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«Mary Helen Wimberly Battered Woman Syndrome was developed in the mid-1970s to help combat the sex-bias present in the criminal law, particularly in ...»

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Defending Victims of Domestic Violence Who Kill Their Batterers: Using the Trial Expert

to Change Social Norms

Mary Helen Wimberly

Battered Woman Syndrome was developed in the mid-1970s to help combat the sex-bias present

in the criminal law, particularly in the law of self-defense. Prior to this time, the law did not

recognize the reasonableness of a battered woman’s use of force when she killed her batterer.

Scholars therefore developed Battered Woman Syndrome as a way to explain the experiences of a battered woman, and why her actions in self-defense were justified. As Battered Woman Syndrome was used in more and more trials, however, expert testimony began to take the form of excuse, rather than justification. A battered woman was excused from her conduct because of her irrationality or incapacity. This prompted many critics to call for an end to expert testimony on Battered Woman Syndrome. In response to these critics, this Paper offers another solution; one that allows lawyers and experts to work within the current legal system to change societal perceptions of domestic violence and battered women who kill. This Paper suggests that refocusing the expert’s testimony on the social norms that tolerate domestic violence, and identifying these norms as the true “syndrome,” will enable experts to educate a jury about domestic violence, without labeling the victim with a pathology.

I. INTRODUCTION

II. BACKGROUND

A. Criminalization and the Law of Self-Defense

B. Expert Testimony and Battered Woman Syndrome

1. Origins

2. Controversy over Battered Woman Syndrome

III. OFFERING A SOLUTION THAT REFOCUSES EXPERT TESTIMONY

A. The Battered Woman Syndrome Paradox

B. Making Domestic Violence an Issue of Public Concern

C. Including Empirical Data in Expert Testimony

D. Using Experts to Change Social Norms

IV. CONCLUSION

It is a necessary evil that the women’s self-defense movement has been forced to accept.

At worst, it can reinforce stereotypes of gender roles and the view of women as emotional, irrational creatures. At best, it can educate others about the prevalence of domestic violence in our society, and also expose the societal biases and stereotypes that feed into this violent epidemic. It is a legal fiction that utilizes expert testimony to prove that a woman’s actions in self-defense were “reasonable.” It is battered woman syndrome.

Battered woman syndrome was introduced to help explain the reasonableness of a woman’s actions in self-defense against her abuser.1 It was pioneered by Dr. Lenore Walker, and was developed to allow experts to testify at trials, most commonly where a woman was on trial for killing her batterer, and was alleging self defense.2 The expert explains why a battered woman had special knowledge of the imminence of an attack, as well as why retreat was not a reasonable alternative.3 In other words, the expert explained the reasonableness of the woman’s actions in a situation in which most jurors would probably not be familiar.4 This practice of using expert testimony in criminal trials to explain the reasonableness of a victim-defendant’s actions against her abuser has been a hotly contested area of criminal law.5 Some scholars praise it as a way of dispelling the myths that surround battered women,6 while CYNTHIA K. GILLESPIE, JUSTIFIABLE HOMICIDE: BATTERED WOMAN, SELF-DEFENSE, AND THE LAW 159 (1989).

See Elizabeth M. Schneider, Describing and Changing: Women’s Self-Defense Work and the Problem of Expert Testimony on Battering, 9 WOMEN’S RIGHTS LAW REPORTER 195 (207) (1986), in AMERICAN BAR ASSOCIATION, DEFENDING BATTERED WOMEN IN CRIMINAL CASES (1992) (“Virtually all of the cases that have considered the issue of expert testimony have done so in the context of testimony on battered woman syndrome and they have focused on Dr. Lenore Walker’s work in her book The Battered Woman.”). For a brief explanation of Walker’s basic theory, see GILLESPIE, supra note 1, at 129.

GILLESPIE, supra note 1, at 93.

Schneider, Describing and Changing, supra note 2, at 211.

See GILLESPIE, supra note 1, at 160.

