October, 2020 -

Timothy Brehmer: from coercive control to loss of control

This week Timothy Brehmer was acquitted of the murder of Claire Parry. Brehmer, a former police officer, had not denied that his actions had killed her. Instead, he said that he had not intended to kill her. That he had intended only to shove her out of the car, and yet somehow, she had ended up dead.

Women across the UK followed the case as Brehmer’s story changed. She had been breathing when he left the car, he said. He said she had tried to stab him. Or maybe not, maybe he had tried to stab himself. Her death must have been positional asphyxiation. Whatever, he hadn’t intended to kill or seriously harm her. Media reporting revealed descriptions of controlling coercive behaviour, and few had sympathy for the pity parade that constituted his reported evidence.

The verdict, acquitting him of murder, was met with outrage from feminists. How could we reach a stage where a man strangles a woman for at least 10-30 seconds with enough force to break three bones in her neck, his evidence is a kaleidoscope of unlikelihood, and yet somehow he is not guilty of her murder?

The answer lies in the “loss of control” defence. Importantly, we will never know why it is that the jury came to the verdict which they did. They had two options to reach their conclusion. One was that Brehmer’s evidence was true – or at least, they had some doubt that it was lies – and that he hadn’t really intended to seriously hurt or kill her when he strangled her. The second was that he had intended to seriously hurt or kill her, but that his actions arose from a “loss of control.”

Although we will not find out which of the two were the basis for the jury’s decision, we do know that the judge sentenced on the basis of loss of control. Once the verdict is in, it is for the judge to decide which is more likely, and to sentence on that basis.

The Bournemouth Echo, reporting the sentencing hearing, records that the judge said

“This is a case where I should sentence you [on the basis] that you lost your self control following the message that was sent to your wife, rather than you unintentionally killing Mrs Parry.

“I am sure that you did deliberately take Mrs Parry by the neck.”

He went on to make findings that the “loss of control” trigger was “only just met” and that Brehmer’s actions bore high culpability within the sentencing guidelines.

So what is “loss of control,” and how does it fit within the legal framework?

Before 2010, the defence was one of “provocation.” It was up to the jury to decide whether a person had been provoked sufficiently to lose their control and thereby to benefit from the reduced sentence for manslaughter, not being guilty of murder. It produced some absolutely shocking results: Thomas Corlett, who got three years for killing his wife after she ‘provoked’ him by moving the mustard pot to the wrong side of the table, for example. It was referred to by campaign stalwarts Justice for Women as the “nagging and shagging” defence, because it enabled men to argue that their wife being unfaithful or arguing had reasonably provoked them to kill her. After some significant campaigning, law reform was finally proposed in 2008, slowly made its way into the Coroners and Justice Act 2009, which was enacted in 2010. The relevant provision is this:

What is this “qualifying trigger?” Nagging and shagging is explicitly excluded, or so the drafters hoped:

In plainer terms, the questions are these: under s.54, was there a loss of control? Was there a qualifying trigger? And might any other comparator in similar circumstances have behaved the same way? If so, s.55 tells us what the qualifying triggers are – here, did the victim say something or do something ‘extremely grave’ and causing the defendant to have a ‘justifiable sense of being seriously wronged?’

“The fact that a thing done or said constituted sexual infidelity is to be disregarded” was intended to ensure that men who felt ‘provoked’ by their partner’s cheating (or alleged cheating) did not get away with murder.

We should recall, a decade later, that there was considerable opposition to this from some quarters. Feminists were accused of “feminising the law.” Dominic Grieve objected that “the Government have decided that thousands of years of human history and experience should be jettisoned for a piece of political correctness and proclamation: a declaratory statement that sexual infidelity can never justify violent behaviour.” Others pointed out that since men do kill in violent rage, it would be improper to prevent a jury from considering infidelity.

There were also objections that the clause was poorly drafted. These, unfortunately, were rather better founded. What constitutes ‘sexual infidelity,’ how grave is extremely grave and how serious is a serious wrong? Most importantly, what happens if sexual infidelity is just part of a wider context of loss of control? These were the questions considered in R v Clinton, a case concerning three men, who in the span of three weeks had each killed their partner. The Lord Chief Justice, giving judgment, said that “The starting point is that it has been recognised for centuries that sexual infidelity may produce a loss of control in men, and, more recently in women as well as men who are confronted with sexual infidelity.”

