Introduction

What does it mean to master one’s emotions? That was a question posed at an interdisciplinary conference, ‘Mastering the Emotions: Control, Contagion and Chaos, 1800 to the Present Day’, held at the Centre for the History of Emotions at Queen Mary, University of London in June 2011. For some time now my research has focused on those who fail to master their emotions—specifically, men who kill their current and former wives. In the typical scenario, these men claim their victims’ ‘sexual infidelity’ caused them to succumb to ‘red mist’ homicidal fury. They then resort to she-asked-for-it provocation defences which, if successful, reduce murder to manslaughter. Over the last 30 years, feminist law scholars across all Anglophone jurisdictions have produced scathing critiques of the operation of provocation defences in hundreds of femicide cases. The evidence that these provocation defences operate in profoundly sexed ways is unequivocal—for centuries and still today, the law of provocation, our most emotional law, has facilitated men’s claims that sexual infidelity provides them with a moral warrant for murdering ‘unfaithful’ wives. Law reforms have had little impact on this time-honoured conceit but in 2009, legislators controversially abolished the provocation defence in England and Wales, replacing it with a new defence that expressly excluded sexual infidelity as a trigger for loss of control. Seizing on this reform as a new opportunity to continue exploring the question of men’s mastery or lack thereof over their emotions in Britain, I submitted a proposal for a paper titled ‘Hell Still Hath No Fury: Law’s Concession to Passion’s Homicidal Excesses’ to the ‘Mastering the Emotions’ Conference organisers.

This article retells the tale I told in that conference paper by way of prolegomenon to thinking through the implications of the intriguing response of a conference delegate. The issues raised, he said, were too important to be confined to academic conferences. Hard truths about so-called ‘crimes of passion’ needed to reach a wider audience. Given my experience with academic audiences, legal ones especially evincing a studied indifference and sometimes veiled hostility to my critique of criminal courts’ handling of ‘infidelity’ killings, the idea of attracting a wider audience, informing it about what criminal courts are up to and reformers up against in the field I call ‘red mist’ murder, was very appealing. But as campaigners for any form of justice know, stirring up and maintaining rage over the suffering of victims is hard work, labour made that much more difficult when it comes to any form of violence against women, especially the ‘domestic’ kind. Compassion fatigue sets in so early there. Meanwhile, the latest spate of appeals against murder convictions in ‘infidelity’ murder cases, all featuring women wanting to leave marriages, has put into stark relief the failure of a decade of law reform effort to ban ‘sexual infidelity’ as mitigating emotional excuse for murder in England and Wales. With Court of Appeal judges determined to defy the reformers, the continuing salience in the criminal courts of ‘sexual infidelity’ as excuse for murder cries out for interrogation by a public engagement project (The Project).

Bringing media and public attention to the endless string of cases in which men plead the excuse of ‘infidelity’ when they kill women who leave them; exposing law’s complicity in excusing these femicides as ‘crimes of passion’; going so far as to interrogate the concept of ‘crimes of passion’ and the time-honoured distinction between hot and cold-blooded murder; suggesting that as domestic homicides are just as, if not more serious crimes as non-domestic homicides they should carry the same penalties; testing public opinion on such matters as whether the discovery of a former partner’s establishment of a new relationship should mitigate sentence, as it now does, if the previous partner kills her in a jealous rage; bringing pressure to bear on Parliament to revisit its 2009 reforms of partial defences to murder and establish another more robust, and certainly more feminist-informed inquiry into the role played by ‘infidelity’ in defences in femicide cases, these are the Project’s (admittedly wildly ambitious) aims. In short, the Project is a call to arms to a new generation of feminist academics and activists of any ilk, anyone interested in challenging the antiquated sexual politics that undergirds the notion that ‘unfaithful’ women provide men who kill them with mitigating excuse for homicidal ‘passion’.

Coming from a socio-legal and criminological perspective as I do, it seems to me that a project that intends to contest infidelity as excuse for femicide and, indeed, the very concept of a ‘crime of passion’ might draw productively on the approach taken by Carol Smart in her now classic Feminism and the Power of Law (1989), an approach many mistakenly read at the time as advising a retreat from feminist legal activism.Footnote 1 Smart has recently reaffirmed that her counsel to decentre law was “never meant to mean” that feminists should refuse to engage with law. Despite misgivings about feminists investing too much in law reform, she was always of the view that law is an invaluable site of discursive struggle (2012, 162–164 and 1998, 88). Even after uncovering the resistance of the legal profession to recognising child abuse as harmful, she never wavered from the conviction that law “understood in its widest meaning, is still one of the most important sites of engagement and counter-discourse”. The criminal justice system and legal practice still remained the most important—albeit “the most problematic”—sites for critical feminist interventions (Smart 1999, 392 and 407). Sexual infidelity homicide cases, I suggest, are ideal sites for continuing such “endlessly valuable” discursive work (2012, 164)—work that converts them into a critical, pedagogical means of mobilising consciousness about emotional excuses for violence against women. Should loss of self-control still have mitigating effect in law? Do men who kill women after failing to master their obsessive jealousy and possessiveness deserve sympathy? Should judges continue to dish out ‘compassion’ to passion killers, or should criminal courts send out a clear message that men are required to keep a grip when their partners leave them? Might public pressure be brought to bear on legislators to reject the proprietary right enshrined in law for centuries that men believe entitles them to resort to retaliatory violence over ‘infidelity’?

