Scotland to bar killers from using partner’s infidelity as murder defence, SLC proposes

The Scottish Law Commission has proposed a sweeping reform of homicide law, including a plan to stop killers from relying on a partner’s sexual infidelity as a partial defence to murder. The recommendations appear in a 162-page report on the Mental Element in Homicide, prepared for government consideration as part of a broader push to modernise Scots law. The proposals are framed as a bid to remove archaic concepts and ensure the law reflects contemporary understandings of violence and gender dynamics. The report notes that reforms would help clarify the law and improve accessibility for those affected by homicide cases.

Under current law, a defendant can seek to have a murder charge downgraded to culpable homicide by arguing that sexual infidelity provoked them. The Scottish Law Commission’s plan would remove that sexual infidelity provocation as a basis for reduction, stating that only physical violence can count as a provocative act that reduces a murder conviction. The commission argues that maintaining a defence tied to a partner’s alleged infidelity perpetuates outdated ideas about male honour and sexual possession and that such claims rarely align with contemporary understandings of culpability. The changes would be part of a broader effort to streamline homicide definitions and reduce reliance on emotive classifications.

The report also calls for removing the concept of ‘wickedness’ from the statutory definition of murder. It proposes that the statute should instead articulate two core strands: an intention to kill and an utter disregard for whether a person lives or dies. Lady Paton, the lead commissioner on the project, stressed that Scots homicide law must be fit for the 21st century. She described the current framework as a common-law-based system grounded in vague and emotive language that can be unclear, old-fashioned and gendered. The aim is to modernise, clarify and simplify the law so that its terms are accessible to judges, lawyers and the public alike.

The Scottish Law Commission’s advisory group includes senior legal figures such as Lord Beckett, the Lord Justice Clerk, and judge Lord Turnbull, alongside representatives from Police Scotland. A Scottish Government spokesman emphasized that this is a sensitive area of criminal law with significant implications for families who have lost loved ones. The spokesman said the government would carefully consider the report before deciding on next steps, underscoring that any changes would require careful assessment and consultation before being enacted into law.

The package of reforms reflects ongoing debates about provocation and gender-based violence in Scotland, with advocates arguing that current rules contribute to unequal outcomes in homicide cases. The Equality and Human Rights Commission told the SLC that abolishing the sexual infidelity defence is necessary to challenge damaging historical gender biases that can perpetuate violence against women and girls. While practitioners noted that such cases are not common, supporters say the change is important for ensuring the law aligns with modern standards of justice and equality.

If implemented, the reforms would represent a significant shift in Scots criminal law, with potential implications for how juries assess provocation and for how murder charges are prosecuted and adjudicated. The government’s careful consideration of the report will determine whether legislative changes move forward, and how quickly any reforms could be enacted.