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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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Caroline Forell and Donna Matthews explained, [I]n many ways the law still equates husband-killing with treason: such killing is presumed unreasonable, and the woman is seen as morally responsible for the man’s violence against her. The law of self-defense is framed in terms of how men ‘reasonably’ respond to the violence of other men; women killing men isn’t part of the picture. The basic terms are skewed so that women who kill their batters rarely fit the male-defined standard of a justifiable killing.30 Cynthia Gillespie further detailed, “A woman who defends herself against a man’s violence is either a criminal or crazy; our society is very reluctant to say that she is ever justified.”31 The criminal law—specifically the law of self-defense—was not adequately taking into account the Schneider, Equal Rights to Trial for Women, supra note 25, at 631.

Id.

FORELL & MATTHEWS, supra note 8, at 197.

GILLESPIE, supra note 1, at 12-13. Professor Schneider similarly wrote, “Historically, views of women as being unreasonable, sex-bias in the law of self-defense, and myths and misconceptions concerning battered women have operated to prevent battered women from presenting acts of homicide or assault committed against batterers as reasonable self-defense.” Schneider, Describing and Changing, supra note 2, at 198.

experiences of battered women.

This deficiency was and is alarming, given that the “overwhelming number of cases in which courts have addressed issues of women’s self-defense have involved battered women charged with killing men who battered them.”32 To help remedy this situation, the women’s selfdefense movement introduced the concept of Battered Woman Syndrome (“BWS”) in the 1970s.33 BWS, developed in large part by Dr. Lenore Walker,34 is “a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.”35 Professor Schneider

explains:

Expert testimony on battered woman syndrome was developed to explain the common experiences of, and the impact of repeated abuse on, battered women.

The goal was to assist the jury and the court in fairly evaluating the reasonableness of the battered women’s action and to redress this historical imbalance, at least where the testimony was proffered as relevant to selfdefense.36 BWS was thus introduced to help explain the reasonableness of a battered woman’s self-defense actions.

The introduction of BWS was intended to “overcome sex-bias in the law of self-defense and to equalize treatment of women in the courts.”37 This sex-bias in the law of self-defense is evident in the normal formulation of reasonableness that asks what the reasonable man would do.38 In other words, “Jurors in self-defense cases are usually told to assess the reasonableness of the defendant’s act by asking themselves whether what he or she did was the sort of thing that Schneider, Describing and Changing, supra note 2, at 196.

Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. PA. L. REV. 379, 421 n.126 (1991), in DEFENDING BATTERED WOMEN IN CRIMINAL CASES, supra note 2.

Schneider, Describing and Changing, supra note 2, at 207.

State v. Kelly, 478 A.2d 364, 371 (N.J. 1984).

Schneider, Describing and Changing, supra note 2, at 198.

Id. at 197.

Schneider, Equal Rights to Trial for Women, supra note 25, at 635.

would have been done by a reasonable man in the same circumstances.”39 Gillespie explains:

The ultimate question in a self-defense case is whether the defendant’s act was a reasonable one. Even if she can successfully negotiate the legal hurdles of seriousness, imminence, retreat, and the like, she must still convince the jury of two things: that her belief that she was in imminent danger of death or serious injury was reasonable under the circumstances and that her response to that perceived danger was a reasonable one, not an overreaction.40 Self-defense law asks what a reasonable man would have done in a battered woman’s situation, and this question has proven inapposite to the reality faced by battered women.

It was thus recognized that the “reasonable man” standard could not explain the justified self-defense actions of a battered woman. Even application of a “reasonable woman” standard is not entirely helpful, because the reasonable woman would still be viewed as the stereotypical, passive female, who must submit to her man’s violence without complaint.41 Therefore, lawyers defending battered women who had killed needed a way “to explain to the jury that the woman’s behavior, which seems to defy common sense, was entirely characteristic of women in her situation.”42 The way this could be done was through the testimony of an expert witness.43 This testimony is permissible because the environment in which a battered woman lives is “beyond the ken of the average layman,”44 and “[t]he reasonableness of the woman’s fear and the reasonableness of her act are not issues which the jury knows as well as anyone else.”45 The expert therefore is able to provide to the jury information about “otherwise puzzling aspects of GILLESPIE, supra note 1, at 98.