This article is a first step, effectively a call for assistance in setting up a public education project conceived as a new front against domestic homicide’s continuing cultural and legal permissions. The goal is to engage a new generation of feminist scholars and activists in challenging the sexual politics that undergirds a killing statistic that has remained constant in the UK for at least the last 30 years—the murder of two women a week by their male partners or former partners. Focusing not just on the occasional sensationalised cases but on obscure ones retrieved from the archive, the Project plans to reclaim from oblivion the names and lives of some of the thousands of silenced and forgotten victims, bringing their collective suffering to critical attention, transferring to them the empathy usually reserved for their killers. By opening up sexual infidelity homicide as a new field of affect, identification, memory and witnessing, it hopes to reignite late twentieth century challenges to law and our culture’s continuing complicity in violence against women. In doing so it joins those pockets of feminist resistance, feminist legal projects included, that are today busy unpacking the civilised veneer of neoliberal ‘tolerance’—tolerance, that is, of all manner of sexist subordinations of women and girls (McRobbie 2009; Bray 2009).Footnote 2 Mindful of the wall of disavowal one encounters when challenging culturally sanctioned excuses for men’s violence against women, I do not embark on this project lightly. Notwithstanding the resistance of large sections of the legal profession to meaningful reform when it comes to reigning in male possessory right disguised as ‘passion’, I remain hopeful that attracting public attention to the continuing purchase of her ‘sexual infidelity’ as excuse for his homicidal rage in the provocation by infidelity case law might help kick-start a movement against the notion that ‘infidelity’ in any form—most commonly, her desire to leave him—should excuse retaliatory violence.

Engaging an Audience with Provocation by Sexual Infidelity: A Brief History of Homicidal ‘Passion’

The politics of voice—who speaks for whom and about what; who, ethically, can speak for oppressed groups, for minorities, survivors, the dead?—remains one of late modernity’s most pressing political issues, vexing truth commissions, activists and critical scholars of all persuasions. Just as crucial is the question of who will listen, of audience reception or “voice potential” as Iago named it in Othello (Magnusson 2004). Indeed, the politics of audience reception has become for me a research area in its own right, one pivotally important for anyone wishing to establish a public engagement project (e.g. Howe 2010). I have discussed elsewhere audience reactions to my work on infidelity homicide, most memorably that of a legal audience to a paper delivered at a putatively critical but decidedly non-feminist law conference (Howe 2012a).Footnote 3 Here I want to tell the tale of a paper delivered to an interdisciplinary conference where no law academics were present—The Queen Mary Centre for the History of Emotions Conference on ‘Mastering the Emotions’—by way of highlighting the difficulty of engaging a non-legal audience (a notional wider public?) with a full-frontal challenge of ‘sexual infidelity’ as excuse for murder.

I began my presentation by explaining that for centuries the law of provocation has played out in the criminal courts as a right to passion, a right developed in the law of murder in the context of hot-blooded killings, so-called crimes passionel. Traditionally, blood could not cool if the killer was to escape a murder conviction. If it cooled then ‘that which was passion first, is malice last; and that which should have been manslaughter then is murder now’.Footnote 4 The hotter the spurned love of the homicidal cuckold, the more he succumbed to the heat of passion, the better his chance of escaping the noose. Reiterating that point in an 1837 case, Judge Coleridge observed that “though the law condescends to human frailty” it “considers man to be a rational being, and requires that he should exercise a reasonable control over his passions”.Footnote 5 So the right to passion was a supposedly limited right founded on a concession to ‘human infirmity’, to failing to master emotions when provoked. The limitations were set down in an 1869 provocation case:

When the law says that it allows for the infirmity of human nature, it does not say that if a man, without sufficient provocation, gives way to angry passion, and does not use his reason to control it—the law does not say that an act of homicide intentionally committed under the influence of passion is excused or reduced to manslaughter.Footnote 6

When it comes to infidelity by provocation however, a perusal of 300 years of English case law indicates that more often than not law has done precisely that—excused intentional homicide committed under the influence of ‘passion’, reducing murder to manslaughter in wife-killing provocation cases.

Passion, it seems, is regarded as difficult, perhaps impossible to master. As Judge Devlin put it in his much-cited judgment in the 1949 case of Duffy, one lending itself so aptly to a conference on mastering emotions, provocation was an act or series of acts

done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her not master of his mind.Footnote 7

The ‘his or her’ formatting of persons subject to passion and failing to master their emotions was occasioned by the fact that Duffy was a woman. Killing her sleeping husband after a long history of domestic violence did not endear her to the judge. He could not see how a sleeping man could render a woman so transported by passion that she would resort to homicide. Sentencing Duffy, Judge Devlin set himself against widening the defence to cater for the kinds of circumstances in which women killed men. In his view, one widely shared, the exceedingly rare case of a woman killer, even of a battered woman killer, did not fit the bill of an extenuating crime of passion. Accordingly, he felt he could take a more victim-orientated approach in his summing up to the jury which is remarkable for an expression of sympathy for the victim never seen in wife-killing cases:

A long course of cruel conduct may be more blameworthy than a sudden act provoking retaliation, but you are not concerned with blame here…the blame attaching to the dead man. You are not standing in judgment on him. He has not been heard in this court. He cannot now ever be heard. He has no defender here to argue for him. It does not matter how cruel he was, how much or how little he was to blame, except in so far as it resulted in the final act of the appellant. What matters is whether this girl had the time to say: ‘Whatever I have suffered, whatever I have endured, I know that Thou shall’t not kill’.Footnote 8

Not concerned with blaming the victim, a pointed refusal to stand in judgment of him? What a far cry it is from the far more common wife-killing case where the victim is always blamed, always judged for her failings as a wife, her nagging and shagging as the highly sex-specific provocation defence came to be colloquially called in Britain. No defender for her, no articulated regrets that she has not been heard, that she can never be heard, having been silenced forever by her provoked killer. As for asking Duffy whether she had time to reflect that whatever she had endured, she knew that ‘Thou shall’t not kill’, that question has never been asked of any male defendant in the entire history of the English law of murder.