The Court went on to take the view that while the new law meant that infidelity alone could not constitute a qualifying trigger, infidelity could still be considered if there was a wider context: “In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.”

In Brehmer’s case, the trigger was not sexual infidelity, but the fear of her revealing the affair they were having, and so there was no prohibition on this being considered a ‘qualifying trigger.’

One question raised by all of this is where coercive control, not considered in 2008, would fit in. How should the law approach men who kill not because they lose control of themselves, but because they are losing control of their partner? Can or should statute try to draw the distinction?

It leads us to a situation where the solution is, perhaps, not available in law. The 2009 changes sought to block one such avenue, but were rather defeated in Clinton. What the defence of “loss of control” really needs is social change whereby the question as to whether a man in the same circumstances, with a “normal degree of tolerance and self-restraint” might act the same way, is met with a jury which says “absolutely not.”

Transgender Law In Practice?

Legal Feminist peruses the Inner Temple Yearbook 2020 and raises concerns about whether the teaching for a BPTC student residential weekend on the conflict between women’s and transgender people’s rights was sufficiently rigorous.

If Allan Briddock’s published account, is an accurate summary, then students attending this course in early 2020 received an account of the law and of the arguments which Legal Feminist considers inadequate and misconceived. Selected statements are quoted below in italics and we address each of these in turn.

Perjury

“It is not proposed that self-ID would mean a person is able to simply say ‘I am a woman/man’, and then be automatically legally recognised in all contexts as that gender. It is instead envisaged that the person would have to make a form of statutory declaration in order to be legally recognised as a woman or man, and making a false declaration would be a criminal offence.”

Under section 5 of the Perjury Act 1911, making a false statement in a statutory declaration is punishable by a fine or up to two years imprisonment. Briddock appears to have failed to address (in the context of self-identification) how a prosecution may be brought. Proponents of self-identification remind us that gender is a matter for each individual to interpret in a way that feels meaningful to them and should not be interpreted by reference to outdated stereotypes or biological sex. With no objective way of telling who is a man or a woman, how could a statement that a person intends to live as a man or woman ever be proven false? We note that there have been no prosecutions for false statements made under the current Gender Recognition Act 2004, despite, for example, several transmen carrying out what many people would see as the inherently female act of becoming pregnant and giving birth.

Inverting Victim/ Perpetrator roles

“Transgender women have been portrayed by detractors of self-ID as predators from whom cisgender women need to be protected – a chilling echo of the way that gay men were portrayed as a danger to children and young people in not so distant times. The argument inverts the victim/ perpetrator distinction against a tiny vulnerable minority.”

The vast majority of perpetrators of harm against transgender people are men, not women. Transgender people do need protection from harm perpetrated by men, and from harms they experience from living in a patriarchal society, but the answer to this does not lie in casting women as the aggressors. The analysis that the victim/perpetrator distinction has been inverted would seem to suggest that women are posited as the perpetrators of harm against transwomen, a suggestion which we consider an unsustainable position.

Risk of Harm

“When the argument against self-ID is put in this way – ‘this change in law will allow men to access women-only spaces – then any right-minded person would be concerned. There is no doubt whatsoever that women-only spaces should be protected. However, transgender women are not a threat to them.”

This invokes the ‘no true Scotsman’ fallacy. Self-identified transwomen have caused harm to women in women-only spaces (see in England Karen White, in Ireland Barbie Kardashian, in Scotland Katie Dolatowski and in Canada Christopher Hambrook, all self-identified transwomen who have harmed or threatened women in women only spaces). Gender critical feminists point out that self-identification makes it impossible to distinguish whether these self-identified transwomen are the men about whom any “right-minded person” would have concerns or whether they are transwomen who do in fact pose a threat.

Rights of Access to Single Sex Spaces

“Transgender women have a long history of accessing women-only spaces with little or no evidence that they have caused harm. Indeed, transgender women, with or without a Gender Recognition Certificate, have been legally able to access women-only spaces since the Equality Act 2010.”

