A woman in fear for her life is not a murderer

ALISA BROOKES, 31, met Bernard Smythe, 42, in her GP's waiting room. He was a painter and decorator who said he had once earned a living as a bare-knuckle fighter. The couple began going out. Alisa soon discovered that he was a violent alcoholic. On October 25 last year, 14 months after they had first met, she stabbed Smythe three times, grabbing knives from the block within her reach, as he banged her head against kitchen cupboards. Each time, he was stabbed, Brookes said, he came back to attack her again.

"I didn't want to kill him or even to harm him," she told police, "I just wanted him to stop."

Ten days ago, she went on trial for murder. Half-way through the trial the Crown indicated that it would accept a plea of guilty to manslaughter on grounds of provocation. On Monday, Brookes was sentenced to two years' imprisonment.

During the course of the trial, evidence was given of the continual beatings Brookes had received. She also described how Smythe had often been sexually abusive. Extraordinarily, Mr Justice Blofeld gave the opinion that the violence was of "a minor nature", because Brookes had never sought medical attention for her injuries.

Some will argue that she has got off lightly (her sentence is going to appeal). But the details of her case as well as the judge's remarks indicate that while there has been some progress on the way we deal with domestic violence and its consequences, the law is still framed in such a way that it hugely favours men when it comes to the business of self- preservation.

In recent high-profile cases - those of Sara Thornton and Kiranjit Ahluwalia - the defence of provocation has been modified to encompass the way some women, as well as men, experience the world.

In law, provocation has to be sufficient to make "a reasonable man" have "a sudden temporary loss of self-control" so that he is no longer "master of his own mind". (It is rooted in the actions of men returning from the war who found that their wives had been unfaithful.) Groups such as Southall Black Sisters and Justice for Women have spent years arguing that women under duress often behave differently.

"It is based on an assumption of superior physical strength and the use of spontaneous violence more customary among men than women," Liz Kelly, of Justice for Women, explains. Men snap in the heat of the moment and strangle a nagging wife, and their temporary loss of control is understood by the judge. Women, however, who live permanently on the edge, have a harder job raising sympathy.

The barrister Helena Kennedy writes, in Eve was Framed, "When a person lives with persistent violence, her whole life is out of control... her feelings would often manifest themselves as snapping in slow motion, the final surrender of frayed elastic." This cumulative effect of provocation is now slowly (if erratically) being recognised by the courts - at least on appeal .

That understanding of the waywomen behave in extremis now also desperately needs to be applied to the plea of self-defence when facing a charge of murder.

If a defendant is found not guilty of murder, she walks free. The gamble, of course, is that if the verdict goes against her she faces a mandatory life sentence. In those circumstances, many women act as Alisa Brookes did last week, and plead guilty to manslaughter. Self-defence is particularly difficult for women to argue. The law considers it a permissible defence if there is immediate peril, instant reaction is required and the force used is proportionate. But if a woman wields a knife, for instance, no matter how much weaker she is than her attacker this is judged to be disproportionate force. In law, the person under threat must also allow the attacker the possibility of changing his mind. All of which rarely describes the scenario facing many battered women, including Alisa Brookes.

Brookes had three non-abusive affairs before Bernie Smythe. The obvious question is: why didn't she end the relationship immediately?

She says that Smythe threatened to kill her when she tried to do so. He isolated her from friends and family. He was frighteningly jealous. "I was emotionally flattened," she says. "No matter where I went, Bernie would be there..."

When the police informed Smythe's former partner, Carol Ashmore, of his death, she immediately volunteered to give evidence. She, too, had endured "a relationship... steeped in horror". At one point, Smythe had threatened to cut her throat with a carving-knife. The police had said they were unable to intervene. "What do I have to do, wait until he murders me?" Ashmore had asked.

On the day Smythe died, both he and Brookes had been drinking. A row began. Smythe attacked Brookes in the bedroom and pursued her into the kitchen; medical reports match her description of the attack. Smythe died as a result of "flailing" stab wounds to his stomach. Battered women frequently testify to a moment when they believe that it is a matter of kill or be killed. Still, since Brookes had failed to use "proportionate" force, a plea of self-defence became almost impossible to argue.

Justice for Women has been pressing for a new defence to murder: self- preservation. This may apply not just to battered women but also, say, to victims of racial attacks. It would rest on evidence of abuse, proof of a lack of intervention by others, and the defendant's perception of the danger she faced.

Critics say this amounts to a licence to kill - yet it carries no greater or less a risk than the interpretations of provocation open to men. Vera Baird, a barrister, prefers a new manslaughter plea: excessive self-defence. This would require evidence that the accused believed at the time that it was necessary to kill his or her attacker, and could well encompass a history of abuse.

Alisa Brookes, like many women in her situation, is guilt-ridden, mourning the man whom she killed. Justice should dictate that the charge of which she is convicted at least fits the "crime" that she has committed.