Discovering your wife has been unfaithful is the typical scenario in a crime of passion, it having been accepted for centuries that, as was stated in the famous early eighteenth century English case of Mawgridge:

when a man is taken in adultery with another man’s wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for jealousy is the rage of a man, and adultery the highest invasion of property.Footnote 9

They were indeed thinking of men. The endlessly rediscovered fact that it is overwhelmingly jealous, controlling men who are the perpetrators of infidelity homicide while the rare woman who kills a male partner does so almost exclusively in self-defence after a long history of violence has been reported too many times to record here. Suffice it to say that researchers today keep discovering what feminist research has found over the last three decades—that in femicide ‘passion’ is usually linked to sexuality (his allegedly demeaned, hers astray); that many defendants in the early English cases that defined voluntary manslaughter were men who had killed adulterous wives or their lovers and that for centuries only husbands could invoke the provocation defence when they killed after witnessing adultery. Moreover, femicide cases still trouble law reformers attempting to restrain and regulate men’s homicidal ‘passion’ while simultaneously trying to take account of the very different circumstances in which women usually kill men (e.g. Victorian Law Reform Commission 2004).

At about this point in my presentation as in any on this fraught topic it became necessary to point out once again that the sexed asymmetry in the matter of who kills whom and who pleads passion/provocation has remained constant over the centuries.Footnote 10 A few statistics had to suffice. Approximately 90 % of infidelity killings are committed by men, rising to 100 % in some jurisdictions if murder suicides are included.Footnote 11 Of the four women executed for murdering their husbands in twentieth century Britain, his infidelity was raised as a motive in just one case—that of a woman hanged in 1934 for poisoning her husband. She was said to be jealous of a woman neighbour.Footnote 12 My search of ‘infidelity’ cases in Court of Appeal and Old Bailey records revealed only three cases of women appealing sentences of murder for killing unfaithful husbands for the period 1800–2011 amidst 100s of men who had killed wives (Howe 2012b). It revealed too that passion killing has metamorphosed since Mawgridge condoned a husband killing a man found in flagrante delicto with his wife. First, the victim is almost always the killer’s wife, rarely her new lover. Second, while in the early eighteenth century, ocular proof of adultery was required to heat a man’s blood enough to kill if he wished to avail himself of a provocation defence, by the late twentieth century, mere suspicion of her adultery sufficed. As Nourse found in her much-cited study of North American jurisdictions where provocation is still commonly referred to as the ‘heat of passion’ defence, law reforms designed to liberalise provocation defences by introducing a defence of ‘extreme emotional disturbance’ (EED) had transformed ‘infidelity’ into something quite different from the usual understanding of sexual betrayal. It became the ‘infidelity’ was that of “a fiancée who danced with another, of a girlfriend who decided to date someone else and the divorcée found pursuing a new relationship months after the final decree” (Nourse 1997, 1332–1333). While juries in EED states have returned manslaughter verdicts where defendants claim ‘passion’ in such circumstances, it needs to be emphasised that the received idea that extreme emotions in men are excusatory is not confined to American jurisdictions. Hot-blooded men who kill ‘unfaithful’ wives—code often for nothing more than a woman’s desire to leave him—are seen as deserving of law’s compassion. That’s how ‘passion’ plays out in all Anglophone jurisdictions, even those that abolish provocation defences.

Emotional Excuse for Murder: Exciting the Deepest Feelings and Passions

Next, I informed the conference about the early twenty-first century English law reform movement that was sparked by outrage over lenient sentences handed down to men who killed their wives in infidelity-inspired rages. Reformers took the seemingly radical step of enacting legislation abolishing the provocation defence, only to replace it with a new defence of loss of self-control. If successful, this new defence would have the same effect as successful provocation pleas, reducing murder to manslaughter. The new defence, set out in Sections 54–56 of the Coroners and Justice Act 2009, consists of three elements. First there must be a loss of self-control. Second, the loss of control has a qualifying trigger. Third, a person of the defendant’s sex and age, with a normal degree of tolerance and self restraint and in the circumstances of the defendant might have reacted in the same or in a similar way to the defendant. Pausing there, the re-affirmation of a differential standard of self-control for men and women in the reform legislation is noteworthy. Though barely noticed by English law commentators, this is extraordinary to an Australian observer, our High Court having long ago dispensed with a differential standard of control for women and men, the latter the obvious beneficiaries of a lower standard if provocation by infidelity case law is any guide. In a unanimous judgment in Stingel the court observed that while it may be that “the average power of self-control of the members of one sex is higher or lower than the average power of self-control of members of the other sex”, the “principle of equality before the law” required that everyone be held to the same standard of self-control.Footnote 13 The court was at one with a Canadian judge who had stated in a 1986 case that “the governing principle of equality” entailed that all persons be held to the same standard of self-control. For her, claiming that “persons of different sex” should be held to different standards of self-control would “clearly be unacceptable”.Footnote 14

How striking then that a differential standard of self-control for men and women was acceptable to the law reformers responsible for introducing the new defence of loss of control in England and Wales two decades later. Interestingly too, the retention of such a differential standard does not appear to have perturbed legal academics—feminists included—notwithstanding the fact that it can only serve to reinforce the notion, clearly illustrated in hundreds of years of case law, that men have less self-control than women in the face of ‘infidelity’.Footnote 15 By contrast, the triggers for loss of control in the new defence have received attention in the scholarly literature, critics focusing on the exclusion of sexual infidelity as a trigger for loss of self-control. How, some ask, could that be omitted from the list of things done or said that constitute extremely grave circumstances or that caused a defendant to have a justifiable sense of being seriously wronged?Footnote 16 It was the exclusion of this time-honoured excuse for homicidal passion that was massively controversial within the legal community, a controversy played out in the media and in the parliamentary debates about the proposed reforms. One media highpoint—the dispute between Harriet Harman, then Minister for Equalities and Lord Philips, then the Lord Chief Justice in November 2008—bears repeating here, illustrating as it does the deep feelings aroused by sexual infidelity homicide and its sometimes murderous consequences. Harman’s view was that the provocation defence needed to be abolished in its current form:

For centuries the law has allowed men to escape a murder charge in domestic homicide cases by blaming the victim. Ending the provocation defence in cases of infidelity is an important law change and will end the culture of excuses.