The Equality Act 2010 does not give legal rights to any individual to access a single sex space. The Act instead regulates the rights of organisations and service providers to control access to single-sex spaces. It is correct that there is no prohibition in law on the individual transgender person from accessing (or attempting to access) the single-sex space of their choice. Briddock overlooks that the Equality Act states that, in specific circumstances, it is not unlawful for that access to be refused. It is on this basis that before the self-identification movement took off, transgender people have quietly and without issue been able to use single-sex spaces. They were not breaking any laws or behaving illegally and they were able to use those spaces unless and until objection was raised.

Sex Based Exceptions

“Although sex-based exceptions exist, and can be used in exceptional cases to exclude transgender women from women-only spaces, the very existence of these exceptions serves to emphasise that the default position is a right for transgender women to be in these spaces.”

‘Exceptionality’ in law is a term of art, albeit one about which there has been much litigation as to meaning. Part 7 of Schedule 3 to the Equality Act 2010 sets out various ‘Exceptions’ to the prohibition in part 29 of the Act against discrimination in the provision of services. Sub-section 27 of Schedule 3 allows for the provision of single-sex services. It states that the service may be provided to “persons of one sex if … the limited provision is a proportionate means of achieving a legitimate aim.” Sub-section 28 provides that even in the case of single-sex services, a transgender person may lawfully be discriminated against if it is “a proportionate means of achieving a legitimate aim”. The provisions of ‘exceptions’ from the general prohibition on discrimination for reason of sex or of gender reassignment does not import any test of ‘exceptionality’ in the sense of rarity or unusual deviation from a default. In this sense, an exception could be invoked 99% of the time. The legal test of when these exceptions may be invoked is clear from their text: proportionality in pursuit of a legitimate aim.

It is imprecise to view the Equality Act as creating a ‘default’ position against all forms of discrimination in all circumstances. The Equality Act only renders specific forms of discrimination unlawful. Whilst parts 1 to 16 set out overarching prohibitions against discrimination, the exceptions listed in the schedules are not a minor afterthought but are an integral part of an Act that make express the fact that not all forms of discrimination are unlawful. In determining proportionality, the rationale behind their existence is given no less weight than that afforded to the general prohibitions.

A Class Analysis

“Most people would agree that excluding an entire class of persons due to a perceived risk of harm to another class of persons should be based on evidence and not just fear. The fact is that fear of transgender women is not based on evidence. On the contrary, the evidence that does exist points in the other direction.”

Under the EA2010 the relevant protected characteristic that comes into play when transwomen who do not have a Gender Recognition Certificate are excluded from women-only spaces is that of sex, not of gender reassignment. Self-identified transwomen are excluded from those spaces because their sex (as defined by s 212(1) EA2010) is male, not because they are transgender. There is ample evidence that men (as a class) do pose an unacceptable risk of harm to women (as a class) in many situations. Transwomen without a GRC fall into the same class as all other men.

It is assumed that this paragraph, and the one above (“Transgender women … vulnerable minority.”) mean to point to the risk of harm that transwomen face at the hands of men rather than, as they initially appear to suggest, women being the aggressors. Certain unfortunate wording, coupled with a failure to properly identify the relevant protected characteristics in play has led to an obscuring of an issue at the centre of this debate: how a class distinction can be drawn between men and self-identified transwomen when there is no objective frame of reference by which to do so.

Hyperbole

“Baroness Nicholson is a Conservative peer who had been campaigning to exclude transgender persons from single-sex spaces, including hospital wards and changing rooms. She recently said her concern is “about the risk that a small minority of people with malign intentions may seek to use the trans community as a cover to harm and prey on women and children”. This argument suggests that an already vulnerable class of persons, transgender men and women, should be excluded from the Equality Act protections and in reality everyday public life because of the risk that persons not in that class – that is, cisgender men – may have malign intentions.”

This hyperbolic statement has no foundation in law. Firstly, transgender people would continue to be able to access facilities and services that are appropriate to their sex, or that are indeed focused on the specific needs of the transgender community. Secondly, retaining the protections that facilitate the provision of single-sex spaces will not remove the specific protections against discrimination that transgender people enjoy for reason of undergoing gender reassignment or on account of their sex. Indeed, transgender people would continue to enjoy full protection from discrimination etc on the basis of their age, disability, marriage and civil partnership, race, religion or belief or sexual orientation.

