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?

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Criminal Law and Procedure (LAWS1206)

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. 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.  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 Runjajic  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.

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.  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.

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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 DPP 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 ...

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