Responding, the Lord Chief Justice confessed to being “uneasy” about a reform that “so diminishes the significance of sexual infidelity as expressly to exclude it from even the possibility of amounting to provocation”. No ministerial statement had persuaded him that it was necessary for the law to “go that far”. The current law did not let men off lightly. It required provocation to be conduct that would cause a reasonable man to act as the defendant acted and if juries were declining to hold that infidelity meets this test, all was well and good. Harman persisted:

This defence is our version of honour killings and we are going to outlaw it. I am determined that women should understand that we won’t brook any excuses for domestic violence ... It is a terrible thing to lose a sister or a daughter, but to then have her killer blame her and say he is the victim of her infidelity is totally unacceptable. The relatives say ‘he got away with murder’ and they’re right.Footnote 17

This was the ideology of ‘victim-precipitation’ at its worst and the Minister for Equalities was not for turning.

The debate continued in the parliamentary deliberations on the bill, shrillest objections to the sexual infidelity exemption being raised in the House of Lords when the government pressed on with its move to stop men using a wife’s infidelity as a partial defence for murder. Emotions ran high over the idea of depriving men of the ancient right to plead provocation after killing an unfaithful wife. According to Lord Neill

The most common thing one reads in the press in murder cases is that the wife or husband finds the other spouse in the sexual act, loses control, picks up a bread knife or whatever comes to hand and stabs and sometimes kills the other spouse. That is French-style crime passionel. Are we now turning this into something that the English, with their stiff upper lip, will take as an ordinary incident of marital life? That is ridiculous and out of line with the way in which people think about human passions.Footnote 18

Infidelity was “one great terrible event that can happen in a married life” and it was sheer nonsense to disregard it. But the government was determined to “raise the bar”.Footnote 19

Raising the bar—that was the reformers’ hard-fought goal. The provocation defence was too generous to those who kill in anger and a “deliberate and carefully considered shift in policy” was required—killing an unfaithful partner and then seeking to blame the victim for what occurred was unacceptable in a modern democracy. Still the critics demurred. What was meant by ‘sexual infidelity’? Did it mean “only between married partners, does it mean between a man and a woman, or a man and a man”? Looking “back in history”, Lord Thomas recalled that in Mawgridge, finding one’s wife in adultery was described as one of the four categories of adequate provocation. If the law was to be based on loss of self-control, “how can we exclude the deepest feeling and passions, the breach of trust and breach of faithfulness, from our considerations?”Footnote 20 These were feelings one could not be expected to master.

The “deepest feelings and passions”—for Lord Thomas that was what was at stake in the debate.Footnote 21 Feelings were indeed high in the House of Lords. In October 2009 the lords voted against the motion to exclude sexual infidelity as a trigger for loss of control, the lords describing the proposal as “illogical”, “outstandingly obnoxious” and declaring it “little short of astonishing” that Parliament should presume to tell a jury whether sexual infidelity “is enough to cause a man or woman to lose their self-control” (my emphasis). Footnote 22 To Lord Neill it was absurd to tell a jury it could not take account of what most people recognised as

the most dominant cause of violence by one individual against another… Every opera you go to, every novel you read has sexual infidelity at some point or other – otherwise they are not worth reading or listening to.

Nothing could convince them of the government’s view that, as Lord Bach put it, “passions may run very high” over sexual infidelity, but it was no longer acceptable to resort to violence.Footnote 23 The following month the lower house overturned the peers’ vote, yet still the Conservatives baulked at the reforms. As Tory justice spokesperson (and now Attorney-General) Dominic Greaves saw it, the government had decided that “thousands of years of human experience and history should be jettisoned for a piece of political correctness and proclamation”.Footnote 24

Gender Neutrality Rules OK: Disavowing the Sex of Sexed Homicide

Couching their objections in scrupulously gender-neutral terms, the opponents presented infidelity as a universally accepted trigger for homicidal fury, one felt by men and women alike. The appeal to hallowed custom based on thousands of years of ‘human experience’, is a classic case in point, a perfect example of the pervasive disavowal of the profoundly sexed constitution of homicidal passion. For sex in all its culturally loaded meanings is at the heart of to passion/provocation cases. First, there’s the palpably sexed status of the protagonists, the paradigmatically jealous man who kills his allegedly nagging, shagging, taunting female provocateur while in a supposedly ungovernable rage. To take just one example from the cases that had so outraged the reformers, witness the ‘overworked’ solicitor who knifed his wife to death in 2001 front of their four children. On learning that she wanted to leave him for another man, he had, he said, found himself “in a red mist” and had “lost it totally…It’s like they say, you can see a red mist, I was bellowing like a bull”.Footnote 25 He received a seven-year sentence, the prosecutor having accepted his plea to the lesser crime of manslaughter by reason of provocation. The Court of Appeal upheld the sentence, dismissing the Attorney-General’s appeal on the ground of undue leniency. But this ‘red mist’ killer is far from being the only wife-killer to have succumbed to colour-coded homicidal emotions. As centuries of case law indicate, it is always already men who find themselves in red mists or other unfortunate clouding circumstances, the relatively rare woman killer either being found to have killed in cold blood or to be suffering from some form of diminished capacity. Hot-bloodedness does not become her while it is assumed to be his natural or ‘human’ right.

