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«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»

-- [ Page 29 ] --

There could, thus, be no duty to retreat imposed upon victims of intimate violence who pleaded self-defence. To retain such a rule handicapped women from defending themselves against an aggressor spouse. 193 However, alert to the fact that completely eliminating the duty to retreat might be an invitation to violence, the Supreme Court formulated a jury instruction that imposed a limited duty to retreat within the residence to the extent reasonably possible, but not to leave the residence. 194

5.2.3.2 The Amount of Force Used Must Have Been Reasonable

Lethal force could only be used against what was reasonably believed to be an attack with deadly force. 195 It was, therefore, never reasonable to use deadly force against a non-deadly attack or an unarmed assailant. 196 The rule in respect of the unarmed attacker has, however, been moderated over time. The courts have held that when dealing with an unarmed attacker, cognisance must be taken of the respective sizes of attacker and defender, their respective sexes, their health, the presence of multiple assailants, and the nature (violent or not) of the unarmed attack. 197 Ibid.

Ibid.

Above n185 at 1058. In Gartland the Supreme Court of New Jersey also recognised the inequity of an obligation to retreat on a cohabitee, especially one who is a victim of abuse.

However, applying the relevant state statute the court had to find that the wife who had been

attacked in her bedroom had a duty to retreat before using deadly force against her attacker.:

Gartland 694 A.2d 564 (N.J. 1977). The court was aware of the potential for unfairness of the obligation to retreat and raised the issue inviting the state legislature to reconsider the application of the retreat doctrine in the case of a spouse battered in her own home.: at 569. See also DA Smith ‘State v Gartland: New Jersey Leaning Toward a More Lenient Application of the Duty to Retreat Rule as it Affects Battered Women Who Kill Their Partners’ 1999 20 Women’s Rights Law Reporter 173, at 177-9. In this regard, Angel also notes that the Model Penal Code section 3.04(2)(b)(ii)(A)(1962) gives abused women assaulted within their own homes effective relief from the retreat doctrine. The problems arise in that manner that the state laws and courts apply the rule.: Angel above n 143 at 21.

LaFave above n17 at 542.

LaFave above n17 at 539 and 542. See for example the court’s decision in Nunn above n165.

LaFave above n17 at 542.

The test to decide if the force used was reasonable is whether the force used in defence was ‘reasonably related to the threatened harm which he seeks to avoid.’ 198 According to LaFave this will be the case only ‘if he reasonably believes that the other is about to inflict unlawful death or serious bodily harm upon him (and also that it is necessary to use deadly force to prevent it).’ 199 Regarding the use of a weapon against an unarmed attacker, the Illinois Court of

Appeal held in Reeves that:

It is a firmly established rule that the aggressor need not have a weapon to justify one’s use of deadly force in self-defence … and that a physical beating may qualify as such conduct that could cause great bodily harm. 200 In Wanrow the factor of gender was taken into account in assessing the reasonableness of the accused’s conduct. 201 In casu, the Washington Supreme Court considered the standard by which a jury ought to assess the reasonableness of the female appellant’s use of a gun against an unarmed defendant. The court took specific note of the fact that the appellant was a physically small woman with a broken leg. The attacker was a physically large man and intoxicated. Taking the specific circumstances into account, the court noted that ‘in our society women suffer from a conspicuous lack of access to training in and the means of developing those skills necessary to effectively repel a male assailant without resorting to the use of deadly weapons.’ 202 The court thus found that in requiring that the accused should have repelled her attacker ‘without employing weapons in her defence, unless the jury finds her LaFave above n17 at 540. This requirement namely ‘reasonableness of force’ is described by Huss et al as one of the three key psychological considerations that are important in judgments regarding battered women who kill. (The other two are blame and severity of the abuse suffered by the defendant.): MT Huss, AJ Tomkins, CP Garbin, RF Schopp, and A Kilian ‘Battered Women Who Kill Their Abusers: An Examination of Commonsense Notions, Cognitions, and Judgments’ 2006 21 Journal of Interpersonal Violence 1063, at 1073.

LaFave above n17 at 541.

Reeves 362 N.E.2d 9, 13 (Ill.App.Ct.1977).

Above n45 at 554.

Above n45 at 558.

determination of the degree of danger to be objectively unreasonable – constitute[d] a … distinct misstatement of the law and, in the context of this case, violate[d] the respondent’s right to equal protection of the law.’ 203 It was thus held that the trial judge had erred in his jury instruction when he created the impression that the objective standard of reasonableness that was to be applied to the accused was that of an altercation between two men. In considering the facts of the case, the court stated clearly that women should be allowed to resort to a weapon under circumstances in which such conduct would not be permissible for men, because of the fact that in a similar situation a man would be adequately protected defending himself with his fists. 204 5.2.5 A Consideration of the ‘Circumstances of the Accused’ and the Need For and Role of the Expert Witness In deciding a case where self-defence is placed in issue, the courts have been unanimous that an integral element of the assessment is to recognise and acknowledge the circumstances of the accused. It has further been noted that the lived realities of the battered woman are often beyond the understanding of the ordinary person. 205 Consequently it is often necessary for an expert witness to assist the court to reach such an understanding.





5.2.5.1 General Rules of Admissibility of Expert Evidence The rules regarding the admissibility of expert opinion testimony in the U.S.A.

were established in Frye, 206 where the court described the test for admissibility as being whether the theory or technique enjoyed general acceptance in the Above n45 at 554.

