Can murder ever be justified? Victims of abuse who have killed their partners

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In March 2016, Emma-Jayne Magson stabbed her boyfriend, James, with a kitchen knife inside their home. They ended up on the street outside, where Emma sat on top of him as he was dying.  James’s brother walked past, and Emma dismissed his concerns, saying that James was just drunk. She then made a 999 call where she said that her boyfriend was ‘making weird noises’.  When the call handler told her the ambulance might take a while she told them not to worry.  She was jailed for life in November 2018.

But now, Justice for Women has started a campaign to overturn her conviction, and that of others like her.  They believe that Emma was fighting back against her abusive partner, something which was not brought up at all in her trial.  

Historically, the way that women have been treated by the legal system in cases such as this has been unfair.  Consider the case of Kiranjit Ahluwalia, who killed her abusive husband in 1989 by setting fire to him as he slept.  

He had raped, attacked and controlled Kiranjit for the ten years of their marriage.  Feeling trapped because of his control and not wanting to leave her children, Kiranjit saw killing him as the only option.  But the law found her guilty of murder, because a few hours had elapsed between his last attack on her and Kiranjit’s action.   

There was a misogynistic lens to Kiranjit’s trial, where the prosecution claimed that the violence she had suffered was ‘not serious’ and relied heavily on the fact that Kiranjit had last been attacked a few hours prior to attacking her husband.  This was a heavily biased view, which saw violence only in the instances of the man’s volatile outbursts, rather than realising it was a condition under which Kiranjit perpetually lived.  

On the other hand, when in 1991 Joseph McGrail was tried for kicking his partner to death, he was given a two year suspended sentence and allowed to walk free.  In his defence he argued that his wife was an alcoholic and swore at him.  In the judge’s opinion, she was the sort of woman who ‘would have tried the patience of a saint’.  

These two cases suggest that when men kill women, relatively small issues are seen as justifiable provocation.  But when it is the other way round, even blatant and life threatening abuse from the man towards the woman is not seen as a good enough defence.

Indeed the ‘loss of control’ defence, typically used in cases where men claim to have killed their wives upon discovering alleged infidelities, has not often worked for women who have killed their partners after years of sustained abuse.  

But now things are changing, slowly but surely.  In 2015, coercive control became a criminal offence, and the legal system is recognising the nuances behind abuse and how it can affect women.  There is a much firmer acknowledgement that abuse is a mitigating circumstance in murder cases, even if the actual killing took place in isolation from a singular episode of violence.  

Which is why I want to turn again to the case of Emma-Jayne Magson and another high-profile killing that forms part of the Justice for Women campaign.  Sally Challen killed her husband, Richard, in 2010, before coercive control was considered a crime.  Now, Justice for Women is also trying to overturn her conviction for murder on the basis that she suffered years of controlling abuse from him.

There is no doubt about it.  In both cases, the victim of murder was also an abuser.  There was CCTV footage showing James pushing Emma to the ground by the neck on the night of his murder, and marks around her neck were noticed while she was in police custody.  In Sally Challen’s case, her son has come forward in her defence, commenting on the way his father would put Sally down, restrict her use of the car and constantly make her question her sanity. 

But although these women were undoubtedly victims of abuse, what if their victimhood was not the motivation for their actions? This is speculation, a train of thought which is as challenging as it is meandering, and I do not pose a concrete argument here. I simply wish to suggest that totally and proportionately justifying these murders through the legal system may be more complicated than meets the eye.

For example, in a recorded confession used as evidence in Sally’s trial, she said ‘If I can’t have him…no-one can’, referring to her husband’s numerous affairs.

If a man said that about a murdered female partner who was having many affairs, it would seem likely that the reason for his action was his jealousy and, crucially, a sense of ownership of his wife’s person.  Suddenly this sounds all wrong.  

I’m not saying that the years of abuse Sally Challen suffered are in any way mitigated by her one statement in court.  She continues to express her love for her husband today – a sign that his manipulative influence still holds even after his death.  But in a legal sense, the only explanation Sally offered in her trial was the fear of losing him to another woman.  This can make the killing seem like a disproportionate reaction to jealousy, a type of murder that has often been justified in courts when men kill adulterous wives.  

But I do not want to live in a world where the ‘provocation’ of an adulterous spouse is accepted as a reason for loss of control and therefore murder.  But I equally do not want to live in a world where sustained abuse is not understood to be a condition that can suddenly trigger an overwhelming need to be rid of that abusive partner.  

And unfortunately, for Sally Challen, Richard’s infidelity was actually part of his abusive behaviour.  The way he made her question her sanity when she would ask him about it, the way he refused to engage with her when she wanted him to be honest about the other women he was seeing, the way he would make her feel inadequate and not good enough for him – these are all things that made the extra-marital affairs part of a system of manipulative behaviour.  

But how is the law supposed to assess this? Similarly, in the case of Emma-Jayne Magson, where she waited for her boyfriend to die before seeking help, it is totally understandable that she might see his death as the only way to escape him.  But at the same time, her refusal of James’s brother’s help as he lay dying beneath her can cast her in the light of a determined murderer – which I do not really think she was.  

This is such a difficult question to address.  Men have often wrongly been allowed to walk free on grounds of provocation after killing wives who have, at the most, exercised bodily autonomy.  In these cases, murder is a disproportionate and never justifiable response.  

But we do not want to risk going too far the other way, and see every female killing of a partner as understandable and justifiable.  I believe that the killings of Emma and Sally’s partners are understandable, even if more difficult to legally justify, but not all such killings will be.  But murder is only understandable and open to legal justification when a person genuinely feels as though they have no other option.  It is going to take a very sophisticated legal perspective to accurately determine when this is the case.  

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