‘Passion/provocation’ or ‘passion murder’ cases as they are sometimes called also focus on sex as in having sex. Male defendants overwhelmed by passion invariably tell a version of the standard tale about their victims’ allegedly provocative sexed-up speech shortly before their annihilation, speech featuring taunts about bad sex (the defendant’s), better sex (the victim’s new man) or exiting sex (she’s leaving for better sex), comments about varying penis size frequently an aggravating factor. Or so they say. It’s his version of events, the only witness (except in the not infrequent case where children are present) being specifically dead by the time he gets to have his say at trial. These execrable defence tales have been thoroughly dissected elsewhere.Footnote 26 What is of compelling interest is the extraordinary resilience of the notion that a man who kills his wife in such circumstances deserves compassion. It wasn’t always so. In the nineteenth century when the English law of murder borrowed the reasonable man standard from the law of negligence, there was a discernible trend to tighten the law of provocation. The provocative conduct had to be such that would lead an objective man to kill. Infidelity-inspired rage was not in itself enough to warrant law’s compassion. In late Victorian England, judges became more determined to secure murder convictions in ‘unfaithful-wife’ murder cases and with the Home Office refusing juries’ recommendations for mercy, more men were hanged for the crime (Wiener 2006). By the early 1900s, the courts were refusing to extend the exculpatory excuse for murder of discovering a spouse in adultery to engaged or cohabiting couples or to men who killed wives on merely hearing a confession. In the 1946 case of Holmes, high point of judicial resistance to expanding the categories of provocation beyond ocular proof, Viscount Simon famously declaring that a ‘confession of adultery, grievous as it is, cannot in itself justify the view that a reasonable man (or woman) would be so provoked’ as to kill. Moreover: “Even if Iago’s insinuations against Desdemona’s virtue had been true, Othello’s crime was murder and nothing else”.Footnote 27 The restrictions Viscount Simon placed on homicidal passion in men did not last long. The 1957 Homicide Act left it to juries to determine whether a reasonable man would do as the defendant in a murder case did, and to take account of “everything done and said”, thereby allowing passion—the un-mastered passion of men aroused by taunting, departing women—to continue on its merry homicidal path for the next 50 years.

While Holmes extended the right to passion to women with its reference to “a reasonable man (or woman)”, this did not reflect an increase in woman defendants. Nor has it not led to any discernible change in the dramatically sexed asymmetrical pattern of infidelity killings, still committed overwhelmingly by men. The reform movement to ban infidelity as an excuse for homicidal fury was sparked by three ‘infidelity’-inspired femicides that had resulted in manslaughter convictions and, as we shall see, the first time the new loss of control defence came before the Court of Appeal was, unsurprisingly, in the latest round of wife-killings, all of which raised some form of ‘infidelity’ on the part of the victim.

Wrapping up at the ‘Mastering Emotions’ Conference

Many more judgments in infidelity homicide cases cried out for exposure but with time running out, I opted to finish my presentation by citing a comment by two leading British criminal law academics that typifies the obfuscation that passes for non-feminist scholarly legal commentary on infidelity homicide. They thought Lord Hoffmann’s assertion in the controversial Smith case that male possessiveness and jealousy were no longer acceptable reason for loss of self-control leading to homicide “odd in various ways”. Lord Hoffmann could not mean that jealousy and possessiveness were “themselves” unacceptable reasons, “but rather the reasons for which jealous and possessive people get angry and lose self-control”, typically “the flirtations of their lovers”:

He means that such reasons should not nowadays be regarded as sufficient reasons for anyone to lose their tempers to the point at which they kill. But were they ever sufficient reasons? Isn’t it the timeless weakness of jealous and possessive people to exaggerate or distort the rational significance of flirtations and the like, or to misinterpret non-flirtatious behaviour as flirtatious and hence give it the wrong rational significance, and hence, to overreact? (Gardner and Macklem 2001, 630)Footnote 28

That timeless weakness in jealous and possessive (and of course un-gendered) ‘people’ and their overreactions seemed like an appropriate place to rest my case against the insidious practice of dishing out compassion to infidelity killers, thereby perpetuating time-honoured victim-blaming misogyny.

Had I time, it would have been apposite to cite another article published in a prestigious English law journal in which the authors professed ignorance of provocation’s gender bias. In footnotes—yes, footnotes—they said they had left aside “the role of gender” because they “know of no cases where this has been an issue” and had “little idea of what is supposed to be at issue” (Holton and Shute 2007, note 64 and note 68). They would not have had to reach far to get a better idea. Scathing criticisms of the age-old concession to passion in the form of homicidal fury unleashed on women by furious men were at hand. Somehow incisive English feminist analyses of English provocation cases dating back to the 1980s (e.g. Allen 1988; Bandalli 1995; Edwards 1996) had passed these scholars by.Footnote 29 But is not just the continuing neglect and marginalisation of feminist criminal law scholarship by mainstream academics—far more marked in the UK than in Australia—that is worrying. One encounters everywhere western society’s pervasive and persistent disavowal of the profoundly sexed constitution of homicidal passion. Moreover, it seems that a great many people are incapable of unthinking male proprietary right 300 years after it was set down in those still sadly apt words: jealousy is the rage of a man and adultery the highest invasion of property. And there I concluded my presentation.Footnote 30

Recalcitrant Audiences Profiled: Post Conference Blues

As far as audience responses go, the one at the ‘Mastering the Emotions’ Conference was fairly typical. I was asked about other kinds of defences to murder and, as always, there was a question about battered women killers. One respondent thought Lord Neill’s claims about French crimes of passion and English stiff upper lips was contradictory. He had a point: English men, stiff upper lips or not, have been indulging in crime de passion for centuries. There is nothing intrinsically French about it.Footnote 31 Another respondent asked about the paper’s evidentiary basis, having apparently missed that it was supported by 300 years of English case law. At least none of the comments descended to the level, as they did at subsequent conferences, of reporting—always without any evidentiary basis—that in some countries, women are more likely than men to kill over ‘infidelity’ or more likely to kill children. Nor did anyone resort to that centrifugal ‘other cultures’ line of inquiry that leads away from the central problem of ‘our’ provocation and loss of control infidelity cases. What about minority ethnic men who kill their wives, I am frequently asked, men from non-Western, putatively more patriarchal societies? All diversionary, I reply. Provocation by infidelity homicide is “our version of honour killings”, as the English reformers put it. It operates as a cultural defence for all male defendants, racially privileged men especially.

