ⓘ Battered woman syndrome
Battered woman syndrome 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.
In a series of appeals against murder convictions, feminist groups particularly Southall Black Sisters and Justice for Women challenged the legal definition of provocation and secured the courts recognition of battered woman syndrome.
Until the mid-1990s, the legal definition of provocation in England had relied on Devlin J in R v Duffy 2 AER 1023.
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:
- diminished responsibility.
- insanity usually within the meaning of the MNaghten Rules; and
- 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-defense is gender biased.
1. 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 husbands 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 years because of the terrifying threats made by a man determined to dominate and control the defendants 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 HMs AG for Jersey v Holley 2005 3 AER 371, the Privy Council regarded the Court of Appeal precedent in Smith as wrongly decided, interpreting the Act as setting a purely objective standard. Thus, although the accuseds 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 accuseds 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 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 defendants 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 defendants conduct is excusable.
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.
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.
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. 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. In 2005, based on the Victorian Law Reform Commissions Defences to Homicide: Final Report, 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.
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. 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. Napolitanos supporters argued that the judge in the case had been wrong to throw out evidence of her long-standing abuse at Pietros hands including an incident five months before when he stabbed her nine times with a pocket knife. The federal cabinet eventually commuted her sentence to life imprisonment. She was the first woman in Canada to use the battered woman defense on a murder charge.
The Supreme Court of Canada set a precedent for the use of the battered women defence in the 1990 case of R. v. Lavallee.
4. 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.
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.
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.
5. United States
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 ". 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 more accurately represented the realities of domestic violence.
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