Id. at 93.

See Schneider, Describing and Changing, supra note 2, at 201 (“A woman who kills her husband is viewed as inherently unreasonable because she is violating the norm of appropriate behavior for women.”).





GILLESPIE, supra note 1, at 158.

Id.

Ibn-Tamas v. United States, 407 A.2d 626, 635 (D.C. 1979); see also GILLESPIE, supra note 1, at 93 (““However, the requirement that the jury must find the defendant’s action reasonable before it can acquit her presents another major source of problems from women in self-defense case. The jurors are uninvited—indeed obligated—to substitute their judgment for hers in a situation that most of them can barely imagine being in and seldom understand.”).

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

defendant’s behavior—especially her failure to leave or get help or tell anyone,”46 and about how “the battered woman’s prediction of the likely extent and imminence of violence is particularly acute and accurate.”47

–  –  –

Critics of this expert testimony have expressed concern about the implications of calling an expert to translate a battered woman’s experience to a jury. Professor Schneider points out, “The notion of expert testimony was predicated on an assumption that battered women’s voices would not be understood or were not strong enough to be heard alone in the courtroom.”48 She further wrote that “[this] is disturbing, for it suggests that only experts can bridge the gap between the individual and collective experience of women and counsel jurors and society that an individual woman’s experience has a social validity and commonality that might be reasonable.”49 At the same time, however, Professor Schneider recognized that this testimony was necessary, to add authority to the battered woman’s claim that her actions were reasonably necessary, because this claim “threatens deeply held stereotypes of appropriately submissive female conduct and of patriarchal authority.”50 In response, supporters of BWS argue that patriarchal values and gender-stereotyping that belie the general public’s understanding of domestic violence must be dispelled through expert testimony. The neutral, third-party expert is able to point to a larger truth about the common experiences of battered women, which adds credibility to the victim-defendant’s claim. As one court noted, the expert testimony is necessary to combat “stereotypes and myths concerning the GILLESPIE, supra note 1, at 159.

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

Id. at 198.

Id. at 218.

Id. at 202.

characteristics of battered women and their reasons for staying in battering relationships.”51 There is some question, however, whether testimony about BWS serves to dispel gender stereotypes or cultivate them. The “clinicalization” of the battered woman’s experiences as a syndrome implicitly suggests that a battered woman’s “response to violence is negative behavior that stems from weakness or emotional damage and requires explanation in clinical terms.”52 The expert is typically called to answer questions like “why didn’t she just leave?”, which assumes that the woman is the one who is misbehaving by not leaving, that leaving is “the normal and reasonable response to being battered” and “if a woman fails to leave, her staying with her mate is peculiar behavior that requires explanation or excuse.”53 Lawyers argue and courts admit this testimony when it focuses on a woman’s victimization, incapacity, or “learned helplessness,” but when battered women do not fit this narrow model of a passive, victimized female, they are oftentimes not permitted to introduce expert testimony on BWS.54 As explained by Professor Schneider, “Courts appear to be willing to recognize the importance of expert testimony when the rationale for admission is women’s individual and collective psychological ‘weakness.’ ”55 In the words of Professor Anne Coughlin, BWS “reclaims for women all of the insults of the gender ideology of domesticity while endorsing none of its compliments.”56 Even though expert testimony is supposed to “shed light on the reasonableness of the defendant’s behavior,”57 the term “battered woman syndrome” instead tends to “conjure up images of a psychological defense—a separate defense and/or an impaired mental state State v. Kelly, 478 A.2d 364, 370 (N.J. 1984); see also Maguigan, supra note 33, at 458 (“The expert testimony should be admitted to explain the effects of a history of abuse on a defendant’s behavior and perceptions and to rebut popular myths and misconceptions about battered women.”).