Still, the problem of infidelity homicide in Britain was not something anyone wanted to discuss openly. After the session, some women privately expressed dismay at hearing the cases. A week later my paper was singled out on the post-conference blog as “one of the more explicitly political contributions” and as “invigorating feminist-Foucauldian invective against the inequalities maintained by the ‘crime of passion’ defence in law”. Invective? So much for thinking I had presented a tightly constructed evidence-based case against excusing infidelity homicide. But then, is feminist argument against male right ever anything but ‘invective’ (Howe 2002)? Of course, it’s possible I misread the audience reaction. Perhaps it was not so much studied indifference as shock masquerading as disinterest. After all, the blogger who described my paper as ‘invective’ returned a few weeks later to the scene of my crime to hear me revisit the infidelity homicide cases at a law school seminar. There he would have heard law academics typically responding with ‘what-if’ hypothetical scenarios far removed from the facts presented in the provocation by infidelity case law or with queries about far less frequent ‘slow burn’ battered women killer cases. No sooner had I finished reciting case after case of provocation by infidelity than a criminal law professor popped a question about a man provoked to kill a man who rapes his daughter like the one depicted in a recent television drama. Would you deprive him of a defence, he asked? What about the case law, I reply. What about what happens in real life or more to the point, violent death in the cases I was actually discussing? Why default to hypothetical cases when there are so many hundreds of cases of men killing women over ‘infidelity’ to chose from—enough, considered together, to constitute a serious and seemingly intractable social problem? Countering this and other standard diversionary queries, always one about battered women who kill violent men, is debilitating. One is worn down simply by trying to keep discussion on the matter at hand. And then, out of the blue, a conference delegate suggests during post conference drinks that the issues I had raised were too important to be left to academics alone. They needed to find a wider audience. The big question is how—how to bring public attention to the risible body of provocation case law that has for centuries and still today blamed women for their own demise at the hand as of their much put-upon men. It’s a question that has taxed me ever since.

Engaging an Audience: Law as Site of Counter-Discourse

So much for the ‘Mastering the Emotions’ Conference, read here as a case study of audience response to feminist research on ‘red mist’ murder. Finding or creating an audience that will listen to and engage with arguments against the culturally mandated notion that such killers deserve law’s mitigation, unsettling the widespread belief that a crime of passion is a lesser form of homicide than cold-blooded murder because of the victim’s presumed role in provoking her own death, these are the Project’s difficult challenges. It has its work cut out for sadly it is not only violent men who routinely depict their abused partners as having breached “a normative moral order”, thereby warranting a violent response. Such aptly named “warranting practices” (Le Coutier and Oxland 2011, 5) pervade commonsense and legal reasoning about the causes of domestic violence and femicide. The dissociations, justifications and confessions that feature in the self-descriptions of violent men are reinforced by broader social and cultural discourses of “masculine entitlement” and “intersecting discourses of objectified commodification, masculinity and heterosexual love”. The discourse of male possession of women—“I thought I owned her”, I hurt her to help “stake out my territory”—is readily understood (Lau and Stevens 2012, 433). Crucially, this legitimating discourse is duplicated in infidelity femicide cases, thus rendering them ideal sites for discursive struggle, for developing a counter-discourse with a potential to mobilise widespread opposition to its mitigating effects.

A few examples of cases calling out for public scrutiny and debate must suffice here. They are not confined to murder cases, ‘infidelity’ tales having made their way into insanity, diminished responsibility and attempted murder cases. Lady Justice Hallett’s comments in a 2009 grievous bodily harm case are certainly noteworthy. Granting an Attorney General’s appeal against a lenient sentence for a man who, suspecting his wife of infidelity, branded her with an iron, she said this:

…if there is anyone in or outside the criminal justice system who still believes that infidelity can justify or mitigate violence of this kind, they are mistaken.Footnote 32

But are they really mistaken? Not according to the Court of Appeal hearing an appeal in 2010 against the sentence given to a man convicted of grievous bodily harm against a woman who had left him, started another relationship and, he said, sexually taunted him. Lady Justice Hallett’s comments, it said, had to be “closely examined”. While there was “no justification for violence arising from infidelity”, at least in cases of “systematic torture”, that did not mean that infidelity could never mitigate violence. Such an argument would contradict “the reality of human behaviour” and the approach taken by the courts “for generations” to the possible impact that infidelity may have “on men and women who are normally peaceful and calm”.Footnote 33 In the space of a few months the court had reinstated historically mandated legal principles—warranting practices par excellence—thereby ensuring that infidelity still has mitigating force in sentencing, if not as a defence, at least where there is no systematic torture.

