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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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reasonable battered woman – would believe in the need to kill to prevent imminent harm. The court further confirmed that ‘[m]oreover, it is the jury, not the expert that determines whether the defendant’s belief and, ultimately, her actions, were objectively reasonable.’ 250 Particularly with regard to expert evidence as to the accused’s state of mind at the time of the incident forming the basis of the charge, the court in Bednarz referred to the principle set out in Jensen. 251 According to the court in Jensen, the expert ‘may describe the behaviour of victims of the same type of crime; the expert may also be asked to describe the behaviour of the complainant; and then, the expert may be asked if the complainant’s behaviour is consistent with the behaviour of other victims.’ 252 The court in Bednarz confirmed that in accordance with Jensen no witness ‘whether expert or lay, would be allowed to testify to the accused’s state of mind …’ 253 In Wilken, however, the Appeal Court of South Carolina expressed the contrary view and held that ‘[q]uestions going to an expert’s knowledge of state of mind of the accused at the time of the crime are proper, and the expert’s opinion as to state of mind is admissible.’ 254 However, a consequence of allowing the expert to Above n137 at 9.

Bednarz 507 N.W.2d 168 (Wis. Ct. App. 1993); Jensen 432 N.W.2d 913 (Wis. Ct. App. 1988).

Jensen above n251 at 920.

Bednarz above n251 at 171. See also Richardson 525 N.W.2d 378, 383 (Wis. Ct. App. 1994);

Witt 892 P.2d 132, 138 (Wyo. 1995); and Christel 537 N.W.2d 194, 201 (Mich. 1995). These rulings are in line with the opinion of some of the legal writers on an allied subject namely, expert opinion in child sexual abuse cases. Referring to the latter cases, Myers et al note that there is a spectrum of evidence that may be presented, ranging from an opinion that the abuse has occurred to an opinion that the child demonstrates age-inappropriate sexual knowledge and behaviour. JEB Myers, J Bays, J Becker, L Berliner, DL Corwin, and KJ Saywitz ‘Expert Testimony in Child Sexual Abuse Litigation’ 1989 68 Nebraska Law Review 1, at 79-86. They argue that expert testimony that states that a child has been abused usually presents problems. It is their opinion that the consensus view of the experts in the area is that experts can competently determine whether a victim exhibits age-inappropriate behaviour, but cannot competently determine whether sexual abuse has occurred.: 85. However, Serato takes a different view arguing that it is anomalous to allow the expert to testify in regard to the victim’s characteristics and conduct and then to prevent inferences to be drawn from the expert’s observations. He maintains that from the observations of children alleging sexual abuse, ‘social scientists are better qualified than the courts to draw conclusions on veracity.’: V Serato ‘Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses’ 1988 68 Boston University Law Review 155, at 181.

Wilken above n245 at 672. In Peeples v Commonwealth 504 S.E.2d 870 (Va.Ct.App.1998) the court was not faced with a case involving domestic violence but it was required to make a decision on the admissibility of expert evidence on an accused’s state of mind at the time of acting in selftestify on the state of mind of the accused is that it could rise to an adverse psychological examination of the accused by the state’s expert. This was the

case in Hennum, 255 in which the trial court held:

The state of mind and subjective beliefs of the defendant prior to and at the time of her act is integral to her self-defense theory. Therefore, in order to have a fair opportunity to rebut it, the State should be entitled to have its own expert examine the defendant. 256 The accused appealed against the Order of the trial court for an adverse medical examination. The Appeal Court of Minnesota ruled that to allow the defence to produce expert testimony based on a clinical examination of the defendant without providing the state with an opportunity to conduct a similar examination denied the state a chance to rebut the expert testimony of the defence. 257 However, the court was also aware that in the absence of any legislative enactment authorising such an examination, it would be ultra vires to make such an order. 258 In an attempt to circumvent the need for such a clinical examination and keep within the letter of the law, the Court of Appeal held that any expert testimony regarding battered woman syndrome would thus be restricted to (i) a description of the general syndrome and (ii) the characteristics which are present in a victim of the syndrome. 259 The court held that the expert should not be allowed to testify as to the ultimate fact that the particular defendant actually suffered from battered woman syndrome. This determination must be left to the defence. The court found that such evidence was not only relevant ‘but crucial in deciding the truthfulness of a defendant’s self-defense claim.’: at 875. Lenkevitch notes that the ‘expansion of the use expert testimony in self-defense cases may allow domestic violence victims the opportunity to introduce expert testimony at trial to explain the state of mind of the battered woman defendant at the time she struck back at her abuser.’: above n2 at 300.

Above n235.

Above n235 at 799.

Above n235 at 800.

Above n235 at 785. The court in casu relied on the precedent that had been established in Olson 143 N.W.2d 69 (Minn. 1966) where the court had been asked to prohibit the compelled psychological examination of a defendant pleading not guilty by reason of insanity. At the time there was no rule authorizing such an examination and the Olson court had to consider whether it was within the inherent power of a district court to order a psychiatric examination to determine criminal responsibility where the statute of the state was silent on the relevant procedures.: at 71.

The Minnesota Appeal Court in Olson held that in the absence of a legislative enactment, a court has no legal basis for ordering such an examination.: at 75.