Above n45 at 558. Adler also points out that in dealing with this condition it is worth taking note of the fact that most often women will choose the weapon that insured that the violence would be decisive.: JS Adler ‘ “I loved Joe, but I had to shoot him”: Homicide by Women in Turn-of-theCentury Chicago’ 2002 92 The Journal of Criminal Law and Criminology 867, at 880.

See CP Ewing and M Aubrey ‘Battered Women and Public Opinion: Some Realities About the Myths’ 1987 2 Journal of Family Violence 257; E Greene, A Raitz and H Lindblad ‘Jurors’ Knowledge of Battered Women’ 1989 4 Journal of Family Violence 105 and case law cited later in the section.

Frye 293 F.1013 (D.C.Cir. 1910).

relevant scientific community. 207 In 1993, the court in Daubert v Merrell Dow Pharmaceuticals Inc expanded on the standard set in Frye and broadened the rules governing the admissibility of scientific evidence. 208 Whilst admitting the importance of the ‘general acceptance’ standard, Daubert added the following criteria for consideration: (i) whether the theory or technique could be and had been tested, (ii) whether the theory or technique had been subjected to peer review and publication, and (iii) the known or potential rate of error of the theory or technique. 209 The court in Daubert however, also emphasised that the list should not be seen as either rigid or exhaustive. 210

5.2.5.2 The Need For and Use of Expert Evidence in Cases of Domestic Violence 211

The question whether expert evidence on the battered woman syndrome could be offered in cases of intimate homicide was comprehensively argued for the first

Above n206 at 1014. The court held:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while it will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.: at 1014.

Daubert v Merrell Dow Pharmaceuticals Inc 509 U.S. 579 (1993). Ogle and Jacobs note that currently the rules concerning admissibility of expert testimony vary according to jurisdiction between the Frye and Daubert tests.: Jacobs and Ogle above n16 at 136.

Ibid at 593-4.

Ibid.

A conspectus of the recent available information indicates that all fifty states in America have considered the admissibility of expert evidence on the battered woman’s syndrome and forty-nine have held it to be admissible, to a greater or lesser degree, to assist in understanding why a battered woman’s killing of her abuser can be justifiable self-defence.: Ogle and Jacobs above n16 at 137.

In Louisiana the courts have taken the view that battered woman syndrome testimony can only be associated with a diminished capacity defence.: Ogle and Jacobs above n16 at 137. However, of the states that have accepted BWS testimony in cases of self-defence, twelve states have specifically enacted legislation to support the admissibility of expert evidence in such cases.

These include Alaska: Alaska Stat (1993) s11.41.200; Arkansas: Ark. Code Ann (1993) s5-10-101;

California Cal. Evid. Code (1994) s1107; Hawaii: Haw. Rev. Stat. (1993) s700-707; Illinois:

Criminal Offenses, Specific Offenses, Offenses Directed Against the Person, Bodily Harm (1993) s720; Indiana: Ind. Code Ann (1993) s35-42-2-1; Mississippi: Miss. Code Ann (1993) s93-21-103;

Missouri: Mo. Rev. Stat. (1992) s563.03; Montana: Mont. Code Ann. Chap. 10, Rule 702 (1993);

Nevada Nev. Rev. Stat. Ann (1993) s50.285; New Mexico: N.M. Stat. Ann (1993) s30-2-1; North Carolina: N.C. Gen. Stat. (1993) s14-17; North Dakota: N.D. Cent. Code (1993) s12.1-05-03;

Ohio: Ohio Rev. Code Ann. (1994) s2901.06; South Carolina: S.C. Code Ann. (1991) s16-25-20;

Utah: Utah Code Ann. (1993) s76-2-402; Virginia: V.A. Code Ann. (1993) s18.2-32; Wyoming:

Wyo. Stat. (1993) s6-1-203.

time in the U.S.A. in the case of Ibn-Tamas. 212 In casu the state alleged that the accused had shot and killed her husband because he had ordered her to pack her bags and leave the marital home. According to the evidence of the accused, her relationship with the deceased was one of continual violence. On the morning in question the deceased had against hit her several times and also threatened her with a gun which he kept in the house. 213 The accused testified that the deceased had then left the home to go to his office (which adjoined the main house) but then returned later in the morning and began assaulting her again. 214 The further evidence of the accused was that believing that the deceased would use the gun to kill her, she took the gun herself and fired several shots at the deceased, causing his death. 215 The prosecution argued that the reasonable response of a woman confronted with danger would be to call the police for assistance or leave the violent environment. Defence counsel sought to introduce expert testimony to assist the jury appraise the credibility of the defendant’s argument that she had perceived herself to be in imminent danger from her spouse and to demonstrate the fallacy of the state’s argument that her remaining with her husband was indicative of the fact that she did not really fear him. The application was refused by the trial court on the ground that to allow the experts to give such testimony would infringe the province of the jury. 216 The writer submits that the Supreme Court clearly misdirected itself in its generalised finding that battered women may leave the abusive environment at will. The decision of the court was a clear indicator of the lack of understanding that prevailed regarding the lived realities and experiences of victims of domestic violence.

On appeal, the District of Columbia Court of Appeals correctly (it is submitted) held that because the prosecution argued the ‘ordinary lay perception’ of the battered woman’s situation namely that she had alternative action available to her and could reasonably have left her husband without killing him, expert testimony Ibn-Tamas 407 A.2d 626 (Wash. 1979).

Above n212 at 630.

Ibid.

Ibid.

Ibid.



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