The law and legal practice

What is the "Battered Women's Syndrome"? What are the advantages and disadvantages of admitting expert evidence on the syndrome in cases where a woman has killed an abusive partner? "Battered Women's Syndrome" is identified as the psychological condition that results in women after being subjected to a prolonged pattern of abuse in a domestic context. It involves repeated acts of violence on the part of a male abuser, alternating with phases of kindness and loving behaviour that leave the battered woman in a state of learned helplessness, reinforced by financial dependence, children and feelings of guilt.

1 The term "Battered Women's Syndrome" is used to describe the recurring and escalating cycle of violent behaviour as a process that has a severe psychological impact. 2 Expert evidence of "Battered Women's Syndrome" is used to explain and legitimise the reaction of women toward their abusers when they resort to lethal violence. Expert testimony, traditionally given by psychologists and psychiatrists, is used to explain why women respond differently from traditional expectations in the criminal law and expert evidence of the "syndrome" is used to help battered women comply with the traditional requirements for legal defences to murder.

The law in Australia now allows for women's experiences to be taken into account in cases where a woman has killed an abusive partner. The introduction of expert evidence on "Battered women's Syndrome" can be used to support partial and complete acquittals and is admissible at the trial and sentencing stages. "Battered Women's Syndrome" is not a defence to murder but is used to explain women's behaviour and to bring it within the relevant legal principles. Expert evidence on the syndrome was first held to be admissible in Kontinnen v Runjajic3 as support to a defence of duress.

It was relevant to show how a woman suffering from the syndrome was likely to react and was therefore consistent with the overbearing of the will necessary to the defence. Subsequent cases have led to the use of expert evidence on the syndrome by the defence to negate the elements of voluntariness and intent necessary to the definition of the offence, to mitigate sentences, and to support the defences of duress, self-defence, provocation and diminished responsibility. 4

The concession to expert evidence on the syndrome in cases where a woman has killed an abusive partner has important advantages. Historically the background of abuse was regarded as irrelevant and was inadmissible to the question of whether the woman had acted voluntarily and intentionally and without lawful excuse in cases where women killed their abusers in response to domestic violence. In some cases, a woman's history of abuse was actually used against the woman by the prosecution to help prove a premeditated intent to kill.

Until recently, it was virtually impossible for women to meet the traditional legal requirements needed for provocation and self-defence, often due to the fact that the majority of battered women who kill do so in a violent manner and tend to wait until their abusive partner is quiet or asleep. 5 Prior to the introduction of expert evidence concerning the "Battered Women's Syndrome" there had been no case in which women who had killed as a result of domestic violence had gained a complete acquittal. 6

Expert evidence on "Battered Women's Syndrome" has gained considerable influence as an evidentiary tool since the requirements for provocation and self-defence have been modified by the High Court. The decision in Zecevic v DPP7 provided women who kill in the context of domestic violence with a chance at successfully raising the defence of self-defence before a jury. Self-defence is no longer determined by reference to concepts of imminence, duty to retreat, proportionality, and the lawfulness of the threat, which now remain as only evidentiary factors to be considered, instead the test is:

[W]hether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter then he is entitled to an acquittal. 8 Expert evidence plays a significant role in this context by demonstrating that a woman's perception and reaction was in fact reasonable in response to the circumstances in which she found herself.

Expert evidence on "Battered Women's Syndrome" can now help the defence to successfully raise the partial defence of provocation causing a loss of self-control, especially since the act of killing is no longer required to occur immediately after the provocation. 9 This is illustrated by Chief Justice Gleeson's judgement in Chaay: [T]imes are changing, and people are becoming more aware that a loss of self-control can develop even after a lengthy period of abuse, and without the necessity for a specific triggering incident[…]

This is an area in which psychiatric evidence may assist juries to develop their understanding beyond the commonplace and the familiar. 10 The role of expert evidence on the syndrome in assisting the court and jury to understand the behaviour, beliefs and perceptions of the defendant is significant since the mental state of the abused would otherwise not be appreciated. Controversially, testimony of experts was needed on the subject because habitual and severe domestic violence is "so special and unusual that it is outside common knowledge of ordinary experience".

