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Imagine it, you have found the love of your life! He is tall, great head of hair, gorgeous eyes and a smile that could charm the pants off anyone. You could not be happier or more in love. Then, not long after your wedding day, everything changes. He is soon monitoring your every action. Giving you permission to whom you can and cannot speak to. Insulting you, and lastly begins to get physical. You make up excuses, telling yourself, family and friends he is acting this way because he is stressed, he did not mean to hurt me, it was an accident, I pushed him too far, and all the while he is telling you he loves you, it will not happen again, or that he will change. Unfortunately, this a norm for many women. Some battered women are trapped in the endless violent cycle. Some escape, constantly living in fear that their abuser will find them. Some are murdered during a violent attack. Some fight back, and while defending themselves, end up injuring or killing their attacker. Throughout this paper the battered womens defense will be examined. Firstly, it will be determined what the threshold is to be considered a battered woman. It will then be discussed how the battered woman defense came into force, when this defense is considered valid, and lastly how this defense affected battered women throughout the justice system.
Lenore Walker describes battered womens syndrome as an act that has been committed and is necessary to protect themselves, or their loved ones usually children (Walker, 2002, p. 321). It is often used in a court proceeding to show the judge and the jury what the womans state of mind would have been at the time of the murder, as they typically do not occur in the traditional fashion that one might think of. This means that typically the man is sleeping, and is not participating in a physical assault on the woman at the time of the crime. According to Walker, prior to this defense, there was no defense for this type of crime and women were advised by their lawyers to plead guilty. During this time if a defense was given, it was usually in the form of an insanity plea (Walker, 2002, p. 321).
Many of these women claim that they committed these acts due to feelings of terror and desperation (Bartollas & van Wormer, 2014, p. 240). Meaning that they feel there is no other escape that is available to them other than to take another persons life often times a person they have loved, shared memories, or even made a family with or risk having their life ended at the hands of their partner. The abused womans only escape is to use force in self-defense.
Despite the defense, in a 2012 report done by the National Institute of Justice, it has been found that one in every four women will be physically assaulted by a partner, or an ex-partner in her life-time (Bartollas & van Wormer, 2014, p. 229). This number seems quite high, and something ought to be done about the high levels of attacks women are encountering throughout their lives, more so on the end of law enforcement. There are several cases where the woman has reached out for help regarding death threats, assaults etc from partners/ ex-partners. Due to the process, lack of past reports, retracted charges, some women are often murdered before enforcement sees that they were in real danger. As a result of poor resources for battered women, over fifty percent of all women who are killed in the United States are murdered by previously violent husbands, usually when they attempt to terminate the relationship (Walker, 2002, p. 334).
Currently, in most Countries, it is against normative social values for a man to beat their wife/ partner. However, historically, there was a time where a man had a right to behave in such a way towards a woman. So long as the violent act was not excessive, and rather used to correct unwanted behaviour, it was deemed acceptable (Bartollas & van Wormer, 2014, p. 227). These were the days where women were seen as chattel rather than as people, and a marriage certificate was proof that the man had ownership of his wife, which was indoctrinated by the English Common law. However, it took until the early 1980s for this defense to receive some acceptance within the court system. As the defense became more and more popular, it became clear to attorneys, health practitioners and psychologist the full extent to which the woman was affected by these violent attacks (Walker, 2002, p. 322).
It is said that Battered Woman Syndrome is a sub-category of Post-Traumatic Stress Dissorder (PTSD). It is a collection of thoughts, feelings, and actions that logically follow a frightening experience, where one could expect the experience to repeat (Walker, 2002, p. 327). PTSD is a diagnostic category found in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and is often what military persons are diagnosed with upon return from intense combat. Many of the military persons who are diagnosed with PTSD often receive extensive therapy and medication in order to attempt to retrain their brain to refrain from the fight aspect of our innate fight or flight response, and instead process the situation and access it, knowing that they are safe, and no longer in danger of repeated traumatic experiences. Battered women do not have access to this type of treatment due to social stigmas placed upon them. Most see it as a private civil issue that does not require intervention.
In 1994 the Violence Against Women Act was enacted in the United States. This Act is federal legislation that provides and prevention and prosecution of violent crimes against women and children, and those who became victims as a result of said crimes (Bartollas & van Wormer, 2014, p. 228). This Act was to allow the public to recognize the severity of domestic crimes happening all around them. It was to raise awareness about the effects of violence, sexual assault and stalking of women and the hands of their partner. Similarly, across Canada, several provinces have enacted their own legislation that pertains to the protection of women when dealing with abusive partners. Many of these provincial legislations define domestic violence to include: physical abuse, threats and property damage, forcible confinement, and/ or sexual abuse (Girard, 2006, p. 1). In 2000 a provincial act was brought to the table in Ontario called the Domestic Violence Protection Act, which was put in place to better protect he victims of domestic violence. This Bill was introduced by the Progressive Conservative Party during the time that Mike Harris was in office. Although the Bill passed the stages in becoming a legislative document, it was never enacted.