Above n235 at 785.

triers of fact. 260 The court held further that each party would be allowed to present witnesses who could testify to the characteristics possessed by the defendant which were consistent with those found in someone suffering from battered woman syndrome. 261 The court was of the view that this more restricted approach would remove the need for a compelled adverse clinical examination of the defendant. Since the expert would only be allowed to testify as to the general nature of the battered woman syndrome, neither side need conduct an examination of the defendant. 262 However, the point of the court in Allery is worth noting. 263 In casu, the Supreme Court of Washington held that expert evidence would only be admitted after it was established that the expert was qualified to testify about the syndrome and the defendant had through her own evidence established herself as a battered woman. 264 Thus, expert evidence on domestic violence and its impact provides an informed context within which a court may reason and reach its decision. As Schuller points out, ‘Simply having [the accused] testify that she was beaten and afraid of her partner does not educate the jury to the dynamics of the situation.’ 265 It is submitted that the testimony of the expert will assist the court to more effectively evaluate the evidence and dispel the misconception that a reasonable person would never have remained in such an abusive relationship. 266 Similarly, Dutton describes the purpose of the expert in cases of domestic violence as being primarily to provide the court with an understanding of general principles of Ibid.



Allery 682 P.2d 312 (Wash. 1984).

Above n263 at 316. See also Thomas 423 N.E.2d 137 (Ohio 1981) where the Ohio Supreme Court made it clear that general information on battered woman syndrome had no role to play without the defendant specific information. The court held that the general testimony of an expert about battered woman syndrome ‘was inadmissible, partly because the expert had no personal contact with the defendant and the defendant submitted no evidence that she suffered from the syndrome.’: at 139.

R Schuller ‘Juror’s Decisions in Trials of Battered Women Who Kill’ 1994 24 Journal of Applied Psychology 316, at 317.

For instance, without expert evidence it would be difficult for an ordinary person to understand why, after all the alleged beatings and abuse that the accused in Hennum claimed had been meted

out to her by the deceased (her husband), she would still return to the stove to cook his supper.:

above n235 at 795.

domestic violence, as well as a framework within which to assess the facts of the particular case being heard before the court. 267 The Qualifications of the Expert in Domestic Violence Cases

Case law reflects that the expert witness is always someone with a background and experience in psychiatry or sometimes clinical psychology. Conrad is, however, highly critical of this approach and prefers to describe her expert more broadly. 268 She is of the opinion that the expert should be someone who has either formally trained or has sufficient experience ‘to develop familiarity with the experiences of women who have been battered.’ 269 Buel takes a similar view noting that who one should use as an expert must be assessed on a case by case basis. 270 She refers to the possibility of using a credentialed professional, law enforcement officers, nurses, experienced domestic violence advocates, or ministers and states, ‘[Which discipline professional the] attorney chooses should also depend on what testimony is needed for the specific case.’ 271 The writer supports the approach of Buel (which accords with the South African law) for the reason that it takes a broader approach to the lived realities of the battered MA Dutton ‘Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome’ 1993 21 Hoffstra Law Review 1191, at 1202. Dutton clarifies that in order for an expert to meet this challenge, the court must be informed of four key components

supported by the facts of the case:

1. The cumulative history of violence and abuse experienced by the victim in the relationship in issue;

2. The psychological reactions of the battered woman to the batterer’s violence;

3. The strategies used (or not used) by the battered woman in response to prior violence and abuse, and the consequences of (or the expectations that arise from) those strategies; and 4. The contextual factors that influenced both the battered woman’s strategies for

responding to prior violence, and her psychological reactions to that violence.:

Dutton above n267 at 1202.

Above n237.

Above n237 at 47. This approach is endorsed by the state of Virginia and Lenkevitch notes that in Virginia in order to provide an expert opinion, the witness need not have an academic or professional degree. ‘Anyone who possesses specialized knowledge, obtained through education, professional training, or experience, may testify as an expert.’: Lenkevitch above n2 at 306.

Buel above n22 at 280.

Ibid. Ogle and Jacobs support the use of ‘lay testimony’ to assist the jury understand the battering context in which the act which forms the basis of the charge occurred. They note, more specifically that ‘the law allows lay witnesses to testify to what they have seen in the past, and to what they have heard …; and it may even allow them to offer testimony on the conclusions they drew from these observations.’: Ogle and Jacobs above n16 at 144.

woman rather than focussing only on the pathology of being a victim of domestic violence.


Two issues under the law of self-defence in the U.S.A. must be understood:

firstly, self-defence may be a defence of either justification or excuse; and secondly, in dealing with the conditions of self-defence, the courts agree that the significant question is that of the reasonableness of the conduct and beliefs of the

accused. 272 As Vande Walle J noted in Leidholm:

[T]he decisive issue under our law of self-defense is not whether a person’s beliefs are correct, but rather whether they are reasonable and thereby excused or justified. 273 Thus, each of the conditions of self-defence is evaluated against a standard of reasonableness. In assessing this requirement of reasonableness, the courts have evolved a hybrid standard of subjective factors and objective evaluations which take cognisance of the exigencies of the milieu of the accused, whilst maintaining a norm for objectivity. It is also noted that the different states have their own codes and laws; consequently, it has been difficult to identify a general approach to the requirements of self-defence. The references to the various judgments are thus stated for the principles of legal application that they represent and the interpretations and possible application of the conditions of the law of self-defence.

As Fletcher describes it: ‘American lawyers tend to think of all available legal defenses as analogous, tend to assume that what is permissible is justified, and tend to view right as trumpable claims. At the foundation of these assumptions lies the cement of reasonableness, a concept that enables Americans to blur the distinction between objective and subjective, self-defense and putative self-defense, wrongdoing and responsibility.’: above n13 at 979-80.

Leidholm above n2 at 814.

From the case law it is evident that one of the more contested issues under the law of self-defence has been the interpretation of the requirement of temporal proximity between the attack and defensive conduct. All the courts in the U.S.A.

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