11 An advantage of expert testimony, delivered by qualified psychologists and psychiatrists, is that it serves to legitimise "Battered Women's Syndrome" as a medical or psychological condition. By giving the woman's situation credibility in the eyes of jurors and judges it helps to dispel the myths and stereotypes inherent in the perception of battered women's experiences. Expert evidence provides an explanation as to why a woman did not leave the abusive relationship and demonstrates that a history of domestic violence is far more critical than mere "matrimonial discord".

12 Expert evidence on the syndrome helps the court and jurors to understand why the defendant believed she had to alternative but to resort to lethal violence. The advantage of such evidence can be perceived as an important step in shifting the focus from the experience and perspective of men as the defining behaviour and mindset in relation to provocation and self-defence. The disadvantages of admitting expert evidence on "Battered Women's Syndrome" are fundamentally based on the fact that they do not challenge the patterns of gender bias that inform the law and legal practice.

13 The perceived advantages that result from expert evidence on the syndrome have all come under challenge in this wider context. One disadvantage of expert evidence on the syndrome is that it focuses on the psychiatric health of the woman and not the circumstances surrounding her actions. 14 The jury is led to believe that a woman's action in killing an abusive partner are excusable not because it was rational necessary and reasonable, but because the woman is mentally ill.

The presentation of women as being temporarily irrational and dysfunctional reinforces notions of women as passive victims and takes the focus away from the abusive partner and the history of abuse. Presenting women as victims in this way can make it difficult for juries and judges to understand their use of lethal self-help, since their failure to leave the abusive partner is perceived as being due to an irrational mental state of fear.

In Runjanjic v Kontinnen15 for example, a woman's failure to leave the abusive partner was due to a "perceived inablilty to escape the situation", not a belief on reasonable grounds that she had no other option. 16 Further disadvantages of expert evidence reinforcing notion of irrationality on the part of the woman were demonstrated in Hickey17. In this case the expert depicted battered women as a certain category of people with an inadequate mental and emotional make-up, suggesting that battered women have a psychological predisposition to dependency and helplessness.

18 Expert evidence on the syndrome is also problematic in that women are judged according to how closely they fit the criteria of the syndrome. Women who do not fit the stereotype of passive, dependant and helpless may experience difficulties in court, since juries find it difficult to identify a woman who kills as acting in a rational and appropriate way. 19 The disadvantages are further exacerbated by the fact that only qualified experts on "Battered Women's Syndrome" are allowed to testify, namely psychiatrists and psychologists.

20 By using expert evidence instead of evidence from the woman herself perpetuates the notion that a woman is not a reliable witness; that her account needs to be "buttressed by that of an expert". 21 It appears that there is room for change on the rule, expert evidence of the battered woman syndrome was given by a criminologist in Winnett v Stephenson22, however, testimony by a psychologist was also given. Evidence from social workers and other possible authorities on "Battered Women's Syndrome" has not yet been tested.

The use of expert evidence on "Battered Women's Syndrome" has clearly had the advantage of providing women with the possibility of partial or full acquittal where there was none before. Expert evidence on the seriousness of the effect of domestic abuse on women allows the court to comprehend why a woman might resort to lethal violence against an abusive partner without condoning self-help as legally acceptable. Despite these advantages, the narrow application of expert evidence on "Battered Women's Syndrome" does little to change male definitions and behavioural practices that limit defences to murder.

Expert evidence diverts attention from the life threatening circumstances of domestic violence by presenting situation as a technical matter that can be explained by reference to scientific knowledge. Expert evidence should not be the only evidence to carry weight in the courtroom; other authorities on women's experiences should be allowed to demonstrate that circumstances of abusive behaviour can cause normal, reasonable women, in fear of their own lives, to kill their abusive partners. Alternatively, women should not be held to the reasonableness standard at all, and a major reform of the law is needed.