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 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.
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. 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.
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". 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". 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. 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. 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 Kontinnen 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. Further disadvantages of expert evidence reinforcing notion of irrationality on the part of the woman were demonstrated in Hickey. 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.
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. 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. 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". 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 Stephenson, 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.
R v Runjanjic & Kontinneau (1991) 56 SASR 114 at 119.
Walker, L.E., The Battered Woman, Springer, New York, 1984.
See cases such as Hickey (unreported, Supreme Court NSW 14 April 1992) for self defence; Chhay (1992)72 A Crim R 1 (NSW CCA) and R v Gilbert (unreported, Supreme Court of Western Australia, 4 November 1993) for self-defence and provocation; R v Woolsey (unreported, Supreme Court of NSW 19 August 1993) for mitigation of sentence.
Katherine O'Donovan, "Defences for Battered Women Who Kill" Journal of Law and Society No 18:2 (Summer 1991)219.
Julie Stubbs and Julia Tolmie, "Battered woman syndrome in Australia: A challenge to gender bias in the law?" in Julie Stubbs, ed., Women, Male Violence & The Law (The Institute of Criminology: Sydney, 1994)203.
Zecevic v Dpp (1987) 61 ALJR 375.
Gleeson CJ, Chhay (1992)72 A Crim R 1 (NSW CCA) in Criminal Laws 2nd Edition, eds., David Brown, David Farrier, David Neal and David Weisbrot, Eds. (Federation Press: Sydney, 1996)690.
Runjanjic and Kontinnen (1991) 56 SASR 114 at 119 per King CJ
R v Whalen (unreported Supreme Court of NSW, 5 April 1991) in Stubs and Tolmie op.cit., 193.
Stubs and Tolmie, op.cit., 204.
Julie Stubbs, Evidentiary issues in using battered woman sydnrome:Who can speak? [http:uniserve.edu.au/law/pub/teaching_material/genderissues/frame/CRIMINALLAW.html]
(1991) 56 SASR 114 at 119.
(unreported, NSW SC, 14 April 1992) in eds., David Brown, David Farrier, David Neal and David Weisbrot, op.cit.,724.
Hickey (unreported, NSW SC, 14 April 1992) in Stubs an Tolmie, op.cit., 209.
Stubs and Tolmie, op.cit.,211.
Stubs and Tolmie, op.cit.,204.
Julie Stubbs, Evidentiary issues in using battered woman sydnrome:Who can speak? [http:uniserve.edu.au/law/pub/teaching_material/genderissues/frame/CRIMINALLAW.html]
(unreported ACT Magistrates Court, 19 May 1993) in eds., David Brown, David Farrier, David Neal and David Weisbrot ,op.cit., 777.