«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 ...»
influences conduct is by shaping the development of shared norms, thereby harnessing the
powerful social forces of normative behavior control.”84 He further explained:
Criminal law, in particular, can influence the norms that are held by the social group and that are internalized by the individual. Criminal law’s influence comes from its operation as a societal mechanism through which the force of social norms is realized and by which the force of internal moral principles is strengthened. That is, the law has little independent force, in the way that social group norms and internalized norms do. It has power to the extent that it can amplify, sustain, and shape these two power sources, and it has power to the extent that it influences what the social group thinks and what its members internalize.85 Therefore, according to Robinson, “every adjudication offers an opportunity to either confirm the exact nature of the norm or to signal a shift or refinement of it.”86 Experts, on a case-by-case basis, can work to shift and refine social norms. Testimony on the frequency of battered woman syndrome can demonstrate that domestic violence is a public, rather than a private, problem. Evidence about the unresponsiveness of law enforcement, the skepticism of judges, and the social pressures that keep women in battering relationships can reveal the community-wide syndrome that allows for the perpetuation of domestic violence.
These pressures drive women to privatize domestic violence, and force them to take matters in their own hands in order to defend their lives. Expert testimony can not only reveal that these acts of self-defense are entirely reasonable, but can also awaken in jurors and judges a sense of social injustice, and a need to become more publicly aware of domestic violence.
Expert testimony of BWS is one of the most highly contested aspects of criminal selfdefense law. BWS was developed to dispel myths about the battered woman, and to help eliminate sex-bias in the criminal law. However, BWS has been, more often than not, used to Robinson, supra note 13, at 1866.
Id. at 1863-64.
Id. at 1867.
reinforce stereotypes of women as helpless victims, who were driven to temporary insanity when they killed their batterers. It has become a reformulation of excuse defenses, and has abandoned its roots in the reasonableness inquiry of a claim of self-defense. BWS should instead be used to explain the context of a woman’s actions: a context that is not generally understood by the majority of the population.
This Paper does not suggest that courts should no longer permit expert testimony on BWS. It has proven to be an effective tool to educate members of the community about domestic violence. Julie Blackman explained that verdicts finding battered women who killed not guilty reflect “the jurors’ willingness to be educated about the potential impact of the shortage of alternatives available to battered women in our society.”87 Further, BWS fits into current evidentiary law. Perhaps its name should change to eliminate the word “syndrome,” but the general mechanism by which expert testimony is introduced at the trial of a battered woman should not change.
Instead, the focus of the expert testimony should change. Experts should downplay a discussion of the woman’s specific “syndrome,” and emphasize the societal factors that allow men to batter women, and necessitate a woman’s action of self-defense. In this way, BWS in fact returns to the proper necessity inquiry that underlies a woman’s claim of justified self-defense.
This is both a more logical approach to the reasonableness analysis, and an approach that shifts the focus from the pathology of the woman to the pathology of society and the men that batter.
Thus, expert testimony, under the rubric of “battered woman syndrome,” can slowly help change the social norms that tolerate domestic violence and demand that a battered woman accept the violence in silence.