Systematic torture was what propelled the Attorney General in June 2011 to appeal on the ground of undue leniency against a man’s sentence for murder of life imprisonment with a minimum specified term of 15 years.Footnote 34 Entering the home of his former partner in the middle of the night, he had killed her in a prolonged beating in front of their three-year-old daughter while shouting: ‘Have you slept with him?’ His sentence was increased to 20 years. The court took the opportunity to comment on the new legislative ban on infidelity as a trigger for loss of control in homicide cases. The court was adamant: provocation, even if not amounting to a defence, may still provide “relevant mitigation to murder”. That not only accords “with common sense”; it reflects the sentencing principle which allows for mitigation when the same material—presumably, stories of women who leave men—arises in attempted murder or grievous bodily harm cases.Footnote 35 While the court found “no provocation of any kind” to mitigate the offence in Williams,Footnote 36 the case law provides a chilling clue as to what forms of ‘sexual infidelity’ would survive reformers’ efforts to reign in the excesses of provocation defences in domestic cases. In a 2007 case in which a man killed his former partner after seeing a photograph of her new boyfriend, the court found that the “actual trigger” to his “readiness to kill” was his discovery of his former partner’s latest relationship. In its view, this could be said to amount to “an element of provocation” that will mitigate sentence.Footnote 37 This notion—that a man’s jealousy-fuelled homicide triggered by such a discovery will receive a discounted sentence—surely needs to be contested in a public forum. So too does the decision in the 2012 case of Clinton, conjoined appeals of three men convicted of murdering wives who wanted to leave them. In a unanimous verdict delivered by the Lord Chief Justice Lord Judge, the court determined that ‘infidelity’—a wife’s departure from a marriage—may properly be taken into consideration not only in sentencing but for the purposes of the partial defence of loss of control when such behaviour was “integral to the facts as a whole”.Footnote 38 Defying the legislated reforms banning sexual infidelity as a trigger for loss of self-control, Lord Judge declared that relationship breakdown is “always fraught with tension and difficulty, with the possibility of misunderstanding and the potential for apparently irrational fury”. Experience “over many generations” has shown that sexual infidelity has the potential to “produce a completely unpredictable and sometimes violent response”, one that may have “nothing to do with any notional ‘rights’ that the one may believe that he or she has over the other, and often stems from a sense of betrayal and heartbreak, and crushed dreams”.Footnote 39

There’s so much for law commentators to observe here—that the court had overlooked Parliament’s clear aim of reducing the defence to “almost nothing” on the ground that “in contemporary Britain, denying the defence in a case such as R v Clinton would cause no injustice” (Baker and Zhao 2012, 273–275); that Lord Judge’s impeccably gender-neutral language is belied by the very case law he sweeps aside and that defendants’ pleas for compassion and manslaughter sentences are firmly founded on possessory right, a very sex-specific right enshrined in the foundational case law.Footnote 40 We might note too just how accurate and prophetic was that early seventeenth century court in conceptualising a wife’s adultery as an invasion of a man’s property, a violation of his possessory right over her. For that profoundly sexed early modern fiction still finds a place in our late modern and putatively egalitarian democracies. As for what might spark public interest, it would be opportune to throw into the mix so-called ‘domestic attempted murder’ cases—more precisely, attempted femicides committed by jealous men, their ‘infidelity’ allegations once again code for a woman’s desire to leave them. Let’s open up to public scrutiny why Court of Appeal judges feel ‘compelled’ to reduce sentence in these cases.

…a distinction has to be drawn between cases in which there is a pre-existing relationship between the victim and the perpetrator of the offence and those in which there is no such relationship. Whether that is a logical distinction is not for us to say, but the authorities clearly show that in cases where such a relationship exists or has existed a somewhat lesser tariff is imposed.Footnote 41

Faced with the received notion that killing a partner or former partner is a lesser form of homicide, the court demurred—whether the tariff imposed should be lessened was not for it to say.

If not them, who? A public engagement project would do well to contest law’s logic in distinguishing domestic from non-domestic, drawing attention to the very different view Court of Appeal expressed in 1980. Husbands’ assaults on wives, it said then, should not be “brushed aside as due to emotional upsets or jealousy”. Indeed, “there is no reason why a man should not be punished in the same way for assaulting his wife as he would be for assaulting any other person”.Footnote 42 To further deflate the notion that men’s emotional upsets warrant assaults on and murder of ‘unfaithful’ wives, we could turn to Alain de Botton’s suggestion in How to Think More About Sex that sexual rejection need not be a sign “that another person has looked into our soul and registered disgust at every aspect of our being”. It need not be interpreted as any kind of “moral judgment”. The reality is far “less shattering”. It’s “a mere accident” (De Botton 2012, 63–64; his emphasis). He traces all the “stupidity” attending adultery back to the eighteenth century when a bourgeois sensibility idealising love-based marriage took hold. Marriage now shifted from “being an institution to being the consecration of a feeling, from being an externally sanctioned rite of passage to an internally motivated response to an emotional state” (125–126; his emphasis). While privileging particular emotional states can be traced back much further in femicide cases, de Botton is surely right to register unchecked adultery-related emotions as truly stupid. Tellingly, he advises both parties to a marriage to recognise the “immense forbearance and generosity” shown in remaining faithful and—in parentheses—(“in refraining from killing each other”) (129–130). That the sexed asymmetry of who kills whom in infidelity-inspired rage can escape such an otherwise astute critic of today’s sexual mores underscores the value of transforming ‘domestic’ criminal cases into discursive sites for radically redefining this enduring harm against women.

