No Greater Provocation? Adultery and the Mitigation of Murder in English Law

2015 ◽  
Vol 34 (1) ◽  
pp. 199-225 ◽  
Author(s):  
K.J. Kesselring
Keyword(s):  
Gender Bias ◽  
Political Correctness ◽  
Attorney General ◽  
Loss Of Control ◽  
Sexual Infidelity ◽  
The Past ◽  
Norms And Values ◽  
The Common ◽  
And Gender ◽  
Court Of Appeal

Reformers in much of the common law world have recently turned their attentions to laws pertaining to murder and manslaughter; however, perceptions of the past maintain a hold. In England and Wales, the Coroners and Justice Act (2009) abandoned notions of provocation that developed in the seventeenth century, instead stipulating that “loss of control” would serve as the means of mitigating charges of murder to a lesser offence. If a person has reasonable grounds for losing control, of a sort that accords with contemporary norms and values, that loss of control can be adduced as a partial defense on a homicide charge. Concerns about blaming victims and gender bias have helped shape the shift away from provocation defenses. Whether a married woman's sexual infidelity might in some way serve as a partial defense that moderates her husband's killing of her from murder to something less serious has proven especially controversial. (The reverse, a wife killing an adulterous husband, receives far less attention, but then women kill their partners for any reason far less often.) Drafters of the 2009 act expressly abandoned the older notion that sexual infidelity constituted sufficient provocation to mitigate charges in a husband's killing of his wife. Angry, jealous men killing their spouses in revenge or a passionate rage might no longer cite infidelity as sufficient provocation to kill. Some people, including lawmakers and judges, expressed concerns about the change. One MP (and later attorney general) complained that “thousands of years of human experience and history should be jettisoned for a piece of political correctness.” He need not have worried: recently, the decision in R. v. Clinton (2012) reintroduced the substance of the defense in a new guise, seeing a wife's adultery not as provocation, but as a trigger for a husband's understandable “loss of control.” Among other factors, the Court of Appeal alluded to “experience over many generations” in treating a man's suspicion of his wife's sexual infidelity as reasonable grounds for mitigation.

scholarly journals Forty Years of Death: The Past, Present, and Future of the Death Penalty in South Carolina (Still Arbitrary after All These Years)

2018 ◽  
Author(s):  
John H. Blume ◽  
Lyndsey S. Vann
Keyword(s):  
South Carolina ◽  
Supreme Court ◽  
Gender Bias ◽  
Death Penalty ◽  
Capital Punishment ◽  
The United States ◽  
The Past ◽  
The Supreme Court ◽  
And Gender ◽  
Looking Back

11 Duke Journal of Constitutional Law & Public Policy 183 (2016)Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American death penalty continues to be administered in an unconstitutionally arbitrary manner. This Article presents data from South Carolina’s forty-year experiment with capital punishment and concludes that the administration of the death penalty in that state is still riddled with error and infected with racial and gender bias. It is — in short — still arbitrary after all these years. The authors maintain that the only true cure it to abolish South Carolina’s death penalty, although they do argue that lesser steps including additional safeguards and procedure may limit, but will not eliminate, some of the arbitrariness and bias which are present in the current imposition of South Carolina’s most extreme punishment.

Anti-Immigration Propaganda in the Northern League and the Freedom Party of Austria

2021 ◽  
Vol 65 ◽  
pp. 81-100
Author(s):  
Caner Tekin
Keyword(s):  
Western Europe ◽  
Female Workers ◽  
The Past ◽  
Northern League ◽  
Female Migrants ◽  
The Common ◽  
Gender Perspectives ◽  
And Gender ◽  
Gender Images

