BATTERED WOMAN SYNDROME

The battered woman defense also referred to as battered woman syndrome is a defense used in court that the person accused of an assault / murder was suffering from battered person syndrome at the material time. Because the defense is most commonly used by women, it is usually characterised in court as battered woman syndrome or battered wife syndrome. There is currently no medical classification to support the existence of this "syndrome" in the sense used by lawyers, though it has historically been invoked in court systems. Although the condition is not gender-specific, the admission of evidence regarding battered woman syndrome as relevant the defense of self-defense is commonly understood as a response by some jurisdictions to perceived gender-bias in the criminal law. Thus, this is a reference to any person who, because of constant and severe domestic violence usually involving physical abuse by a partner, may become depressed and/or unable to take any independent action that would allow him or her to escape the abuse. The condition explains why abused people may not seek assistance from others, fight their abuser, or leave the abusive situation. Sufferers may have low self-esteem, and are often led to believe that the abuse is their fault. Such persons may refuse to press charges against their abuser, or refuse all offers of help, perhaps even becoming aggressive or abusive to others who attempt to offer assistance. This has been problematic because there is no consensus in the medical profession that such abuse results in a mental condition severe enough to excuse alleged offenders. Nevertheless, the law makes reference to a psychological condition, even though neither the DSM nor the ICD medical classification guides as currently drafted includes the syndrome in the sense used by lawyers.

In R v Ahluwalia (1992) 4 AER 889 a battered wife killed her violent and abusive husband. She claimed provocation and the judge directed the jury to consider whether, if she did lose her selfcontrol, a reasonable person having the characteristics of a well-educated married Asian woman living in England would have lost her self-control given her husband's provocation. On appeal, it was argued that he should have directed the jury to consider a reasonable person suffering from 'battered woman syndrome'. Having considered fresh medical evidence, the Court of Appeal ordered a retrial on the basis that the new evidence showed an arguable case of diminished responsibility in English law. Similarly, in R v Thornton (No 2) (1996) 2 AER 1023 the battered wife adduced fresh evidence that she had a personality disorder and the Court of Appeal ordered a retrial considering that, if the evidence had been available at the original trial, the jury might have reached a different decision. The victim does not have to be in a position to carry out the threats immediately. In R v Charlton (2003) EWCA Crim 415, following threats of sexual and violent abuse against herself and her daughter, the defendant killed her obsessive, jealous, controlling partner while he was restrained by handcuffs, blindfolded and gagged as part of their regular sexual activity. The

term of five years' imprisonment was reduced to three and a half years because of the terrifying threats made by a man determined to dominate and control the defendant's life. The threats created a genuine fear for the safety of herself and more significantly, her daughter, and this caused the defendant to lose control and make the ferocious attack. In HM's AG for Jersey v Holley (2005) 3 AER 371 the Privy Council regarded Smith as wrongly decided, interpreting the Act as setting a purely objective standard. Thus, although the accused's characteristics were to be taken into account when assessing the gravity of the provocation, the standard of self-control to be expected was invariable except for the accused's age and sex. The defendant and the deceased both suffered from chronic alcoholism and had a violent and abusive relationship. The evidence was that the deceased was drunk and taunted him by telling him that she had had sex with another man. The defendant then struck the deceased with an axe which was an accident of availability. Psychiatric evidence was that his consumption of alcohol was involuntary and that he suffered from a number of other psychiatric conditions which, independently of the effects of the alcohol, might have caused the loss of self-control and induced him to kill. Lord Nicholls said: Whether the provocative acts or words and the defendant's response met the 'ordinary person' standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self-control was sufficient excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant's conduct is 'excusable'.

Gender of the victim

Gender is also irrelevant. In AG's Reference (No.24 of 2003) (2003) EWCA Crime 2451, the defendant, who had a low IQ, suffered prolonged taunting from his wife as to his illiteracy and impotency. During an argument, he stabbed her (and his son) and then wounded himself with a knife purchased during a break in the argument to harm himself rather than others. Sentences of three and a half years for each offence to be served concurrently were imposed, the sentencing judge referring to the defendant as having been worn down over months and eventually broken by the cruel taunting of his wife and being forbidden from seeing his children. When a weapon is used, the court is more cautious. In R v Howell (1998) 1 Cr. App. R. (S.) 229 the Court of Appeal reduced a sentence of 6 years to three and a half years. The wife's use of a gun to kill her violent husband weighed heavily in the "difficult balancing exercise" which the Court had to perform. In giving its judgment, the Court said: On the one hand there is the principle that spouses must not resort to the use of firearms however unhappy their marriage is. On the other hand there is the duty of the court to temper justice with mercy, even if a man has died, when there is a history of provocation and violence of the type that is so clearly shown in this case.

Family environment
The abuse may pervade the family environment. In R v Murray (2001) 2 Cr. App. R. (S) 5, following years of violence and abuse to both himself and his mother, the young defendant took an iron bar from the victim (his stepfather), and attacked and killed him with it. In reducing the custodial sentence from five years detention to an eighteen-month detention and training order, the Court of Appeal said that the trial judge had not given proper weight to the long period of abuse and the provocation experienced by the defendant. Finally, on the related condition, R v T (1990) Crim. LR 256 offered clinical evidence of posttraumatic stress disorder after a rape three days earlier to explain an armed robbery which involved her stabbing her victim and reaching into the victims car to take her bag. Such a disorder is closely similar in effect to that of concussion caused by a physical blow and Southan J. allowed the defence of automatism to go before the jury, accepting that an incident such as rape could have a traumatic effect on a young woman, however stable, and that could satisfy the requirement laid down in R v Quick & Paddison that there had to be evidence of "an external factor" causing a malfunctioning of the mind. Post-traumatic stress where the evidence suggested that the defendant was acting as though in a "dream", could therefore amount to automatism. The jury nevertheless convicted her.

Reform
The Law Commission Report on Partial Defences to Murder (2004), rejects the notion of creating a mitigatory defence to cover the use of excessive force in self-defence but accepts that the "all or nothing" effect of self-defence can produce unsatisfactory results in the case of murder. A battered woman, partner in a same-sex relationship or abused child using excessive force because he or she is physically at a disadvantage and not under imminent attack, would be denied a defence. It was always possible that the same set of facts could be interpreted as either self-defence or provocation where there was a loss of control resulting in death. Thus, the Commission recommends a redefinition of provocation to cover situations where a person acts lethally out of fear. This reflects the present view of psychiatrists that most people act in violent situations with a combination of fear and anger in their minds, and to separate the two emotions is not legally constructive.