Battered Woman Defense - The Law

The Law

The courts in Australia, Canada, New Zealand, United Kingdom, and United States have accepted the extensive and growing body of research showing that battered partners can use force to defend themselves and sometimes kill their abusers because of the abusive and sometimes life-threatening situation in which they find themselves, acting in the firm belief that there is no other way than to kill for self-preservation. The courts have recognized that this evidence may support a variety of defenses to a charge of murder or to mitigate the sentence if convicted of lesser offenses. Again, battered woman syndrome is not a legal defense, but may legally constitute:

• Self-defense when using a reasonable and proportionate degree of violence in response to the abuse might appear the most appropriate defense but, until recently, it almost never succeeded. Research in 1996 in England found no case in which a battered woman successfully pleaded self-defense (see Noonan at p198). After analysing 239 appellate decisions on trials of women who killed in self-defense in the U.S., Maguigan (1991) argues that self-defence is gender biased.
• provocation;
• insanity (usually within the meaning of the M'Naghten Rules); and
• diminished responsibility.

However, in 1994, as part of the Violence against Women Act, the United States Congress ordered an investigation into the role of battered woman syndrome expert testimony in the courts to determine its validity and usefulness. In 1997, they published the report of their investigation, titled The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials. “The federal report ultimately rejected all terminology related to the battered woman syndrome…noting that these terms were ‘no longer useful or appropriate’” (Rothenberg “Social Change” 782). Instead of using the term "battered woman", the terminology “battering and its effects” became acceptable. The decision to change this terminology was based on a changing body of research indicating there is more than one pattern to battering and a more inclusive definition was necessary to more accurately represent the realities of domestic violence.