Battered woman defence
Editor-In-Chief: C. Michael Gibson, M.S., M.D. [1]
Overview
The battered woman defense is a legal defense representing that the person accused of an assault or murder was suffering from battered person syndrome at the material time. Because the defence is almost invariably invoked by women, it is usually characterised in court as battered woman syndrome or battered wife syndrome. Although the medical condition is not gender specific, the law has been persuaded to remedy perceived gender bias in the operation of the defence of self-defence by admitting evidence of the medical condition. Thus, this is a reference to any person who, because of constant and severe domestic violence usually involving physical abuse by a partner, becomes depressed and unable to take any independent action that would allow him or her to escape the abuse. The condition explains why abused people often do not seek assistance from others, fight their abuser, or leave the abusive situation. Sufferers have low self-esteem, and often believe that the abuse is their fault. Such persons usually refuse to press charges against their abuser, and refuse all offers of help, often becoming aggressive or abusive to others who attempt to offer assistance. This has been problematic because there is no consensus in the medical profession that such abuse results in a mental condition severe enough to excuse alleged offenders. Nevertheless, the law makes reference to a psychological condition (as ICD9 code 995.81 Battered person syndrome NEC [2] or otherwise included within DSM-IV as a sub-category of post-traumatic stress disorder), even though neither medical classification as currently drafted, includes the syndrome in the sense used by lawyers.
The law
The courts in Australia, Canada, New Zealand, United Kingdom, and United States have accepted the extensive and growing body of research showing that battered partners 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 recognised that this evidence may support a variety of defences to a charge of murder or to mitigate the sentence if convicted of lesser offences. Battered Women syndrome may legally constitute:
- Self-defence when using a reasonable and proportionate degree of violence in response to the abuse might appear the most appropriate defence but, until recently, it almost never succeeded. Research in 1996 in England found no case in which a battered woman successfully pleaded self-defence (see Noonan at p198). After analysing 239 appellate decisions on trials of women who killed in self-defence in the U.S., Maguigan (1991) argues that self-defence is gender biased both in its nature and in the way it is applied by trial judges;
- self-defence where the battered person was justified in acting in self-defence but used excessive force;
- provocation;
- insanity (usually within the meaning of the M'Naghten Rules); and
- diminished responsibility.
English law
In R v Ahluwalia (1992) 4 AER 889 a battered wife killed her violent and abusive husband. She claimed provocation and 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. 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. 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 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. In HM's AG for Jersey v Holley (2005) 3 AER 371 the Privy Council regarded Smith 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'.
Gender is also irrelevant. In AG's Reference (No.24 of 2003) (2003) EWCA Crim 2451 the defendant who had a low IQ, suffered prolonged taunting from his wife as to his illiteracy and impotency. During an argument, he stabbed her (and his son) and then wounded himself with a knife purchased during a break in the argument to harm himself rather than others. Sentences of three and a half years for each offence to be served concurrently were imposed, the sentencing judge referring to the defendant as having been worn down over months and eventually broken by the cruel taunting of his wife and being forbidden from seeing his children. When a weapon is used, the court is more cautious. In R v Howell (1998) 1 Cr. App. R. (S.) 229 the Court of Appeal reduced a sentence of 6 years to three and a half years. The wife's use of a gun to kill her violent husband weighed heavily in the "difficult balancing exercise" which the Court had to perform. In giving its judgment, the Court said:
- On the one hand there is the principle that spouses must not resort to the use of firearms however unhappy their marriage is. On the other hand there is the duty of the court to temper justice with mercy, even if a man has died, when there is a history of provocation and violence of the type that is so clearly shown in this case.
The abuse may pervade the family environment. In R v Murray (2001) 2 Cr. App. R. (S) 5 following years of violence and abuse to both himself and his mother, the young defendant took an iron bar from the victim (his stepfather), and attacked and killed him with it. In reducing the custodial sentence from five years detention to an eighteen-month detention and training order, the Court of Appeal said that the trial judge had not given proper weight to the long period of abuse and the cumulative provocation experienced by the defendant. Finally, on the related condition, R v T (1990) Crim. LR 256 offered clinical evidence of post-traumatic stress disorder after a rape three days earlier to explain an armed robbery which involved her stabbing her victim and reaching into the victim’s car to take her bag. Such a disorder is closely similar in effect to that of concussion caused by a physical blow and Southan J. allowed the defence of automatism to go before the jury, accepting that an incident such as rape could have a traumatic effect on a young woman, however stable, and that could satisfy the requirement laid down in R v Quick & Paddison that there had to be evidence of "an external factor" causing a malfunctioning of the mind. Post-traumatic stress where the evidence suggested that the defendant was acting as though in a "dream", could therefore amount to automatism. The jury nevertheless convicted her. For more detail, see automatism (case law).
Reform
The Law Commission Report on Partial Defences to Murder (2004) [3] Part 4 (pp78/86) 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. A battered woman, partner in a same-sex relationship or abused child using excessive force because he or she is physically at a disadvantage and not under imminent attack, would be denied a defence. It was always possible that the same set of facts could be interpreted as either self-defence or provocation where there was a loss of control resulting in death. Thus, the Commission recommends a redefinition of provocation to cover situations where a person acts lethally out of fear. This reflects the present view of psychiatrsts that most people act in violent situations with a combination of fear and anger in their minds, and to separate the two emotions is not legally constructive.
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 (see Osland v The Queen [1998] HCA 75 (10 December 1998)[4]). 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 (see Battered Women and Self Defence [5]). In 2005, based on the Victorian Law Reform Commission's Defences to Homicide: Final Report [6], the Victorian government announced changes to the homicide laws in that state, 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.[7]
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 or so families so she felt trapped in the abusive relationship. Similarly, The Queen v Epifania Suluape (2002) NZCA 6 (21 February 2002)[8] 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. The helpful 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.
References
- American Bar Association Commission on Domestic Violence. Bibliography Archives.[9]
- 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.
- Griffith, M. (1995). "Battered woman syndrome: a tool for batterers?" Fordham Law Review. Vol. 64(1): pp141-198.
- Nicolson, Donald & Sanghvi, Rohit. Battered Women and Provocation: The Implications of R v Ahluwalia. (1993) Crim. LR 728.
- Maguigan, H. (1991). "Battered Women and Self-Defence: Myths and Misconceptions in Current Reform Proposals", University of Pennsylvania Law Review, 140(2): 379-486.
- 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)[10]
- Report of the New Zealand Law Commission on Some Criminal Defences with Particular Reference to Battered Defendants, report 73 (May 2001) [11]
- 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) [12]
- Walker, Lenore E. (1979) The Battered Woman. New York: Harper and Row.
- Warren, L. (2002). "The indigent defendant's toolbox: debating the addition of the battered woman syndrome expert". University of Chicago Law Review Vol. 69(4): pp2033-2055