Provocation by Infidelity: ‘Our’ Cultural Defence

When twenty-first century English reformers declared that abolishing the provocation defence in cases of ‘infidelity’ was an important law change that would end ‘the culture of excuses’, going so far as to name provocation by infidelity homicide as an honour crime, they drew on a long history of critical commentary on the operation of provocation defences in intimate partner homicides. Across all Anglophone jurisdictions, critics have shown how provocation by infidelity narratives told by criminal barristers on behalf of men who murder wives and women partners provide these killers with a deeply ingrained cultural excuse for murder. More usually, cultural defences are associated with minority ethnic defendants, the most sustained explorations of cultural defences taking place in North American law journals in the 1980s and 1990s, following a spate of controversial cases in which Pacific Asian men invoked cultural traditions to excuse homicidal and sexual violence against ‘their’ women. But as has been noted in incisive feminist critiques of cultural defences, the notion that white American men would react less emotionally, less violently than an Chinese man to the belief his wife was having an affair was “belied by the very encoding of the manslaughter/provocation doctrine in American law, which is explicitly premised upon a violent reaction to this knowledge”. Indeed, adultery is “the paradigm case of provocation” sufficient to mitigate a charge of murder to a voluntary manslaughter conviction (Volpp 1994, 67). So much for the assumption that majority western cultures are inherently less violent toward women and that only immigrant or minority ethnic women suffer “death by culture” (Volpp 2001, 1190). All forms of gender violence emanate from cultural beliefs or traditions. As we have seen, English courts have been very receptive to provocation pleas based on cultural understandings of honour and shame in intimate partner homicides—always already his shame and honour, her dishonourable, shameful provocative conduct. But it is immensely difficult to keep ‘our’ cultural defences in the frame, when ‘honour’ talk is almost immediately relegated to minority ethnic groups. Such is the centrifugal force of ‘culture’ in criminal trials—it always turns into something ‘they’ have no matter how frequent the insistence that ‘we’ all have culture.Footnote 43

Consider, for example, a recent Australian media item meshing murder with culture. Looking back at “the crimes that shocked us in 2012”, a tabloid newspaper report led with the murders of three young women in Melbourne. The text is dominated by a photograph of the 30,000 strong-crowd that took to the streets in protests against the rape and murder of a young woman after she left an inner suburban bar where she had been having after-work drinks with colleagues. She was abducted, “plucked off the street by a stranger” on her way home to the flat she shared with her husband. Next to that are two smaller photographs—one of a woman killed a few weeks later by a male acquaintance, the other of mourners at the funeral of the third young woman, murdered by her husband 12 days after the abduction murder and just 10 days after she took out an intervention order that was “meant to save her life”. Police had held grave concerns for this domestic murder victim subjected as she had been to a prolonged period of false imprisonment, rapes, beatings and starvation. Her last appearance in court was for an extension of an intervention order outlining several breaches. Her husband, who killed himself after stabbing her to death and setting fire to her body, “reportedly had many extramarital affairs. But his wife’s affair was seen as the ultimate betrayal” (Butler et al. 2012).

Such contrasting media representations of femicide highlight the magnitude of the problem the Project needs to address. While the rape and murder of the woman leaving the bar was met with a massive public outpouring of grief, featuring candle-lit vigils, the street demonstration, social media hate pages and condemnations of the ‘maggot’ who killed her, there was limited media coverage and no public outcry over the suffering endured by the ‘domestic’ victim, Sargun Ragi. But the fact that she and her killer were Punjabi immigrants in an arranged marriage did prompt one tabloid journalist to proclaim it past time that Indian men spoke against arranged marriages that are based on a “deeply entrenched” and “deadly kind of sexism” that manifests itself in honour killings. Ragi, he said, had been “killed by a wicked belief, imported to Australia by some Indians, that wives are chattels and, in any failed marriage, they become unwanted possessions to be murderously disposed of”. As I have been at pains to point out, the record of hundreds of years of case law shows that the ‘wicked belief’ that men have possessory rights over women was imported to Australia from England long before Ragi was murdered by her husband in Melbourne in 2012.Footnote 44

Conclusions

For all the fuss over the reform excluding infidelity as a trigger for loss of control, they need not have worried so. The Court of Appeal led by the Lord Chief Justice grasped the first opportunity to reclaim infidelity-inspired rage as excusatory at law. Moreover, as recent post-reform Australian cases show, ‘infidelity’ can find its way into defence narratives even in an ‘abolitionist’ state such as Victoria, Australia. While the defence of provocation was abolished in Victoria in 2005, the 2009 Sherna case shows that ‘infidelity’ can still be raised in a defence to murder.Footnote 45 The defendant killed his long-term partner because she had annoyed him by not letting him go the toilet at home and had also upset his dog. He added that she had had affairs years earlier. He strangled her with a dressing gown cord before visiting a brothel. He pleaded no intent to kill and was convicted of manslaughter. That the jury acquitted him of murder underlines at once why this Project is so vital and what it is up against—murdered women alleged to have been ‘unfaithful’ (recently or in the distant past) and who then add to man’s misery by, say, upsetting a dog, can still be said to have provoked their own demise, even in a jurisdiction where provocation is no longer a defence. Such is the intransigence of this historically mandated and still powerfully persuasive she-asked-for-it cultural script.

Contesting the continuing tolerance of excuses for femicide in England (or Australia) remains unfinished feminist business that is made that much harder in the wake of media-saturated stories about high profile cases in other places, notably India and now South Africa, both with far more dismal records of lethal violence against women.Footnote 46 Certainly, much needs to be done to break down the view, still rife in ‘our’ culture, that a ‘domestic’ is a less serious form of violence and ‘infidelity’-inspired killing a lesser form of homicide. Nevertheless, finding new ways of challenging the ancient right to passion embodied in provocation by infidelity defences; addressing the normative questions raised by the conceit that infidelity is sufficiently grave provocation to provide defendants with a warranted excuse for retaliatory violence; in short, querying the justice dispensed in passion murder cases in a public forum—these are the Project’s goals. Converting these cases into sites of counter-discourse in a public forum seems like a good place to start getting people thinking about the supposedly universal right to ‘passion’ that translates as a man losing self-control and erupting in homicidal rage over ‘infidelity’. Asking them to consider whether such passionate rage should trump a woman’s right to leave him in a modern western democracy? Daring to hope that the miscarriages of justice that routinely befall victims of infidelity-inspired rage become universally acknowledged? Rallying public support for reconceptualising so-called crimes of ‘passion’ as the moral equivalent of cold-blooded killing? It’s an ambitious project to be sure so best to begin modestly in such an emotionally wrought field.