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Going Full Circle: Gender and the ‘Loss of Control’ Defence under the Coroners and Justice Act 2009

Author:

Allison Wu

LSEGB
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Abstract

It has long been acknowledged that the old provocation defence not only privileged male emotional states but also excluded battered women who killed their abusers out of fear. The defence was too often relied on by violent men who killed their partners out of sexual control and possessiveness; yet, battered women who killed their abusers were often denied the defence. Partly in response to these criticisms, the provocation defence was reformed. The elements of the new loss of control defence are outlined in s 54(1) of the Coroners and Justice Act 2009 (“CJA”). This article argues that the changes evinced by the CJA have not corrected the gender bias that afflicted the old provocation defence. It goes on to examine the theoretical basis of the new loss of control defence and argues that its theoretical incoherency reinforces gendered thinking which continues to penalise women. Finally, this article concludes that ‘fear of serious violence’ should be removed as a qualifying trigger and supports proposals to establish a partial defence of excessive self-defence instead. 

How to Cite: Wu, A., 2020. Going Full Circle: Gender and the ‘Loss of Control’ Defence under the Coroners and Justice Act 2009. Rule of Law Journal, 1(1), pp.46–54.
Published on 13 Dec 2020.
Peer Reviewed

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