Acting in self-defence is a well-known way to beat a murder charge.
It is a complete defence, which means that a person charged with murder will be found not guilty of both murder and manslaughter if self defence is successfully raised.
But over recent decades there have been arguments that the traditional doctrine of self-defence works more in favour of men than women, because men are more likely to kill in the ‘heat of the moment’ rather than when the immediate threat has subsided.
We recently wrote a blog about Jessica Silva, a mother who killed her former partner who had abused her repeatedly throughout their relationship.
She pleaded self-defence, and raised evidence of ‘battered woman syndrome’ (BWS).
She was found not guilty of murder but guilty of manslaughter for stabbing her former partner five-times, causing his to death. The killing was described as ‘excessive self defence’, which means that there were elements of self defence but the actions went too far.
When it came to sentencing, the Judge gave her a ‘suspended sentence’ and allowed her to avoid prison, noting that she exhibited signs of BWS.
What is Battered Woman Syndrome?
BWS is a construct used to explain how repeated domestic violence affects women.
It was coined by psychologist and feminist Lenore Walker who identified three stages that occur in violent domestic relationships:
1. The ‘tension building stage’, where verbal and emotional abuse takes place, as well as possibly a small amount of physical violence.
2. The second stage was characterised as the ‘battering stage’, which is the most violent part of the cycle, and
3. A period of ‘loving contrition’, before step one begins and sets the cycle in motion again.
Women suffering from BWS exhibit characteristics such as ‘learned helplessness’, where a woman is conditioned to become unable to defend herself. Other characteristics include dependence, victimisation and low self-esteem.
BWS in Court
BWS has gained unprecedented popularity and legitimacy in the legal sphere, which is unusual for psychological theories of its kind. It has been accepted in Australian courts for the last two and a half decades.
The classic scenario is self-defence to a murder charge, but this is not the only situation where BWS can apply. It has also been used to show duress, provocation and excessive-self defence. It can also be used to help fight assault charges.
Traditional self-defence, it was argued, favoured men who act spontaneously, rather than women who are more likely to kill their abusers in a pre-emptive manner. And under legal definitions of self defence contained in various State, Territory and Commonweath statutes, the danger from which a person is defending themselves needs to be imminent or immediate.
But for many women in abusive relationships, fighting back against a violent and physically stronger partner is not an option – which is why they might resort to a ‘pre-emptive strike,’ such as attacking their partner when sleeping or in an otherwise docile state.
Even a seemingly ‘minor’ event could be the ‘straw that breaks the camel’s back’, triggering an extreme reaction in a battered woman, such as a violent attack.
But can a sleeping person ever be capable of constituting a threat necessary to raise self defence?
In the Northern Territory case of Secretary v The Queen, the trial judge did not think so.
The deceased man in that case had repeatedly assaulted his female partner for eight years. On the way back from a trip, he had taken amphetamines, driven dangerously, and assaulted and threatened to kill her. When they got back home, he said he would have a nap and then assault her again. While he was asleep, the defendant shot and killed him.
At court, the trial judge directed the jury not to consider the question of self defence because the threat could not have been imminent. But the Court of Criminal Appeal found that the trial judge should not have made that direction, because there was a possibility in those specific circumstances that the threat might have been immediate, and that the question should have been left up to the jury.
A new trial was ordered and the prosecution reduced the charge to manslaughter.
What are the problems with BWS?
Many have praised the progress that BWS has made in acknowledging situations where traditional interpretations of self-defence may not be able to assist a deserving defendant.
BWS = an excuse to murder?
However, BWS has also received a fair amount of disapproval. The classic criticism is that BWS should never amount to a defence, whether a partial defence (eg reducing murder to manslaughter) or full defence (a complete acquittal), because the person affected can always leave the relationship, or call police, or otherwise flee the situation.
Proponents of that view assert that BWS is an artificial construction that describes mitigating circumstances (ie things that make the act less serious) rather than avoids liability. They say that evidence of domestic violence can and should be used at the sentencing stage to reduce a person’s penalty, but should never be used to reduce their liability eg to reduce a charge from murder to manslaughter. They say that the law should not allow for a person who is asleep or sitting in front of the television to be killed, regardless of what they did in the past.
BWS – a white, middle-class construct?
Others have criticised BWS on the basis that the three-stage cycle pointed-out by Walker does not always apply. They say that the identifiers described by Walker do not encompass every situation of domestic violence – which raises concerns about what happens to those that don’t fit into the narrative.
Even the name ‘battered woman syndrome’ has been the subject of criticism, with the term ‘battered person’ being suggested as an alternative. This is because males can also be the subject of sustained domestic violence, and may also be driven to kill their abuser. The construct also fails to neatly translate to same-sex couples. And as the original theory was based on a study of middle-class white women, some have also questioned the applicability of the construct to other social and ethnic groups.
BWS – a help or a hindrance?
Some have even argued that characterising BWS as a medical condition (ie a ‘syndrome’) can work against a defendant in a criminal trial because the criteria necessary for successfully raising self defence includes an element of “reasonableness”. They argue that highlighting the symptoms of BWS – which include changes in attitude and behaviour patterns, altered perception etc – could reduce the chance of a sufferer’s actions being seen by a jury as reasonable.
For that reason, and depending on the specific set of factual circumstances, it can be preferable in some cases not to raise BWS at all.
In R v Gadd, a defendant was acquitted of murder after she stabbed her husband to death. The jury in that case did not hear evidence that would normally be associated BWS, such as learned helplessness and the cycle of violence. In fact, they did not even hear from a psychiatrist or psychologist. Instead, her criminal defence lawyers used her social worker to confirm incidents of abuse; which turned out to be a winning strategy.
Time to move forward?
BWS has historically been significant and instrumental in introducing evidence about how domestic violence can trigger violent acts. But given the problems with the construct, and the fact that self-defence may be established without using it, is it time to move on?
In the US, ‘social framework evidence’ is now used – a much broader way to introduce evidence about battering, abuse and the effects. Perhaps this approach would avoid the pitfalls associated with BWS, making it fairer and more accessible to defendants who do not otherwise fit into the narrow definition of BWS, while avoiding some of the legal pitfalls.