Failure to properly consider Equality Act Rights

“the vast majority of transgender women do not have a Gender Recognition Certificate but nevertheless have been accessing women-only spaces from time immemorial and have a legal right to do so under the Equality Act.”

The assertion that the Equality Act creates a right for transwomen to access women-only spaces is repeated, but again without foundation or explanation of how the Equality Act could in fact be interpreted in this way. Likewise, the claim that the Equality Act gives transwomen without a GRC the right to access women-only spaces is unexamined. The Equality Act is for the individual, a shield and not a sword. It offers individuals protection against unlawful discrimination by prohibiting certain types of behaviours and processes by service providers, employers, schools etc. It does so by obliging those bodies to refrain from certain behaviour rather than by creating positive obligations.

The concept of, and distinction between positive and negative obligations in law is a complex but important one. For example, under article 3 ECHR (when a person is in the jurisdiction of the UK) there are positive and negative obligations upon the State to prevent a breach of that person’s article 3 rights, i.e. that the state must take positive steps to prevent someone from suffering inhuman treatment and must also refrain from actions that will cause that harm. In the context of the Equality Act, it is only the sections that require reasonable adjustments to be made to mitigate against disadvantages suffered by people with the protected characteristic of disability where a positive obligation is created. The negative obligation to refrain from unlawfully discriminatory acts upon which the rest of the act is based does not create a right for any individual to access a single sex space, but instead prescribes the circumstances in which such spaces may be created and details the criteria by which access to those spaces may be limited.

Predatory Men

“It is irrational to assume that a man who is prepared to pretend to be a transwoman to sexually assault a person in, say, a public toilet, would simply not commit that crime because the law prevents him from entering that toilet. Allowing an easier form of gender recognition will not change that or create more risk of harm.”

There is no law which prevents any predatory man from being able to access a women’s public toilet. The Equality Act does permit service providers to designate certain spaces or services as single sex and to deny access to persons who are not of that sex. It allows those service providers to police the boundaries around women’s spaces and for women to do the same: to act on their feelings of unease if they encounter a man in a woman-only space, rather than being obliged to suppress their concerns. It is the compulsion on women to lower their guard and to accept members of the male oppressor class into spaces previously reserved for women that will lead to increased harm, not whether predatory men will or will not act within the law.

We invited Mr Briddock to comment on whether his summary accurately reflects the teaching at the training weekend, and offered him a chance to justify his interpretation of the law. He declined to comment.

“I’d like to have an argument, please”

Various of the great and the good (Keir Starmer for one, and David Isaac for another) have expressed dismay over the level of heat and unpleasantness in the ongoing debate over trans rights and how – or whether – they conflict with women’s rights.

I share that dismay. It does seem to be difficult to get a civilised conversation going on this subject.

It’s a subject I find interesting. I have read a lot about it, discussed it with friends and colleagues, thought a lot about it. My views have evolved over the last few years. My position – as anyone who has read anything I’ve written on this blog will know – is now unmistakably “gender critical.”

I have plenty of people to talk to about all this: the rest of the Legal Feminist team are a wonderful bunch – clever, funny, well-informed, brave and diverse, and it’s been a joy to get to know them and count them friends. And they have put me in touch with other people it’s been a privilege to interact with. The gender critical bubble is a lovely friendly supportive thing.

But something’s missing… damn it, I’m a lawyer. I do like a good argument! But also, I genuinely want to understand the opposing position.

I have been trying on and off over the last few years to persuade various lawyers – friends and/or colleagues – who are on the other side of this debate to engage with me on it. To tell me why I’m wrong, so that I know what I’m up against; so that their ideas and mine can be tested by robust friendly argument.

It’s not usually difficult to persuade lawyers into an argument. Indeed, the problem is usually the opposite one (try getting a bunch of barristers to agree on a new Chambers logo, for instance, and you’ll see what I mean). But on this issue, all the lawyers I know are strangely reticent. I’ve emailed friends and said “I really wish you’d engage with me on this – can’t you tell my why I’m wrong?” I’ve tried friendly approaches to colleagues, and lawyers on the other side of this debate I vaguely know, and said “How about a private email debate, in strict confidence until and unless we both agree to publish?” No takers.

