A new bill that seeks to remove the validity of the sudden-passion defence from violent crimes committed by men against women is blatantly discriminatory, lawyers have said. 

Under the proposed law, when a male is convicted of wilful homicide against a female, the court must consider whether hatred towards women was a motivating factor and if so, mete out the harshest possible penalty merited.

‘Crime of passion’ would no longer be a defence in cases when a man commits violence against a woman.

Lawyers said the bill blatantly discriminates against men.

“This is a knee-jerk reaction of a law,” lawyer Arthur Azzopardi said.

“Its sole purpose is to be populist in nature while creating more discrimination without really addressing the issue.

“It is true that overwhelmingly it is women who end up the victims of men... I know and have represented many of them.”

He said the proposed law precludes the defence of sudden passion in the case of a man killing a woman.

“But what about in other instances? There are so many other contexts in which these types of crimes occur that have not been considered.”

Azzopardi believes that should the law be challenged in court, there would be a good chance of striking it down.

“This is clearly in breach of laws set out in the European Convention on Human Rights, our constitution and the EU charter on rights,” he said.

“It will fail because knee-jerks always do. This law should be withdrawn, studied properly and drafted again.”

Lawyer Joe Giglio said the law already punishes those convicted of wilful homicide with life imprisonment.

“It’s interesting to see the way the law was drafted while ignoring LGBTIQ relationships,” he said.

“Gender is not only limited to men and women, there are nonbinary and transgender people as well. There are also people in same-sex relationships who may find themselves in intimate partner violence. If their aggressor happens to be a woman, shouldn’t they receive the same treatment at law?

“I get the sense that this law was a bit rushed because you cannot have a situation where some people have less rights than others,” he added.

“When women are the aggressors, rare as it may be, why does the defence of sudden passion apply to one scenario and not another?”

Two other lawyers who spoke to Times of Malta confidentially also expressed concern that if passed, the law would create issues in the future.

“Politically, I think the government sought to strike a happy balance in the circumstances because given that homicide already carries the highest possible penalty, there was not much room for manoeuvring,” one criminal lawyer said.

“But certain problems will arise from a legal aspect, especially as sudden passion is being excluded as a defence in these very specific circumstances. It’s discriminatory.”

The other lawyer pointed out that discriminating on the basis of gender did nothing to address the root problem – that people feel victims of femicide do not receive due justice.

“Femicide is an issue and we cannot doubt the problem we have of violence against women,” he said.

“But this bill does not address it, because the law clearly sets out the highest possible punishment for murder.

“The problem is what is happening in court. Why are people being acquitted? Why is less severe punishment being given out? The problem is not the law but the way it is being applied.”

The lawyer suggested that perhaps the police, the judiciary and even the prosecution are not sensitive enough to the issue.

“Perhaps we need to rethink how those branches approach these cases. But in this case, in terms of punishment, the law is already giving you the maximum,” the lawyer contended.

A rising international movement

As violent crimes against women gain international scrutiny, women’s movements and national governments have been bringing the issue to the forefront in the apparent absence of legislation.

One such movement arose in the UK – which does not have laws specifically about femicide – after the rape and murder of 33-year-old Sarah Everard in March, 2021.

The murder sparked outrage, with vigils highlighting the need for greater debate about women’s safety and domestic violence.

In the wake of Everard’s murder, the British government reopened a public consultation on a strategy to tackle violence against women and girls.

After the killing of 23-year-old primary school teacher Ashling Murphy in Ireland last month, Irish Justice Minister Helen McEntee said the government would introduce new laws to make stalking a specific criminal offence.

According to the European Institute for Gender Equality, an autonomous EU body, none of the 27 member states have legal definitions for femicide.

The killings of women are classified in different ways, most often as homicide or manslaughter. However, some are bringing into law ways to acknowledge gendered motivations behind the murder of women, such as by introducing aggravated circumstances like hatred towards a person on the grounds of their sex.

The parliament in Cyprus is considering a proposal to make femicide a distinct criminal offence punishable by life imprisonment, by changing the description of the offence to acknowledge women who are killed because of their gender.

This year Spain broadened its official definition of femicide to include the murder of any woman in which gender is deemed to have played a role, whether or not there was a prior relationship between the victim and the aggressor.

Research carried out in 2019 by the Canadian Femicide Observatory for Justice and Accountability highlighted that introducing femicide as a formal criminal offence was a key sign of progress.

Since 2007, nine Latin American countries have introduced such legislation and continued to expand on it.

Femicide is a distinct crime in Bolivia, El Salvador, Guatemala, Mexico, Nicaragua, Panama, Paraguay, Peru and Venezuela. 

In Europe, the institute for gender equality recommends that member states produce a harmonised definition of femicide to establish comparable data and keep better records on the killing of women and girls.