Over the past two decades, populist-radical parties of Western Europe arguably re- vised their propaganda towards the rejection of Muslim migrants with gender-sen- sitive arguments. Among these parties, the Northern League (LN) and the Freedom Party of Austria (FPÖ) achieved their electoral breakthrough thanks to their anti-mi- gration campaigns, which, inter alia, aligned peculiar gender perspectives with long- term attitudes towards ethnicity, welfare and Islam. Drawing on the LN’s and FPÖ’s election programmes, visuals and leader statements from the early 2000s, the present article discusses the common assumptions regarding the populist radical right’s dis- cursive changes towards anti-Islamism. The paper argues that the two parties in the mentioned period forged their propaganda against the rejection of Muslim migrants in religious and gender-sensitive terms, but their ethnic and class-oriented exclusions equally remained. The documents in question also revealed that these parties recent- ly softened their attitudes towards migrant caregivers to preserve traditional gender images in Austria and Italy. The LN’s and FPÖ’s long-term preoccupations with Ital- ian and Austrian women’s roles in worklife, family and reproduction are likely to bring about changes in the conceptions of female migrants in the care sector. The question still remains whether the parties began to tolerate Muslim female workers, since their propaganda, in contrast to the literature, did not suggest the acknowledgement of Muslims in any of the labour fields.

scholarly journals R v Clinton and others

2012 ◽  
Vol 24 (1) ◽  
pp. 153-168
Author(s):  
James Slater
Keyword(s):  
Self Control ◽  
Loss Of Control ◽  
Sexual Infidelity ◽  
Loss Of Self ◽  
Chief Justice ◽  
Court Of Appeal

SEXUAL INFIDELITY AND LOSS OF SELF-CONTROL: CONTEXT OR CAMOUFLAGE?R v Clinton and others involved three appeals from trial on various matters concerning the “loss of control” partial defence to murder created by the Coroners and Justice Act 2009 („the Act‟).1 This case commentary is concerned with the appeal of Jon Jacques Clinton, as it addressed the ambit of the Act‟s controversial exclusion of sexual infidelity from the grounds upon which a defendant can base her loss of self-control.2 The Court of Appeal‟s decision (Lord Chief Justice, Henriques J, Gloster J) is not uncontroversial itself, since it has significantly reduced the potential ambit of this exclusion.

scholarly journals Future In The Past: The Problem Of Values In Transatlantic Relations

2006 ◽  
Vol 11 ◽  
pp. 9-29
Author(s):  
Ana-Maria Stoian
Keyword(s):  
Transatlantic Relations ◽  
Second World War ◽  
Comparative Approach ◽  
World War ◽  
The Past ◽  
Norms And Values ◽  
The Us ◽  
The Common ◽  
Second World ◽  
The Eu

This paper discusses the importance of norms and values in the transatlantic relations. Beginning with the values that shaped the transatlantic partnership at the end of the Second World War, the analysis questions the redefinition of transatlantic values at the beginning of the 21st century, emphasizing patterns of convergence and divergence. Using a comparative approach, the article presents values, norms and principles explaining the domestic and international behaviour of the US and the EU. The main argument of the paper is that there are not two different sets of values, a European and an American one, but a single transatlantic set of values (a Western one), with some distinct elements and approaches. There is not a great departure from the common matrix of values so that to endanger the US-European relationship indefinitely.

The Application of the Principles of Vicarious Liability in Minister of Safety and Security v Morudu: A Critical Analysis

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Thembinkosi W Maseko
Keyword(s):  
Constitutional Court ◽  
Bill Of Rights ◽  
Constitutional Democracy ◽  
High Court ◽  
Vicarious Liability ◽  
The Past ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Court Of Appeal

The past twenty years of South Africa’s constitutional democracy have been challenging for the courts. However, the courts have managed to develop the common-law principle of vicarious liability in conformity with the spirit, purport and objects of the Constitution. What is concerning, though, is that the courts are still grappling with the application of the law of vicarious liability, despite this area of the law having been developed by the Constitutional Court. A case in point is Minister of Safety and Security v Morudu 2016 (1) SACR 68 (SCA), where the Supreme Court of Appeal (SCA) incorrectly rejected the decision of the High Court that the state was vicariously liable. This article argues that the SCA should have upheld the decision of the High Court on the basis of the factors that point to a close connection between the conduct of the policeman and his employment. The factors include that the actions of the policeman violated the rights of his victims and that the nature of his employment presented him with an opportunity to commit the crime. The failure of the SCA to consider these factors and uphold the decision of the High Court is therefore at odds with the Bill of Rights and contrary to the law of vicarious liability as developed by the Constitutional Court.

scholarly journals The Constitutional Role of the Courts under the NZ Bill of Rights: Three Narratives from Attorney-General v Taylor