So I’m putting it out here instead. Will a practising or academic lawyer on the other side of the debate agree to discuss this with me? What I’m proposing is an email exchange, initially in private and with no particular urgency – because what I want to achieve is so far as possible a friendly relaxed dialogue. But I propose, too, that we should agree at the outset that at the end of an agreed period – say a year? – either of us should be free to publish the exchange.

Obviously we each take a risk in that. It’s possible that our respective bubbles will each be sure that we have “won” the debate, and both of us will emerge from it claiming (or even if we are too polite to claim, anyway sensing) “victory.”

But it’s also possible that my arguments or yours are reduced to rubble. I’m willing to take that risk. Are you?

It’s possible that my arguments or yours will be reduced to rubble, in public. I’m willing to take that risk. Are you?

If you’re willing to play, please identify yourself (real name please, and a link to a professional profile) in a comment. If there’s more than one offer, I suppose I’ll have to work out how to make a choice, but at any rate I promise I won’t aim to choose the least formidable foe. I won’t try to set detailed ground rules now, because I think those are better negotiated 1:1. But I will suggest that we should each be willing to attempt direct answers to each other’s questions.

Friday Round Up

A solicitor has been fined £17,500 by the Solicitors Disciplinary Tribunal after being convicted of sexual assault.

Concerns continue to mount about the impact on victims of lengthy delays to trials. These problems, already in existence last year, have been exacerbated by Covid. “Justice delayed is justice denied.”

Naz Shah MP has received an apology and compensation after the Leave.EU group falsely accused her of being a grooming gang apologist. Leave.EU have accepted that the allegation was libellous and that she is a ‘vociferous campaigner for victims of grooming gangs.’

In global news, the UN Secretary General has called for an investigation after more than 50 women have come forward with reports of sexual exploitation and abuse by workers at the WHO and leading NGOs.

Spearmint Rhino have closed their doors in Sheffield, bringing to an end the third judicial review taken on Public Sector Equality Duty grounds against Sheffield. This was not the only litigation surrounding the Rhino: the club, arguably using dancers as a shield, had attempted to prevent the organisation Not Buying It from disclosing evidence of their licence breaches despite NBI’s undertaking never to disclose the identities of the dancers. Spearmint Rhino withdrew the claim and agreed to pay NBI’s costs soon before closing down. Not Buying It are calling on Sheffield to ensure that the women who worked there are supported to find alternative work and mental health support if necessary, since as self employed workers they would not have been eligible for furlough. You can see their campaign here.

In news on sex and gender:

This week Keira Bell’s case has been heard at the High Court. Keira is challenging the Tavistock for their issuing of hormone blockers to children aged 10-16, arguing that children do not fully understand the implications of that decision. The Tavistock argues that they do, and that the whole principle of Gillick competence stands at risk. Judgment is expected at a later date.

Ann Sinnott is issuing judicial review proceedings against EHRC and GEO in relation to their guidance on the single sex exceptions contained in Schedule 3 to the Equality Act 2010. These exceptions permit single sex or separate sex provision of services, and also allow a service provider to discriminate lawfully on the basis of gender reassignment. The EHRC and GEO’s guidance stated that it would be unlawful to discriminate on this basis against someone who had a GRC, whereas we now know that it is lawful to have a single sex provision which is restricted to one sex, irrespective of someone’s GRC status. The uncertainty over who may and may not access single sex services has been at the heart of much of the debate triggered by Stonewall’s move to abolish them altogether contained in its GRA submission. Whatever the outcome, this action should provide some much needed clarity. You can see her crowdfunder here.

The Law Society has issued a template for firms wanting to support employees who are transitioning or otherwise changing their gender expression. This describes biological sex as “stereotyped categories,” indicates that all employees should use facilities of their choice regardless of the stage of their intended transition, and that pronouns should not just be chosen at will but dispensed with altogether. It suggests phrases such as “Sam is going to get Sam’s coat” for the pronoun-free, and warns that failure to accept a gender identity amounts to transphobia. What a traditional client base would make of it remains to be seen; Legal Feminist wonders whether this will have a genuinely adverse effect on recruitment of those who are gender non-conforming for fear that they will insist on speaking like this to clients.