GILLESPIE, supra note 1, at 156.

Id. at 146.

FORELL & MATTHEWS, supra note 8, at 204; Schneider, Describing and Changing, supra note 2, at 198-200 Id. at 211.

Anne M. Coughlin, Excusing Women, 82 CALIF. L. REV. 1, 87 (1994).

GILLESPIE, supra note 1, at 159.

defense.”58 Professor Coughlin has been particularly critical of BWS, arguing, “The [battered woman syndrome] defense itself defines the woman as a collection of mental symptoms, motivational deficits, and behavioral abnormalities; indeed, the fundamental premise of the defense is that women lack the psychological capacity to choose lawful means to extricate themselves from abusive mates.”59 In this way, BWS “revives concepts of excuse.”60 Applying excuse theory to a battered woman’s act of self-defense reinforces the idea that domestic violence is a private, personal problem. This sex-bias “increases the probability that the trier of fact will prefer to excuse the woman, seeing her act as ‘unreasonable’ self-defense.”61 So long as the battered woman’s self-defense claim is supported by testimony of her “syndrome,” the danger of the fact-finder falling back on old stereotypes of female incapacity to excuse the victim-defendant’s conduct remains.62 Despite its shortcomings, BWS remains the only viable alternative for women wishing to prevent evidence of the general effects of battery at their trial.63 Professor Myrna Raeder Schneider, Describing and Changing, supra note 2, at 199; see also FORELL & MATTHEWS, supra note 8, at 203Coughlin, supra note 56, at 7.

Schneider, Describing and Changing, supra note 2, at 215.

Schneider, Equal Rights to Trial for Women, supra note 25, at 638.

Professor Mahoney observes:

[A] profound irony marks this expert testimony: Domestic violence is beyond the layman's ken (even though we know it is fairly common) because some jurors will interpret their own experience through cultural perceptions that distort understanding and make it difficult for all of us to talk about the subject, and because cultural stereotypes will shape the vision of battered women held by jurors who have no personal experience of such violence as well. Expert testimony, designed to overcome these stereotypes and help show the context for the woman's actions, has through the pressures of the legal system contributed to a focus on victimization that is understood as passivity or even pathology on the part of the woman. This image further promotes many cultural stereotypes, and may contribute to further stigmatizing of battered women and further denial by women of the dangers they face through domestic violence. In a particular legal action, an individual battered woman's experience is at least partly explained, but the cultural perceptions that limit broader social understanding may remain untouched, and go on to shape legal action again.

Mahoney, supra note 7, at 42.

Myrna S. Raeder, Proving the Case: Battered Woman and Batterer Syndrome: The Double-Edged Sword:

Admissibility of Battered Woman Syndrome By and Against Batterers in Cases Implicating Domestic Violence, 67 U. COLO. L. REV. 789, 790, 802 (1996).

explains, “[T]he practical consequence of BWS is to provide an imperfect solution that at a minimum supports a claim of imperfect self-defense.”64 Professor Mahoney also remarks, “I would not choose to discard such a major tool [BWS] in the effort to explain women's experience in court, just because it has proved vulnerable to distortion in culture and law—we need more, not less, explanation.”65 It is the only judicially recognized method of providing this explanation, and therefore, absent dramatic changes to the law, reform must come from within the testimony on BWS itself.

–  –  –

The concept of BWS is essentially a paradox. The word “syndrome” necessarily implies some sort of disorder, and is commonly used by psychologists to describe a mental illness.66 Using testimony about a “syndrome” to explain what a reasonable person would do is a contradiction in terms—it is a legal fiction that the legal community has developed to allow experts to testify in trials of battered women. This allows us to prevent the unjust result of sending a victim to jail for acting out of necessity, but doesn’t require us to change the actual substantive self-defense laws.



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