See, e.g., Schneider, Describing and Changing, supra note 2, at 198.

others decry it as a perpetuation of stereotypes of women as irrational, unreasonable victims.7 Certainly the label of “syndrome” has fueled the critic’s arguments, and has carried with it the stigma of psychological disorder.8 The word “syndrome” carries with it negative connotations, and there is a tendency for members of the legal community and society at large to interpret battered woman syndrome as some sort of incapacity defense.9 Despite these faults, the ability to present expert testimony at trial for a battered woman who has killed her abuser in self-defense is valuable. It has the potential to educate members of the community on the societal norms and pressures that create the environment that tolerates domestic violence.

This Paper will argue that the benefits of continuing to recognize battered woman syndrome outweigh its harms. However, the focus of expert testimony should change from emphasis on the personal syndrome to emphasis on the larger societal syndrome that has placed the battered woman in a situation where her only option was to kill her batterer. The necessity of her actions was caused by the community, and experts should point to the failures of society and the government at large to offer battered women reasonable alternatives. This goes to the heart of the theory of self-defense as one of necessity,10 and shows that the battered woman’s actions should not be “excused” because of any personal ailment or shortcoming, but should be recognized as justified because of the situation in which she was placed.





To support this argument, Part II of this Paper will briefly discuss the theoretical background of the criminal justice system and the law of self-defense. This discussion will show Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 4 (1991); Schneider, Describing and Changing, supra note 2, at 199-200.

CAROLINE A. FORELL & DONNA M. MATTHEWS, A LAW OF HER OWN: THE REASONABLE WOMAN AS A MEASURE

OF MAN 203 (2000).

Id.

For a discussion of the relationship between common-law necessity and justification defenses, such as selfdefense, see RICHARD J. BONNIE, ANNE M. COUGHLIN, JOHN C. JEFFRIES, JR. & PETER W. LOW, CRIMINAL LAW 410d ed. 2004).

that the criminal system was founded on moralistic and normative concepts, which are subject to change and manipulation over time. Part II will then explain the origins and uses of battered woman syndrome, and identify some of the principle arguments in support and against its continued use. Having set up this legal background, Part III of this Paper will suggest that expert testimony regarding battered woman syndrome is essential to help change society’s general assumptions about gender roles and the causes of domestic violence. The language of trial experts should emphasize the societal pressures that place women in inescapable violent relationships, rather than emphasizing the helplessness or particular psychological profile of the individual defendant. While their immediate goal should remain to explain the reasonableness of a particular defendant’s actions, their larger goal should be to help change the social norms that underlie the criminal law’s definitions of reasonableness and self-defense.

–  –  –

The criminal justice system is an articulation of the basic moral code of our society. In the words of Justice White, the law is “constantly based on notions of morality....”11 As such, the conduct that we punish and the conduct that we excuse is an expression of our moral understanding of right and wrong.12 The morals that guide the criminal law also give the law a normative function. As Professor Paul H. Robinson has argued, the criminal justice system relies on normative pressures to control crime.13 He explained that the “ ‘normative’ crime control mechanism... works through unofficial avenues to bring the potential offender to see the Bowers v. Hardwick, 478 U.S. 186, 196 (1986), overruled on other grounds by Lawrence v. Texas, 539 U.S. 558 (2003).

See Francis Bowes Sayre, Mens Rea, 45 HARV. L. REV. 974, 988 (1932) (“It is... underlying ethical concepts which shape and give direction to the growth of criminal law.”).

Paul H. Robinson, The Legal Construction of Norms: Why Does the Criminal Law Care What the Layperson Thinks Is Just? Coercive Versus Normative Crime Control, 86 VA. L. REV. 1839, 1839-41 (2000) (“criminal law’s power to influence conduct may reside in large part in its normative rather than its coercive crime control mechanisms”).

prohibited conduct as unattractive because it is inconsistent with the norms of family or friends and, even better, with the person's own internalized sense of what is acceptable.”14 Robinson recognizes that the moralistic and normative aspects of the law are intertwined, in that “[e]ffective normative crime control requires a criminal law that has moral credibility within the community it governs.”15 This moralistic-normative theory of the law explains “[p]eople come to hold the moral standards of the cultures in which they are raised; internal moral standards and external norms generally label the same actions as right or as wrong.”16 Thus, the combination of internal morals and external norms shape and give substance to our laws.