Stella Creasey MP and Stonewall hosted a workshop on the upcoming consultation on misogyny as a hate crime, at which attendees were invited to ask questions. WPUK founder Kiri Tunks asked “Given the Single Sex Exemptions in the Equality Act are in place to address the misogyny and sexism faced by women and girls, can Stonewall explain why they are lobbying to have them removed?” Readers might think that this is relevant to the subject matter of the workshop: why is Stonewall campaigning to remove the existing redress to misogyny in law? Kiri was removed from the meeting for asking the question, and Stella Creasy MP rather huffily replied on Twitter to the ensuing criticism that a workshop is not the appropriate forum for discussion. If a workshop on misogyny and law is not the appropriate forum for a discussion on misogyny and law, what is?

In news from Ireland, where self-ID was brought into law, a teenager has been remanded into a women’s prison after making threats to kill. The report indicates that no bail application was made and the defendant was reportedly “anxious” to be admitted to a women’s facility. Court reports link this defendant to an extremely disturbed, violent and unpredictable young person who does not have a dysphoria diagnosis (and would therefore not be eligible for a GRC in the UK, or to consequent placement in a women’s prison) and who has declared persistent intent to do serious harm targeted expressly at women. The individual had previously attacked a social worker while she was driving, ripping her eyelid, and reportedly expressed remorse only that the social worker had survived the attack. The Limerick Leader reported the case and the objections of the radical feminist organisation Radicailín. The Limerick Feminist Network were quick to condemn… the reporting:

Link to the text of the Limerick Feminist Network's objections to the reporting.

It is astonishing that their objection was only to the “deadnaming” of the defendant, not to the placement of an individual hellbent on harm to women being placed in an already overcrowded women’s prison.

Sex and the Law Society: Open Letter to the Simon Davis, President of the Law Society

Dear Simon Davis

We write regarding the Transition and Change to Gender Expression Template published by the Law Society in August 2020 and particularly about the suggestion that gender reassignment means that individuals should “use the facilities that make you feel most comfortable”.

While the status of the Template is unclear, members and firms would expect it to be legally accurate and to recommend best practice. Our concern is that neither expectation is fulfilled for the following reasons:

1. It misunderstands the protected characteristic of sex. The Equality Act 2010 definition makes no reference to stereotypes and simply refers to the condition of being either male or female. Referencing stereotypes as a definition for sex is inaccurate and will tend to reinforce sex discrimination.

2. No consideration of women’s rights or interests has been undertaken and this is particularly important, as women are not well represented at partner level in law firms. Many women, whether for reasons of privacy, dignity, safety or for religious reasons or previous trauma from male violence, are not comfortable using mixed sex facilities. It is surprising therefore that the impact on women has not been considered and no consultation undertaken with the broader membership.

3. The Template encourages law firms to breach the Equality Act 2010. The Act contains single-sex exceptions enabling employers and service providers to provide single-sex facilities where objectively justified. Women are entitled to expect their employer to provide single sex facilities (and to exclude men and transwomen regardless of their legal sex). We consider that failure to invoke the exceptions is likely to be indirectly discriminatory, placing women at a particular disadvantage without justification.

4. The Law Society endorsement of this Template encourages employers to breach the requirements of Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992, that employers provide single sex toilet and changing facilities save in circumstances where there are separate lockable rooms (meaning separate lockable rooms not merely separately cubicles). Breach of those regulations can be prosecuted as a criminal offence.

We do not single out the Law Society for criticism, as other organisations such as ACAS and government bodies have also produced incorrect guidance. It seems that that policy has been “copied and pasted” by non-lawyers who are not abreast of the relevant up-to-date statute and case-law. However, we would have expected a better standard of guidance to come from the Law Society.

We request the withdrawal of the Template as a matter of urgency, with a revised Template being issued only after advice has been obtained from a specialist discrimination lawyer. Members of Legal Feminist would be happy to assist.

Yours sincerely

The Legal Feminist Collective

We are a collective of practising lawyers – solicitors and barristers – who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas, including employment law, discrimination law and public law.