2017 ◽  
Vol 48 (4) ◽  
pp. 547
Author(s):  
Claudia Geiringer
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Attorney General ◽  
Bill Of Rights ◽  
Close Analysis ◽  
The Common ◽  
The Relationship ◽  
Court Of Appeal

In Attorney-General v Taylor, New Zealand's Court of Appeal upheld the High Court's recognition, and exercise, of an implied jurisdiction to make (non-binding) declarations of legislative inconsistency with the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights). Recognition of this novel jurisdiction says something important about the evolution of judicial-legislative relations under the NZ Bill of Rights. The question is: what exactly? This article suggests that a close analysis of the Court of Appeal's decision in Taylor in fact discloses three interwoven narratives that speak to the constitutional role of the courts in enforcing the NZ Bill of Rights: the NZ Bill of Rights as "legal benchmark"; the NZ Bill of Rights as "facilitator of inter-branch dialogue"; and the "common law-fuelled bill of rights". The article unpicks these narratives, explores the relationship between them and discusses the extent to which they succeed in accommodating or justifying the new declaratory remedy.

Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity

2012 ◽  
Vol 76 (3) ◽  
pp. 254-275 ◽  
Author(s):  
Dennis J. Baker ◽  
Lucy X. Zhao
Keyword(s):  
Normal Control ◽  
Normal Person ◽  
Loss Of Control ◽  
Sexual Infidelity ◽  
The Third ◽  
Turn On ◽  
Normal Degree ◽  
Objective Tests ◽  
Per Se ◽  
Court Of Appeal

This article considers the decision of the Court of Appeal in R v Clinton where Lord Judge CJ speaking for the Court of Appeal held that sexual infidelity could be considered under the third prong of the new partial defence of loss of control, even though it is expressly excluded under the second prong. We argue that sexual infidelity is excluded from being considered under all the prongs of the new defence. It is expressly excluded as a form of qualifying provocation, which means it cannot be considered as a ‘circumstance’ that might prevent a person of D's sex and age with a normal degree of tolerance and self-restraint from killing. The objective tests in the new defence overlap, because the jury already has objective self-restraint in mind when it is considering the objectiveness of the provocation. When the jury is considering whether a normal person would have been provoked by the victim's conduct, it is also considering whether a normal person would have exercised self-restraint. Conceptually, these are two aspects of a single broader question: Was it reasonable for the defendant to lose control? Therefore, the jury cannot consider whether sexual infidelity prevented a person of a normal degree of tolerance from exercising control, even if it is a circumstance that relates to some other qualifying trigger. Where sexual infidelity is a (major) contributory trigger for the loss of control, it should not be considered under any of the prongs of the defence. If D has been taunted about his impotence in circumstances where he is enraged by his wife's sexual infidelity, the defence will only be made out if the jury accepts that the taunts about the impotence constituted objective provocation on their own, and that the taunts about the impotence per se might have prevented a person of normal control and tolerance from exercising self-restraint. The sexual infidelity would have to be compartmentalised, so that the jury would not be influenced by it.

scholarly journals Impact of COVID-19 Pandemic on Ordinary People; A Social Distancing Challenge

2021 ◽  
Author(s):  
Fahim Aslam
Keyword(s):  
Human Life ◽  
The Novel ◽  
Ordinary People ◽  
Gender Based Violence ◽  
The Past ◽  
Technological Adaptation ◽  
The Common ◽  
Gender Based ◽  
And Gender ◽  
Novel Coronavirus

COVID-19 has become a part of everyone's day-to-day life, since the outbreak in 2019 the novel coronavirus disease (COVID-19) has caused more than 4.5 million deaths with over 200 million cases reported globally. Currently, the number of infections and deaths are gradually lowering in different countries however the underlying challenges still exist. COVID-19 threatens human life, social functioning and development. Although numerous studies have been carried out in the past to highlight the key challenges very limited studies have been conducted from an ordinary person's viewpoint. In the fight against COVID-19, humanity has been pushed to a level which cannot be accepted where establishing that balance is a priority. This study focuses on highlighting the common issues faced by the ordinary public in the current era. Five key areas were identified to be the most essential; education, technological adaptation, transportation, mental health and gender-based violence (GBV).

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