homicide and the Judgement of Sexual Difference”, in Sean McVeigh, Peter Rush and Alison Young, eds.,Criminal Legal Practices (Oxford: Oxford University Press, 1995, forthcoming); Peter Rush and Alison Young, “The Law of Victimage in Urbane Realism: Thinking Through Inscriptions of Violence”, in David Nelken, ed.,The Future of Criminology (Beverly Hills: Sage, 1994), 154–172.
Contrary to her own belief at the time of the trial, Sara was in fact never expelled. See Nadel,supra n.25, at 19–21.
See e.g. Kennedy,supra n.4, ch.5.
See e.g. R. Emerson Dobash and Russell P. Dobash,Women, Violence and Social Change (London: Routledge, 1992), 222ff.
According to Sara, Malcolm had threatened her “bloody daughter”: Nadel,supra n.25, at 75.
Note the echoes of the language of battered women syndrome. See section 4,infra.
Cf.Hilary Allen,Justice Unbalanced: Gender, Psychiatry and Judicial Decisions (Milton Keynes: Open University Press, 1987), 47, and cf. generally Costas Douzinas and Shaun McVeigh, “The Tragic Body: The Inscription of Autonomy in Medical Ethics and the Law”, in Shaun McVeigh and Sally Wheeler, eds.,Law, Health and Medical Regulation (Aldershot: Dartmouth, 1992), 1–34, at 26–29.
See also [1992] 4 All E.R. 889, 891, 893d-e.
Although Liz Kelly has suggested replacing the term “victim” with “survivor” because of the former's connotations of passivity:Surviving Sexual Violence (Cambridge: Polity, 1988), 159–87, “victim” has been retained as consistent with the language of the two judgments. Cf. also Dobash and Dobash,supra n.29, at 40.
Even those features of his personal biography relevant to Sara's ordeal were presented as simply details relating to Malcolm: see section 2.1.
See section 2.2.
Supra n.26. Compare
Nadel,supra n.25, at 88–91.
See also section 2.5
See the first quotation at p.199, above. This was possible because the jury's rejection of the accident theory was not appealable.
See e.g. Ann Jones,Women who Kill (London: Victor Gollancz, 1991); Kennedy,supra n.4; Nadel,supra n.25, ch.7.
See the references in n.1,supra.
See e.g. Frances Heidensohn,Women and Crime (London: MacMillan, 1985), chs. 5 and 6; Susan S.M. Edwards, “Gender Justice? Defending Defendants and Mitigating Sentences”, in Susan S.M. Edwards, ed.,Gender, Sex and the Law (London: Croom Helm, 1985), 129–158.
Cf. Heidensohn,ibid., at 98ff and ch.7 and see also Edwards, “Male Violence against Women: Excusing and Explaining Ideologies in Law and Society”, in Edwards,ibid., at 183–216.
See e.g. Smart,supra n.19, at ch.6; Allen,supra n.33;idem, “Rendering Them Harmless: The Professional Portrayal of Women Charged with Serious Violent Crimes”, in Carlen and Worrall,supra n.18, at 81–94.
Cf. Lady Macbeth inMacbeth, Act I, sc. V, 38–40: “Unsex me here, / And fill me, from the crown to the toe, top-full / Of direst cruelty”. It is note-worthy that Lady Macbeth's complicity in murder ultimately drove her mad.
Allen,supra n.33, especially at 41ff.
Cf. Alan Norrie,Crime, Reason and History (London: Weidenfeld & Nicolson, 1993).
Allen,supra n.33.
See references in n.1,supra.
Whereas provocation is tested according to the standard of the reasonable person with the same gender as the defendant (see text at n.6,supra), no such qualification has been made to the self-defence standard.
Cf. Heidensohn,supra n.48, at 88–89.
Allen,supra n.33, especially ch.3.
See section 1.2,supra.
Jeremy Horder,Provocation and Responsibility (Oxford: Oxford University Press, 1992), 188–91.
See at 149,supra.
See at 150,supra.
Nicolson and Sanghvi,supra n.1, at 737.
See Lenore Walker,The Battered Woman (New York: Harper and Row, 1979);The Battered Woman Syndrome (New York: Springer, 1984).
See n.36,supra.
See e.g. the references in n.1,supra.
Cf. Allen,supra n.33, at 122.
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Nicolson, D. Telling tales: Gender discrimination, gender construction and battered women who kill. Feminist Legal Stud 3, 185–206 (1995). https://doi.org/10.1007/BF01104112
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DOI: https://doi.org/10.1007/BF01104112