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Battered woman syndrome and defences to homicide: where now?

Published online by Cambridge University Press:  02 January 2018

Celia Wells
Celia Wells*
Affiliation:
Cardiff Law School
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Extract

For many women, the abuse of power in the form of physical and emotional battering by their so-called ‘partners’ is a fact of life. Individual women feel the pain, the humiliation, the fear and the anger. But the debate about how legally we should respond to a woman who finally kills her abuser is significant beyond the individual. Whatever the predicament of women such as Sara Thornton, or Kiranjit Ahluwalia, sentenced to life imprisonment and forced to scale seemingly impossible obstacles in the appeal process, the exponential rise in literature on this subject is quite disproportionate to the number and increase (if any) in such cases. The real significance of the ‘self-defence for battered women’ movement lies less in these concrete examples and more in its metaphorical role as witness to the social reality of the abuse of women.

Type
Research Article
Information
Legal Studies , Volume 14 , Issue 2 , July 1994 , pp. 266 - 276
Copyright
Copyright © Society of Legal Scholars 1994

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References

1 In most years, three or four women are found guilty of murder following domestic killing, and about 16 of manslaughter. For contemporary trans-national statistics, see Daly, Mary and Wilson Homicide, Aldine de TM Gruyter (1988).

2 32 men and 46 women were acquitted. Criminal Statistics 1992 (HMSO 1993, Table 4A).

3 Alison Wallace Homicide: The Social Reality Research Study No 5, (NSW Attorney General's Department, 1986); Ewing gives similar figures for the US in ‘Psychological Self-Defence: A Proposed Justification for Battered Women’ (1990) 14 Law and Behaviour 579.

4 And the case is usually already known to the police.

5 Certainly Thornton [1992] 1 All ER 306, Ahluwalia [1992]4 All ER 889 and Prosser (1979, see Horder, p 151, n 40) all conformed to this paradigmatic initial reaction. When police arrived to find she had stabbed her former husband through the heart, Prosser said ‘I hope he is dead and you can take him to the morgue. I'm glad I did it. I hope I can get some peace now.’

6 It is more commonly used in USA, see Sheehy, Stubbs and Tolmie ‘Defending Battered Women on Trial: The Battered Women Syndrome and its Limitations’ (1992) Crim Law Jnl 369. See Wells ‘Domestic Violence and Self-Defence’ (1990) 140 New Law Journal 127.

7 This is the mens rea for murder, see Moloney [1986] AC 905.

8 Homicide Act 1957. s 3 states: ‘Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a resonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.’

9 Homicide Act 1957, s 2.

10 See Bandalli ‘Provocation from the Home Office’ [1992] Crim LR 716.

11 Mackay ‘Pleading Provocation and Diminished Responsibility Together’ [1988] Criminal Law Review 411.

12 Criminal Statistics 1992, op cit n 2. Presumably ‘other’ includes denial of involvement while ‘unknown’ could be either self-defence or denial.

13 These numbers are extrapolated from the percentages given in the table, and thus may be slightly inaccurate.

14 Before parole.

15 Criminal Statistics 1992, Supplementary Tables (Vol 2, HMSO 1993, Table 2.1 (A)).

16 Edwards and Halpern ‘Protection for the Victim of Domestic Violence: Time for Radical Revision?’ (1991) 2 Journal of Social Welfare and Family Law 94.

17 Ibid.

18 Hall, Guardian, March 1993.

19 Taylor (1987) 9 Cr App R (S) 175.

20 Horder ‘Sex Violence and Sentencing’ [1989] Crim LR 546.

21 Evidence from the US suggests that female homicide defendants receive harsher sentences, A Browne When Battered Women Kill (The Free Press, 1987).

22 The Battered Woman Syndrome (Springer, 1984).

23 Walker The Bartered Woman (Harper and Row, 1979) p xv.

24 Turner [1975] QB 834

25 The terms of the debate between Ewing and Morse testifies well to this, see Ewing, op cit n 3 and Morse ‘The Misbegotten Marriage of Soft Psychology and Bad Law’ (1990) 14 Law and Human Behaviour 595.

26 Carol Smart Feminism and the Power of Law (Routledge, 1989); and see O'Donovan ‘Defences for Battered Women Who Kill’ (1991) 18 Journal of Law and Society 219.

27 [1992] 4 All ER 889.

28 [1992] 1 All ER 306.

29 We should be wary of assuming that the real story comes out on the legal account of the facts, see Nadel Sara Thornton: The Story of a Woman Who Killed (Gollancz, 1993).

30 Unusually a retrial was ordered, which suggests the court was reluctant to allow this to be seen as a green light for too many appeals. The Crown accepted her plea to section 2 manslaughter and she was sentenced to 30 months imprisonment, which allowed her immediate release.

31 [1992] 4 All ER 889 at 898, per Taylor LJ.

32 Op cit, n 5. Also see Richens [1993] Crim LR: judge's direction which implied that for provocation the defendant must have involved ‘complete loss of self-control to the extent that you do not know what you are doing’ was a misdirection.

33 45 per cent of respondents identified these as source of conflict, Dobash and Dobash, Women, Violence and Social Change (Routledge, 1992).

34 See Wells, op cit n 6.

35 Williams (1983) 78 Cr App R 276; see generally Ashworth Principles of Criminal Law (Clarendon, 1991) pp 110 et seq.

36 Dressler ‘New Thoughts about the Concept of Justification in the Criminal Law: a Critique of Fletcher's Thinking and Rethinking’ [1984] 32 University of California, LA Law Review 61.

37 Ewing, op cit n 3; Talbot ‘Is Psychological Self-Defence A Solution to the Problem of Defending Battered Women Who Kill?’ (1988) 45 Washington and Lee Law Review 1527.

38 See Helga Kuhse The Sanctity of life Doctrine in Medicine (Clarendon, 1987).

39 O'Donovan ‘Law's Knowledge: the Judge, the Expert, the Battered Woman, and Her Syndrome’ (1993) 20 Journal of Law and Society 427.

40 [1990] 1 SCR 852; see Boyle ‘The Battered Wife Syndrome and Self-Defence: Lavalee v R’ [1990] 9 Canadian Jnl of Fam Law 171 and Caste1 ‘Discerning Justice for Battered Women Who Kill’ (1990) 48 University of Toronto Faculty of Law Review 229.

41 O'Donovan 1993, op cit n 39, p 430.

42 Experience from the US, where BWS is commonly used in self-defence claims, supports this with prosecution and defence arguments revolving more around what kind of woman she is rather than on what she did, see Jenkins and Davidson ‘Battered Women in the Criminal Justice System: An Analysis of Gender Stereotypes’ (1990) 8 Behavioural Sciences and the Law 161, p 161.

43 Sheehy, Stubbs and Tolmie, op cit n 6.

44 As proposed by the pressure group, ‘Rights of Women in 1992’.

45 See D. Tannen You Just Don't Understand (Virago, 1992).

46 See C. Gilligan In a Different Voice (Harvard University Press, 1982).

47 The overwhelming majority, over 90 per cent, of domestic homicides are charged initially as murder, Bandalli, op cit n 10, p 717.

48 Davis ‘Battered Women: Implications for Social Control’ (1988) Contemporary Crises 345.

49 Since this was submitted there have been two excellent additions to the literature: McColgan ‘In Defence of Battered Women Who Kill’ (1993) OX J LS 508 and Nicholson and Sanghvi ‘Battered Women and Provocation: The Implications of R v Ahluwalia’ [1993] Crim LR 728.