This clever article by a colleague from the Scottish Bar, Thomas Ross KC*,  is a great example of using a famous cultural reference to illustrate a legal issue. In this case, it is using the song “Delilah” by Welsh singer Tom Jones to highlight the disparity between Scots and English criminal law in regard to a crime of passion. It also highlights a psychological phenomenon; how social acceptance of certain cultural references can change over time when we become sensitive to the unconscious negative bias such references can cause. In this article it relates to the reinforcement of negative conduct through a popular song sung at Welsh rugby matches. The article…

“I recently caught a very spirited radio discussion on the question of whether the Welsh Rugby Union should have banned its fans from singing the Tom Jones standard ‘Delilah’ at matches. Welsh Women’s Aid took some credit for the decision having argued for years that the lyrics to the song could have the effect of ‘normalising’ violence against women. The discussion led me to wonder how many listeners appreciated the drastic effect that the scenario described in the song would have upon the sentence imposed upon the spurned killer, had the crime occurred in Paisley rather than Pontypridd.

I was a little surprised to learn how many callers claimed to be unfamiliar with the lyrics. ‘Delilah’ tells the story of a man who passed his female partner’s house to witness her engaged in an act of sexual infidelity (poetically described as ‘the flickering shadows of love on her blind’). He waited until her mystery lover had driven away, then stabbed Delilah to death when she opened her door.

Many will be surprised to learn that in Scotland in 2023, the fact that the deliberate killing of a woman took place against this background would justify the reduction of the crime from murder to culpable homicide.

Readers would expect the discovery of sexual infidelity to be regarded by a sentencing judge as a factor that had a bearing upon sentence, but it is the SPECIAL effect of the ‘infidelity’ factor that is worthy of comment.

To illustrate the point, if a new neighbour moved into a flat below me and played loud jungle music every night from midnight until 6 in the morning (in the style of the nasty priest in Father Ted), when I cracked after three months and took direct action to re-familiarise myself with nocturnal silence, the deceased’s un-neighbourly conduct WILL be taken into account when sentence comes to be passed, but the crime will STILL be murder. The sentence will STILL be one of life imprisonment, any reduction for the mitigation will be expressed in the punishment part (the period that must be served before any application for parole can be made). If a punishment part of 16 years was set, I would require to serve every day of that period before release could even be contemplated.

In contrast, if my jungle music loving neighbour went out to celebrate my incarceration, returned to find his girlfriend recreating the Delilah scenario with a work colleague, and proceeded to re-enact the lyrics to their fatal conclusion, he could claim a special kind of mitigation; namely legal provocation on the basis of sexual infidelity, which WOULD serve to reduce the crime from murder to culpable homicide. In fact, he could claim legal provocation even if he did not SEE the ‘flickering shadows of love on her blind’, it would be enough if she admitted her infidelity to him. Assuming a sentence of 12 years imprisonment for culpable homicide, there is every chance that he would be out in 6 years – a full 10 years before me.

This ‘exception’ has always struck me as strange. Mitigation for serious crimes comes in many forms. We would all sympathise with a parent who took action against an offender who had abused his / her child. All of our judges would take that fact into consideration when passing sentence – but even mitigation of that quality would NOT serve to reduce the crime from murder to culpable homicide – and a life sentence would follow. So why should an admission of infidelity have such a profound effect?

As is often the case where protection of women is concerned, our English colleagues acted more quickly and more decisively. In the case of R v Smith [2000] AC 146 Lord Hoffman observed male possessiveness should not today be an acceptable reason for loss of self-control leading to homicide’. The Coroners and Justice Act 2002 followed, providing ‘in determining whether a loss of self-control has a qualifying trigger, the fact that a thing done or said amounted to sexual infidelity is to be disregarded’ (section 55).

Some comfort for those who see the issue as I do – the matter is currently being considered by the Scottish Law Commission as part of its ‘Discussion Paper on the Mental Element in Homicide’ (Discussion Paper No 172). While noting that the exception has been ‘part of Scots law for centuries’, the Paper doubts ‘whether the reasons for the existence and continuation of the infidelity exception’ are acceptable in today’s society’ and notes that ‘the defence may be thought to sit uneasily with the Scottish Government’s campaign against domestic abuse’.

The ‘defence’ – although available to men AND women – appears to suffer from an inherent gender bias. As it was put by Lord Nimmo Smith in Drury 2001 SCCR 553 ‘while expressing no view about it, I recognise that a serious criticism that may be made of the law … is that … most often it is a man who is the killer and a woman who is the victim’

    The paper records ‘the majority of practitioners in our informal consultations criticised the current law as an unacceptable and archaic approach arising from out-dated concepts of male honour and sexual possession’.

     It ends ‘we are minded to recommend abolition of the partial defence of sexual infidelity provocations in homicide cases. Do consultees agree?’. This consultee does – what do you think?

(*The article has been republished with the kind permission of Thomas Ross KC)

NB: If you want to learn how governments should seek to change the sexual violence culture through health and legal policies see The Reward Foundation’s  most recent paper on this topic: “Problematic Pornography Use: Legal and Health Policy Considerations.”