The American criminal justice system has naturally developed laws based on generally shared norms. The substance of these laws was greatly clarified and specified in the “criminal codification movement of the 1960s and 70s” that was guided by the publication of the Model Penal Code by the American Law Institute in 1962.17 Within twenty years of its publication, “new legislation in 37 American jurisdictions had been substantially influenced by the Model Penal Code.”18 The Model Penal Code (“The Code”), though not adopted by all jurisdictions, provides generally applicable criminal law standards that have influenced the laws of most states.

The moralistic and normative overtones in The Code are easily identifiable. The code lists as one of its purposes “to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.”19 Another purpose is “to safeguard conduct that is without fault from condemnation as criminal.”20 In this context, The Code defines what conduct should be criminalized, and what conduct should not.

Id. at 1840.

Id. at 1841.

Id. at 1862.

Id. at 1839.

BONNIE ET AL., supra note 10, at app. A-2.

MODEL PENAL CODE § 1.02(1)(a) (1962).

Id. § 1.02(1)(c).

For example, taking of the life of another person is usually considered a crime; however, in certain situations, this act may be justified. The Code recognizes one such justified use of force through its recognition of the affirmative defense of “Use of Force in Self-Protection.”21 Under this definition, “the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”22 Deadly force is only permitted when “the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat.”23 Nor is it justifiable when “the actor knows that he can avoid the necessity of using such force with complete safety by retreating.”24 As stated above, this law recognizes that the use of force in self-defense may be justified.

In other words, the use of force was “correct and appropriate, not only tolerated by the law not encouraged.”25 As explained by Professor Elizabeth M. Schneider, “Inquiries about justification focus on the act rather than on the actor.”26 This is distinct from an otherwise criminal act that is excused by the law. Thus, “A finding of justification is a finding that the act was right because of the circumstances of the act. By contrast, an excusable act is one that, although wrong, should be tolerated because of the actor’s characteristics.”27 Because the law views self-defense as justifiable action, the law also demands that this Id. § 3.04.

Id. § 3.04(1).

Id. § 3.04(2)(b).

Id. For another definition of the justified use of force, utilized in approximately eleven jurisdictions, BONNIE ET AL., supra note 18, at 411, see NEW YORK PENAL LAW § 35.05 (Consol. 2006).

Elizabeth M. Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense, 15 HARV. C.R.C.L. L. REV. 623, 630-31 (1980), in DEFENDING BATTERED WOMEN IN CRIMINAL CASES, supra note 2.

Id. at 631.

Id.; see also BONNIE ET AL., supra note 10, at 403 (“The law also includes doctrines of excuse. These defenses recognize claims that particular individuals cannot fairly be blamed for admittedly wrongful conduct. The defendant is excused not because his or her conduct was socially desirable, but because the circumstances of the offense evoke the societal judgment that criminal conviction and punishment would be morally inappropriate.”).

action be reasonable; thus, the circumstances of an act of self-defense must justify the act.

Professor Schneider explains, “An act committed in self-defense was justified given the individual actor. The trier of fact must understand the circumstances of the act and identify with the actor. In examining the circumstances of the act, the fact finder applies substantive rules that reflect a standard of reasonableness.”28 However, as Professor Schneider contiues, “If the circumstances of the act claimed to be in self-defense do not justify the act, the jury shifts its focus to excuse and examines the defendant’s mental or emotional state. The law looks at excuses only after justification fails.”29 Thus, the particular characteristics of a defendant are looked at only after a jury determines that a defendant’s self-defense claim is unreasonable.

–  –  –

Out of this conceptualization of justification, excuse, and self-defense law came the problem of women who had been in abusive intimate relationships, and had killed their batterers.



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