THE Justice Secretary has said there is a “compelling” case for ending the partial defence in Scots law for killing a lover in a jealous rage.
Keith Brown told MSPs that many people would support an end to “provocation by sexual infidelity” being used to reduce a murder charge to culpable homicide.
The Scottish Law Commission last week published a discussion paper on “the mental element in homicide”, asking if principles dating back hundreds of years are “fit for purpose in today’s society”.
The consultation paper includes the partial defence of provocation in Scots law, which can see murder charges reduced to culpable homicide if a person is provoked by physical violence (effectively self-defence) or sexual infidelity.
For such a plea of provocation to succeed, an accused must show, “in the exceptional case of sexual infidelity, a reaction which might have been expected in an ordinary person in the circumstances”.
The Scottish Law Commission, which is taking public views on the subject until late August, said lawyers had criticised the law as “an unacceptable and archaic approach arising from out-dated concepts of male honour and sexual possession”.
It said it was minded to recommend abolition to ministers, but asked if others agreed.
Labour MSP Pauline McNeill asked Mr Brown if he thought it was time to remove the sexual infidelity partial defence to show Scots law “seeks to keep women safe”.
Mr Brown said he agreed “in general principle”.
SNP MP Emma Roddick complained that “a person who kills in a jealous rage brought on by the belief that they have been cheated on can escape a murder conviction under the law as it stands”.
She asked Mr Brown if he believed that had “no place within modern criminal Scots law”.
He replied: “It’s a very important issue. I do hope that members will understand that the Law Commission will prepare this final report with recommendations and deliver that to ministers, and I don’t want to pre-empt that consideration when the final report is provided.
“But I do however think there is a compelling case for serious consideration to be given in this specific area of reform.
“I look forward to seeing what people have to say in response to the discussion paper.
“I think that it’s very likely that many people will hold the views expressed by Emma Roddick before the Commission make their recommendations for reform.”
The Commission is also asking if Scots law should state expressly that ‘rough sex’ is not a valid defence to homicide, in light of the law being changed south of the border to make it clear that alleged “sex games gone wrong” can still be crimes.
Mr Brown said there was no defence in Scots law of a person agreeing to be harmed, although he acknowledge some people had tried to use the idea to reduce a murder charge to culpable homicide.
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