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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 ...»

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would have been helpful in providing a different interpretation of the facts. 217 The Appeal Court also pointed out that the fact that the average lay person did not always understand that battered women are afraid of their abusers but do not leave them because they believe that the abusers will find them and harm them even more. The court reasoned that, ordinarily, jurors would not draw such a conclusion for themselves. 218 The Appeal Court held further that the expert’s evidence could serve two basic functions: firstly, it would strengthen the credibility of the accused and secondly, it would help the jury understand her belief that she was in imminent danger. 219 Ferren J found that the expert testimony relating to battered women, which was given by a clinical psychologist at the trial in support of the accused’s claim of self-defense to the killing of her husband, was not inadmissible on grounds that it would invade the province of the jury or that its probative value was outweighed by its prejudicial impact. 220 In the later case of Kelly, the New Jersey Supreme Court upheld the admissibility of expert evidence on the battered woman syndrome on the specific ground that it assisted the court to understand that the experience of the defendant ‘although concededly difficult to comprehend, was common to that of other women who have been in similarly abusive relationships.’ 221 The court was of the opinion that expert testimony ‘would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge.’222 In Kelly it was found that expert testimony assisted the jury in understanding that a woman who honestly feared that she would suffer serious bodily harm from her husband’s attacks, nevertheless continues to remain with him. 223 Above n212 at 633. In support of its argument, the court drew the analogy with psychiatric testimony that was admitted in the case of Hearst 563 Fed.2d 133 (1977). Just as the court in Hearst held that the psychological effects of kidnapping were beyond the understanding of the average person, the Appeal Court in Ibn-Tamas concluded that the effects of battery were also beyond common knowledge.: above n212 at 635.

Above n212 at 633.

Above n212 at 634.

Above n212 at 626.

Kelly 478 A.2d 364, 375 (N.J. 1984) Above n221 at 378.

Above n221 at 375. The court found that the expert is in a position to highlight the common myths that battered women are free to leave the abusive environment and their failure to do so is often an indication of a masochistic character trait; or proof that the beatings ‘could not have been too bad’. The expert is able to assist the court to understand the battered woman’s ‘inability to In Torres the New York Criminal Court also recognised that the average layman has several misconceptions concerning the options available to a victim of domestic violence and that the specialised input of an expert is essential to properly assist the jury to disregard their prior erroneous beliefs. 224 Angel reiterates the need for courts to admit expert evidence to educate the jury and to explain the conduct of the accused. She points out that in many instances members of the jury come into the courtroom with preconceived – often incorrect – opinions and views on domestic violence.

225 Thus, she proposes:

Education must take place during the trial; including specific events, and the expert evidence to explain both specific and context evidence. 226 In clarifying the behaviour of victims of domestic violence experts have often referred to the victim’s ‘hyperalertness’ to the behaviour of the abuser. 227 The experts generally agree that a woman, who has been in an intermittently abusive relationship over a period of time, learns to recognise the smallest signs that precede an explosive outburst. This may include subtle changes in facial expression, tone of voice or particular mannerisms. The experts note specifically that the victim’s perception of a threatening situation is made more acute by fact that she has experienced similar behaviour on several previous occasions. 228 In discussing the character marker of hyperalertness evident in victims of domestic violence, Blackman notes that women who live with domestic abuse leave’ and the social, economic and psychological factors that impact on her decision to remain in the abusive relationship.: above n221 at 377.

Torres 488 N.Y.S. 2d 358, 363 (N.Y. Crim. Ct. 1985). See also Hodges above n132; Ciskie 751 P.2d 1165 (Wash. 1988) and Day 2 Cal. Rptr 2d 916 (Ct. App. 1992).

M Angel ‘Susan Glaspell’s Trifles and A Jury of her Peers: Women Abuse in a Literary and Legal Context’ 1997 45 Buffalo Law Review 779, at 815.

Above n225 at 816.

