Battered woman defense 1

Battered woman defense

The battered woman defense is a defense used in court that the person accused of an assault / murder was suffering
from battered person syndrome at the material time. Because the defense is most commonly used by women, it is
usually characterised in court as battered woman syndrome or battered wife syndrome. There is currently no medical
classification to support the existence of this "syndrome" in the sense used by lawyers, though it has historically been
invoked in court systems. Although the condition is not gender-specific, the law has been persuaded to remedy
perceived gender bias in the operation of the defense of self-defense by admitting evidence of the condition. Thus,
this is a reference to any person who, because of constant and severe domestic violence usually involving physical
abuse by a partner, may become depressed and/or unable to take any independent action that would allow him or her
to escape the abuse. The condition explains why abused people may not seek assistance from others, fight their
abuser, or leave the abusive situation. Sufferers may have low self-esteem, and are often led to believe that the abuse
is their fault. Such persons may refuse to press charges against their abuser, or refuse all offers of help, perhaps even
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,[1] even though neither the DSM nor
the ICD medical classification guides 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 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.
Again, battered woman syndrome is not a legal defense, 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 p198). 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)[2] . 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.
Battered woman defense 2

English law

Generally
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.[3]
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.[4]
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.[5]
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'.[6]

Gender of the victim

Gender is also irrelevant. In AG's Reference (No.24 of 2003) (2003) EWCA Crime 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.[7]
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:
Battered woman defense 3

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.[8]

Family environment
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 provocation experienced by the defendant.[9]
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.[10]

Reform
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.[11] 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 psychiatrists 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.[12] 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[13] In 2005, based on the
Victorian Law Reform Commission's Defences to Homicide: Final Report,[14] 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.[15]
Battered woman defense 4

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.[16] 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.[17] 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).[17] The federal cabinet eventually commuted her
sentence to life imprisonment.[17] She was the first woman in Canada to use the battered woman defense on a murder
charge.[18]

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.[19]
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.[20]
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.[21]

References
[1] As ICD9 code 995.81 Battered person syndrome NEC (http:/ / icd9. chrisendres. com/ index. php?action=search& srchtext=995. 81)
[2] Rothenberg, Bess. “’We Don’t Have Time for Social Change’ Cultural Compromise and the Battered Woman Syndrome.” Gender and Society
Oct. 2003:771-87.
[3] R v Ahluwalia (1992) 4 AER 889.
[4] R v Thornton (No 2) (1996) 2 AER 1023.
[5] R v Charlton (2003) EWCA Crim 415.
[6] HM's AG for Jersey v Holley (2005) 3 AER 371.
[7] AG's Reference (No.24 of 2003) (2003) EWCA Crim 2451.
[8] R v Howell (1998) 1 Cr. App. R. (S.) 229.
[9] R v Murray (2001) 2 Cr. App. R. (S) 5.
[10] R v T (1990) Crim. LR 256.
[11] The Law Commission Report on Partial Defences to Murder (2004), Part 4 (pp. 78-86) found at (http:/ / www. lawcom. gov. uk)
[12] See Osland v The Queen [1998] HCA 75 (10 December 1998) found at (http:/ / www. austlii. edu. au/ au/ cases/ cth/ high_ct/ 1998/ 75.
html)).
[13] See Battered Women and Self Defence found at (http:/ / law. anu. edu. au/ criminet/ tselfd. html#battered)).
[14] Victorian Law Reform Commission's Defences to Homicide: Final Report, found at Victorian Law Reform Commission's Defences to
Homicide: Final Report (http:/ / www. lawreform. vic. gov. au/ CA256902000FE154/ Lookup/ Homicide_Final_Report/ $file/ FinalReport.
pdf)
[15] The Age artilce (http:/ / theage. com. au/ news/ national/ end-draws-near-for-defence-of-provocation/ 2005/ 10/ 04/ 1128191716823. html).
[16] Platinum Image Film press release New Film About Italian Immigrant, March 13, 2006. Accessed June, 2008 via A Guide to Women in
Canadian History (http:/ / www. heroines. ca/ news/ archives2006. html)
[17] Dictionary of Canadian Biography Online: Angelina Napolitano. By Franca Iacovetta. University of Toronto/Université Laval, 2004. page
accessed June 2008 (http:/ / www. biographi. ca/ EN/ ShowBio. asp?BioId=42085& query=)
[18] I just killed a pig by David Helwig. SooToday.com, May 06, 2004. (http:/ / www. sootoday. com/ content/ news/ full_story.
asp?StoryNumber=6944) Online version accessed June, 2008.
[19] R v Fate (1998) 16 CRNZ 88.
Battered woman defense 5

[20] The Queen v Epifania Suluape (2002) NZCA 6(21 February 2002) (http:/ / www. worldlii. org/ cgi-bin/ disp. pl/ nz/ cases/ NZCA/ 2002/ 6.
html?query=tuvalu*)
[21] Report of the New Zealand Law Commission on Some Criminal Defences with Particular Reference to Battered Defendants, report 73 (May
2001) found at New Zealand Law Commission (http:/ / www. lawcom. govt. nz/ UploadFiles/ Publications/ Publication_80_194_R73/ html/
Publication_80_194_R73. html)

• American Bar Association Commission on Domestic Violence, Bibliography Archives (http://www.abanet.org/

domviol/BibliographyArchives.pdf)
• 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) (http://www.justice-canada.net/en/dept/pub/sdr/rtush-intro.html)
• Report of the New Zealand Law Commission on Some Criminal Defences with Particular Reference to Battered
Defendants, report 73 (May 2001) (http://www.lawcom.govt.nz/UploadFiles/Publications/
Publication_80_194_R73/html/Publication_80_194_R73.html)
• 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) (http://www.ncjrs.
org/pdffiles/batter.pdf)
• Walker, Lenore E. (1979) The Battered Woman. New York: Harper and Row.

External links
• U.S. materials and bibliography (http://libguides.law.gsu.edu/content.php?pid=110018)
Article Sources and Contributors 6

Article Sources and Contributors

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