Battered woman syndrome

Battered woman syndrome (BWS) emerged in the 1990s from several murder cases in England in which women had killed violent partners in response to what they claimed was cumulative abuse, rather than in response to a single provocative act. Feminist groups, particularly Southall Black Sisters and Justice for Women, challenged the legal definition of provocation, and in a series of appeals against murder convictions secured the courts' recognition of battered woman syndrome.^{[1][2][3][4][5]} An early work describing the syndrome is Lenore E. Walker's The Battered Woman (1979).

The law

Until the mid-1990s, the legal definition of provocation in England had relied on Devlin J in R v Duffy [1949] 1 All ER 932: "Provocation is some act, or series of acts done (or words spoken) ... which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his or her mind." Three cases helped to change this: R v Ahluwalia [1992] 4 AER 889; R v Humphreys [1995] 4 All ER 1008); and R v Thornton (No 2) [1996] 2 AER 1023.^[1][2]

The courts in Australia, Canada, New Zealand, the United Kingdom, and the United States have accepted the extensive and growing body of research showing that battered women can use force to defend themselves and sometimes kill their abusers because of the abusive and sometimes life-threatening situation in which they find themselves, acting in the firm belief that there is no other way than to kill for self-preservation. The courts have recognized that this evidence may support a variety of defenses to a charge of murder or to mitigate the sentence if convicted of lesser offenses. Battered woman syndrome is not a legal defense in and of itself, but may legally constitute:

• Self-defense when using a reasonable and proportionate degree of violence in response to the abuse might appear the most appropriate defense but, until recently, it almost never succeeded. Research in 1996 in England found no case in which a battered woman successfully pleaded self-defense (see Noonan at p. 198). After analysing 239 appellate decisions on trials of women who killed in self-defense in the U.S., Maguigan (1991) argues that self-defence is gender biased.
• provocation;
• insanity (usually within the meaning of the M'Naghten Rules); and
• diminished responsibility.

However, in 1994, as part of the Violence Against Women Act, the United States Congress ordered an investigation into the role of battered woman syndrome expert testimony in the courts to determine its validity and usefulness. In 1997, they published the report of their investigation, titled The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials. "The federal report ultimately rejected all terminology related to the battered woman syndrome...noting that these terms were 'no longer useful or appropriate'" (Rothenberg, "Social Change", 782).^[6] Instead of using the term "battered woman", the terminology "battering and its effects" became acceptable. The decision to change this terminology was based on a changing body of research indicating there is more than one pattern to battering and a more inclusive definition was necessary to more accurately represent the realities of domestic violence.

English law

In R v Ahluwalia (1992) 4 AER 889 a woman (Kiranjit Ahluwalia), created napalm and set fire to the bed of her husband, Deepak, after he had gone to sleep. He suffered severe burns over 40% of his body and died 10 days later in the hospital. He allegedly had attempted to break her ankles and burn her with a hot iron on the night of her attack. Accusing him of domestic violence and marital rape, she claimed provocation. The judge directed the jury to consider whether, if she did lose her self-control, a reasonable person having the characteristics of a well-educated married Asian woman living in England would have lost her self-control given her husband's provocation. On appeal, it was argued that he should have directed the jury to consider a reasonable person suffering from 'battered woman syndrome'. Having considered fresh medical evidence, the Court of Appeal ordered a retrial on the basis that the new evidence showed an arguable case of diminished responsibility in English law.^[7]

Similarly, in R v Thornton (No 2) (1996) 2 AER 1023 the battered wife adduced fresh evidence that she had a personality disorder and the Court of Appeal ordered a retrial considering that, if the evidence had been available at the original trial, the jury might have reached a different decision. The victim does not have to be in a position to carry out the threats immediately.^[8]

In R v Charlton (2003) EWCA Crim 415, following threats of sexual and violent abuse against herself and her daughter, the defendant killed her obsessive, jealous, controlling partner while he was restrained by handcuffs, blindfolded and gagged as part of their regular sexual activity. The term of five years' imprisonment was reduced to three and a half years because of the terrifying threats made by a man determined to dominate and control the defendant's life. The threats created a genuine fear for the safety of herself and more significantly, her daughter, and this caused the defendant to lose control and make the ferocious attack.^[9]

In HM's AG for Jersey v Holley (2005) 3 AER 371, the Privy Council regarded the Court of Appeal precedent in Smith^[10] as wrongly decided, interpreting the Act as setting a purely objective standard. Thus, although the accused's characteristics were to be taken into account when assessing the gravity of the provocation, the standard of self-control to be expected was invariable except for the accused's age and sex. The defendant and the deceased both suffered from chronic alcoholism and had a violent and abusive relationship. The evidence was that the deceased was drunk and taunted him by telling him that she had had sex with another man. The defendant then struck the deceased with an axe which was an accident of availability. Psychiatric evidence was that his consumption of alcohol was involuntary and that he suffered from a number of other psychiatric conditions which, independently of the effects of the alcohol, might have caused the loss of self-control and induced him to kill. Lord Nicholls said:

Whether the provocative acts or words and the defendant's response met the 'ordinary person' standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self-control was sufficient excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant's conduct is 'excusable'.^[11]

Since the passage of the Coroners and Justice Act 2009, the defence of provocation—used in a number of the aforementioned cases—has been replaced with 'loss of control'.^[12]

The Law Commission Report on Partial Defences to Murder (2004) rejects the notion of creating a mitigatory defence to cover the use of excessive force in self-defence but accepts that the "all or nothing" effect of self-defence can produce unsatisfactory results in the case of murder.^[13]

Australia

In Australia, self-defence might be considered the most appropriate defence to a charge of murder for a woman who kills to protect her life or the lives of her children in a domestic violence context. It is about the rational act of a person who kills in order to save her (or his) own life.^[14] But the lack of success in raising self-defence in Australia for battered women has meant that provocation has been the main focus of the courts.^[15] In 2005, based on the Victorian Law Reform Commission's Defences to Homicide: Final Report,^[16] the Victorian government announced changes to the homicide laws in that jurisdiction, which are intended to address this perceived imbalance. Under the new laws, victims of family violence will be able to put evidence of their abuse before the court as part of their defence, and argue self-defence even in the absence of an immediate threat, and where the response of killing involved greater force than the threatened harm.^[17]

Canada

In 1911 in Sault Ste. Marie, Angelina Napolitano, a 28-year-old, pregnant immigrant, killed her abusive husband Pietro with an axe after he tried to force her into prostitution.^[18] She confessed and was sentenced to hang after a brief trial, but during the delay before the sentence was carried out (a delay necessary to allow her to give birth to her child), a public campaign for her release began.^[19] Napolitano's supporters argued that the judge in the case had been wrong to throw out evidence of her long-standing abuse at Pietro's hands (including an incident five months before when he stabbed her nine times with a pocket knife).^[19] The federal cabinet eventually commuted her sentence to life imprisonment.^[19] She was the first woman in Canada to use the battered woman defense on a murder charge.^[20]

The Supreme Court of Canada set a precedent for the use of the battered women defence in the 1990 case of R. v. Lavallee.

New Zealand

In R v Fate (1998) 16 CRNZ 88 a woman who had come to New Zealand from the small island of Nanumea, which is part of the Tuvalu Islands, received a two-year sentence for manslaughter by provocation. Mrs. Fate spoke no English and was isolated within a small close-knit Wellington community of 12 families, so she felt trapped in the abusive relationship.^[21]

Similarly, The Queen v Epifania Suluape (2002) NZCA 6, deals with a wife who pleaded provocation after she killed her husband with an axe when he proposed to leave her for another woman. There was some evidence of neglect, humiliation, and abuse but the court concluded that this was exaggerated. On appeal, the court was very conscious of the Samoan culture in New Zealand in restricting the power of the wife to act independently of her husband and reduced her sentence for manslaughter to five years.^[22]

A report of the New Zealand Law Commission examines not only violence by men against women, but also violence by women against men and in same-sex relationships.^[23]

References

Further reading

• American Bar Association Commission on Domestic Violence, Bibliography Archives
• Downs, Donald Alexander, (1996) More Than Victims: Battered Women, the Syndrome Society, and the Law (Morality and Society Series) Chicago: University Of Chicago Press. ISBN 0-226-16159-5
• Dutton, D. G. & Painter, S. (1993) "The battered woman syndrome: effects of severity and intermittency of abuse". American Journal of Psychiatry Vol. 63(4): pp614–622.
• Gillespie, Cynthia K. (1990) Justifiable Homicide: Battered Women, Self Defense, and the Law Ohio: Ohio State University Press. ISBN 0-8142-0521-6
• Gondolf, E. F. (1988). Battered Women as Survivors: An Alternative to Treating Learned Helplessness. Lexington, Mass.: Lexington Books.
• Nicolson, Donald & Sanghvi, Rohit. Battered Women and Provocation: The Implications of R v Ahluwalia. (1993) Crim. LR 728.
• McMahon, M. (1999) "Battered women and bad science: the limited validity and utility of battered woman syndrome". Psychiatry, Psychology and Law, Vol. 6(1): pp 23–49
• Noonan, S (1996). "Battered Woman Syndrome: Shifting the Parameters of Criminal Defences (or (re)inscribing the Familiar?)" in Bottomely, A (ed) Feminist Perspectives on the Foundational Subject of Law, London: Cavendish.
• Peterson, Christopher; Maier, Steven & Seligman, Martin. (1993) Learned Helplessness: A Theory for the Age of Personal Control, Oxford: Oxford University Press.
• Ratushny, Lynn. Self Defence Review: Final Report to the Minister of Justice and Solicitor-General of Canada (11 July 1997)
• Report of the New Zealand Law Commission on Some Criminal Defences with Particular Reference to Battered Defendants, report 73 (May 2001)
• Stubbs, Julie & Tolmie, Julia. Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome (1999) MULR 27.
• US Department of Justice The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act (May, 1996)
• Walker, Lenore E. (1979) The Battered Woman. New York: Harper and Row.