See generally E Hilberman and K Munson ‘Sixty Battered Women’ 1977-8 2 Victimology 460;

E Hilberman ‘Overview: The “Wife-Beaters” Wife Reconsidered’ 1980 137 American Journal of Psychiatry 1336; and specifically A Mc Cormack, AW Burgess and C Hartman ‘Familial Abuse and Post-traumatic Stress Disorder’ 1988 1 Journal of Traumatic Stress 231, at 233; LEA Walker ‘Post-Traumatic Stress Disorder in Women: Diagnosis and Treatment of Battered Woman Syndrome’ 1991 28 Psychotherapy 21, at 23; and DG Saunders ‘Posttraumatic Stress Symptoms Profiles of a Battered Woman: A Comparison of Survivors in Two Settings’ 1994 9 Violence and Victims 31, at 41.


have had the opportunity to hone their perceptions of their partner’s violence and often become ‘attuned to the violence’. 229 Battered women develop ‘a survival skill’ which enables them to immediately identify danger which is different. 230 ‘Importantly, they can say what made the final episode of violence different from the others: they can name the features of the last battering that enabled them to know that this episode would result in life-threatening action by the abuser,’ points out Blackman. 231

In other words, Blackman summarises:

… a battered woman, because of her extensive experience with the abuser’s violence, can detect changes or signs of novelty in the pattern of normal violence that connotes increased danger. 232 The trait of hyperalertness is a further aspect of the reality of the lived experience of the battered woman that the expert would bring into the courtroom and it is arguably one of the more valuable areas in which expert evidence can assist the lay person. Blackman further identifies this ability and the need for the court to understand this ability as being perhaps the single most important idea to be conveyed by expert testimony in cases where a battered woman kills her batterer whilst he is sleeping or not actively posing a threat to her and then pleads selfdefence. 233 However, Blackman emphasises that when placing hyperalertness before the court, [s]upport for this assertion must come from the woman herself, in her spontaneous, self-initiated description of the events that precede her action against the abuser. Only then can testimony from an expert offer scientific support for the idea that such a danger detection process can

–  –  –

Confirming the admissibility of expert evidence on the battered woman syndrome, the court in Hennum noted that the battered woman syndrome is beyond the experimental stage and has gained sufficient scientific acceptance to warrant admissibility. 235 Specifically on the subject of expert evidence, President George W Bush (Sr) signed the Battered Women’s Testimony Act (1992) into law. 236 Posch points out that it is important to note that the Act contains express provisions advising state officials to accept and adopt the use of BWS testimony in light of the increasing numbers of abuse reported abuse cases. 237 However, in reviewing the rulings of the courts Burke raises a particularly interesting point. He points out that if one accepts the standards for admissibility set out in Daubert one is faced with the situation that whilst also focusing on ‘general acceptability’, it also requires specifically that consideration be given to the known or potential margin of error of the theory. In this regard and taking cognisance of all the literature on the subject, Burke suggests that the admissibility of the battered woman syndrome theory ‘has enjoyed more unquestioned acceptance than it should, particularly in light of recent scrutiny of Above n136 at 237.

Hennum 441 N.W.2d 793, 800 (Minn.1989). However, from the above discussion, it is clear that there is no unanimity between the different states in the U.S.A. regarding the nature of the testimony that will be accepted from an expert in cases involving battered women.

This was a very important step in the right direction for as identified in the research of Schuller and Rzepa respondents provided with expert testimony rated the testimony quite favourably and ‘a greater verdict leniency was evidenced when battered woman syndrome testimony was presented compared to a no expert control.’: RA Schuller and S Rzepa ‘Expert Testimony Pertaining to Battered Woman Syndrome: Its Impact on Jurors’ Decisions’ 2002 26 Law and Human Behaviour 655, at 658.