According to Walker, a psychologist is to examine the battered woman to determine her state of mind at the time she retaliated, attacking/ killing her abuser. The psychologist first needs to determine if the woman was battered. This could be done by looking into past hospital records, out cries to family/ friends about the abuse, and or past police reports. Secondly, the psychologist is to determine if the abuse caused the development of Battered Woman Syndrome. Lastly, how that impacted on the womans state of mind at the time of the attack for which she is now being charged with. Was she angry? Was she in fear for her life (not necessarily in that exact moment)? The crime itself is closely investigated. Any and all evidence is gone over carefully as to access the defense appropriately.
Walker defines self-defense as the use of equal force or the least amount of force necessary to repel danger when the person reasonably perceives that they are in imminent danger of serious bodily harm or death (Walker, 2002, pg. 323). Walker then goes onto state how the legal definitions and interpretations of these words are highly important, due to the fact that should one of the standards not be met, the entire testimony may be inadmissible. According to an article published in 2012, there is a distinct difference between how woman who kill their abuser are criminally punished (Sheehy, Stubbs & Tolmie, 2012). Typically, those convicted of first or second degree murder face a life sentence. The relevant difference between first and second degree murder with respect to battered women who kill it whether or not they planned their attack versus hiring a hit man (Sheehy et al, 2012). This differences is important as it will help the judge and jury during deliberation and sentencing, as well as parole eligibility.
In 2013, the Supreme Court of Canada held a case that became a significant impact on domestic violence. As a result of the R v Ryan case, there is more clarity on the defense of duress, as well as it shed a light on the ways in which society and the criminal justice system responds to cases of domestic violence. The appellant, Nicole Ryan (now Doucet) had suffered through years of abuse at the hands of her husband. Weekly, he would taunt her, threaten her, physically assault her, often times threatened to kill her and stating he would kill both her, and their daughter should she attempt to leave him. Ms. Ryan feared for her life and her daughters life and decided she would hire a hitman. Unfortunately, the hitman she hired happened to be an undercover police man and she was subsequently arrested and charged with counselling the commission of an offence not committed, contrary to the Canadian Criminal Code (McQuigg, 2013 p. 186). Upon trial it was decided that Ms. Ryan was in fact a victim and the only way out of the violent cycle was, in her mind, to kill her husband as all other avenues (local authorities) had been contacted to aide her and made it known to her that this was a civil matter and not a criminal one.
Obviously not in agreement, the Crown appealed and was met with the same unanimous decision. Despite the fact that the Crown attempted to alter the case against Ms. Ryan, claiming duress was now not valid, the Court rejected the argument stating that the purpose of the defense of duress is to absolve individuals of criminal liability in situations which their conduct is morally involuntary (R v Ryan, 2013). The Crown then appealed to the Supreme Court of Canada, where it was decided that the defense of duress was not a valid defense in this case. Although it was not a valid defense, the Courts agreed that the abuse suffered had taken a toll on Ms. Ryan and decided they would not subject her to a new trial, ordering a stay of proceedings. In addition, the Courts noted that had Ms. Ryan had received assistants from local law authorities, it is likely that the crime would not have been committed.
It is easy to see the impact domestic abuse has on a person. As previously stated, many women who attempt to seek help are often met with little to no avail. Our society turns a blind eye to women who claim their abused. They are stigmatized and often shamed into feeling it is their fault. Many women are never able to escape out of fear for their lives, loved ones, or simply because they have nowhere to go, or funds available to relocate. Unfortunately, those who have never experienced the terror and abuse have this notion that the solution is easy, just leave. What those people do not know is that these partners strip the women of all of their dignity, self-worth, confidence etc and make is so as though the woman is convinced that no one would believe them if they went to the authorities. The abused women loose contact with friends and family and become isolated and eventually prisoners of their own homes as a result of the psychological and emotional abuse.
In conclusion, it is not always black and white when it comes to using the battered womens defense. It takes psychological testing and analysis to render the woman to have had valid reasoning to murder her attacker. Despite years of abuse, threats, bruises, there is still no guarantee that a court will find her defense valid, resulting in a lengthy imprisonment. As seen throughout the paper, there are many factors that contribute to the defense being valid, and how the courts navigate through the controversial matters. Local law authorities need to create a better approach to handling domestic abuse cases/ claims as this would drastically alter the outcomes for the women, and save several lives. Without this change, I fear that women will continue to have to validate their reasoning for getting the courage to fight back and regain their dignity. In addition, communities need to come together and create more shelters and funding for women who are able to escape. These women could be our mothers, our sisters, our daughters. They need all the help we can give, with zero judgment.
References
- Bartollas, C. & van Warmer, K. (2014). Women and the Criminal Justice System (4th ed.). New Jersey: Pearson
- Domestic Violence Protection Act, 2000, S.O. 2000, c. 33 Bill 117
- Girard, A., ‘Ontario Domestic Violence Protection Act: An analysis of discourse.’ (2006). Electronic Theses and Dissertations. 2931
- McQuigg, R. (2013) The Canadian Supreme Court and Domestic Violence: R v Ryan, 2013 SCC 3
- Sheehy, E., Stubbs, J., Tolmie, J., (2012) Battered women charged with homicide in Australia, Canada and New Zealand: How do they fare? Sage Journals 45(3)
- Walker, L. E., (2012) Battered Women Syndrome and Self-Defense, 6 Notre Dame J.L. Ethics & Pub, 312 334. Retrieved from http://scholarship.law.nd.edu/ndjlepp/vol6/iss2/3
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