Conrad urges that in addition to the role of the expert in the courtroom, early consultation during the preparation of the defence between the lawyer and the expert is necessary to assist counsel to develop an awareness of common misconceptions about battered women and to avoid the risk of those stereotypes tainting early case preparations.; AF Conrad ‘The Use of Victim Advocates and Expert Witnesses in Battered Women Cases’ 2001 30 The Colorado Lawyer 43, at

44. Conrad emphasizes the importance of counsel actually understanding (i) why the accused may believe that the killing was her fault, despite claiming that she acted to defend herself, (ii) why the accused might continue to attempt to rationalize the abuser’s violence by blaming herself for making him angry, and (iii) the social, legal and economic barriers faced by the accused.: at 44.

expert testimony generally.’ 238 It is respectfully submitted that this may be the appropriate incentive for change by the courts in the United States – directing them to look at the effects of battering rather than only at the battered woman syndrome. The Nature of the Expert Evidence that Will Be Admitted in Cases of Domestic Violence In Kelly the New Jersey Supreme Court had to decide the question of whether the expert should be permitted to express an opinion on the subjective belief of the accused that she was in imminent danger as well as on the objective standard of reasonableness that applies in cases of self-defence. 239 In his judgment, Wilentz CJ summarised the purpose of expert evidence and stated that expert testimony in cases involving battered women was not intended to explain and justify the defendant’s perception of the danger (as was stated by the trial court): rather, the evidence is admitted to demonstrate the ‘objective reasonableness of [her] perception.’ 240 The court held that whilst an expert is important to explain the battered woman syndrome, no expert testimony is needed to tell a jury that a person who has been beaten severely and continuously might have a reasonable fear that she is in imminent danger. 241 Thus, the court refused to allow the expert to express the opinion that Kelly’s belief that she was in imminent danger was reasonable because, according to the court, the area of the expert’s knowledge only related to the reasons why she was unable to leave her husband. 242 Further, the court stressed that the assessment of the objective element of reasonableness was considered a decision specifically within the authority of the court. 243 AS Burke ‘Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman’ 2002 81 North Carolina Law Review 211, at 235; also Roberts above n22 at 141.

Above n221.

Above n221 at 368.

Above n221 at 375.


Above n221 at 374.

In Aris the California Appeal Court confirmed that expert evidence was only relevant insofar as the determination on the subject element of self-defence is concerned. 244 In casu, the court was, however, prepared to grant the expert greater latitude in the nature of the evidence that would be admitted. The court found that battered woman syndrome expert testimony was ‘highly relevant to the first element of self-defense – the defendant’s actual, subjective perception that she was in danger and that she had to kill her husband to avoid that danger.’ 245 The court was prepared to admit expert evidence to substantiate the defendant’s credibility and support her actual belief of imminent harm but it was unanimous that expert evidence would not be admitted to show the reasonableness of the accused’s actions. 246 In Aris (and subsequently also in Day 247) the court took a firm approach that the opinions presented by the expert should not be used by the jury in its determination of reasonableness.

However, in Humphrey, deviating from Aris and Day (and Kelly), the court accepted that the evidence of battered woman syndrome is generally relevant to the subjective existence, as well as to the reasonableness of the defendant’s belief in the need to use deadly force to protect herself against the actions of the

abuser. 248 In reasoning its different approach, the court noted:

Those two cases [Aris and Day] too narrowly interpreted the reasonableness element. [They] failed to consider that the jury, in determining objective reasonableness, must view the situation from the defendant’s perspective. 249 Although the court accepted that the opinion of the expert was relevant in the jury’s assessment of reasonableness, the court emphasised that the standard remained an objective one and that the ultimate question was still whether a reasonable person in the situation and with the knowledge of the accused – not a Aris above n62.

Aris above n62 at 179-80. See also Furlough 797 S.W.2d 631, 651 (Tenn. Crim. App. 1990);

and Wilken 407 S.E.2d 670, 672 (S.C. Ct. App. 1991).

Aris above n62 at 167 and 179.

Day above n224 at 922 and 924.

Above n137 at 10.

Above n137 at 8.

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