5.5 The Defensive Action of Battered Women
5.5.3 Expert Testimony Regarding ‘The Battered Woman
Prima facie, there is no room within the present framework for a discussion of the admissibility of expert testimony regarding the ‘battered woman syndrome’, since our concern is not with rules of evidence but with substantive criminal law.
specifying circumstances which will be relevant for the evaluation of the reasonableness of the defen- sive force, such as: the defender’s background, including previous abuse that she had endured; the his- tory of the previous relationship between the defender and the aggressor, including previous acts of violence or threats; the age, race, gender and mental and physical characteristics of the defender and of the aggressor. See the report, Self-Defence Review—Final Report—Submitted to the Minister of Justice of Canada and the Solicitor-General of Canada (Chair: Judge Lynn Ratushny, Ottawa, 1997) and the draft law included therein. This draft was also included within the framework of the ‘Consultation Paper’, Department of Justice, Canada, Reforming Criminal Code, Defences: Provocation, Self- Defence and Defence of Property—A Consultation Paper (Ottawa, 1998) and included an invitation for readers to respond.
1319 See, eg, Rosen, n 37 above, at 15, 33, 44; Taylor, n 1208 above, at 1705 (it is interesting to note that this writer attributes such claims to anti-feminism); Smith, n 91 above, at 47; Kadish and Schulhofer (2001), n 38 above, at 770–73.
1320 See Kadish and Schulhofer (2001), n 38 above, at 775; Diamond, n 30 above, at 690–93; Rosen, n 37 above, at 15–16; the 1998 Supplement to Robinson (1984), n 37 above, at 10 (regarding vol 2, p 71 fn 4).
1321 It is interesting here to mention the words of one of the judges, who referred to a request by the defence to have an expert testify with regard to the ‘Holocaust syndrome’ in Werner v State (Tex Crim App) 711 S W 2d 639(1986) at 645. According to the judge, there already exist the battered woman syn- drome, the battered child syndrome, the battered husband syndrome, the battered parent syndrome, the battle-weary syndrome, the police officer syndrome, the holocaust syndrome and certainly additional syndromes will be added tomorrow, such as the syndrome of the appeal court judge. See also Kadish and Schulhofer (2001), n 38 above, at 775.
However, viewing these expert witnesses as relevant is often connected with the erosion of the basic conditions for the establishment of private defence.
As Schneider notes, the main purpose in bringing expert witnesses into our dis- cussion is to demonstrate the reasonability of the battered woman’s violent action.1322The professionals who usually testify on this matter are psychologists and psychiatrists. The leading expert witness in this matter was Dr Walker, who presented two theories before the courts: the first—‘the cycle of violence’, and the second—‘learned helplessness’. These theories were designed to provide the basis for the ‘battered woman syndrome’. The definition offered for a ‘battered woman’
is based on the fact that the couple have at least twice passed through the ‘cycle of violence’, that is composed of three stages: an argument; physical violence; regret and reconciliation.1323The ‘learned helplessness’ is based, inter alia, on the fact that agencies—including the police—do not provide sufficient protection for the woman, on economic needs, on the desire to maintain the unity of the family, on fear relating to society’s reaction, and on fearing the husband.1324
The main question regarding the matter of expert testimony is its actual relevancy. A number of versions exist with regard to the legal questions for which such evidence may be relevant. The main question for which there is quite wide consensus regarding the relevancy of this testimony is: why did the woman not abandon the home before the tragic event? An American court, for example, in the significant Kellycase (1984), held that the decisive factual question, for which expert testimony is important, is why did the woman not leave her husband.1325 However, in my opinion, this question is completely inconsequential for the estab- lishment of private defence. There is no doubt that the battered woman is entitled to stay in her home despite the beatings. The only relevant question regarding her departure from her home is why at the time of the tragic incident itself she avoided going out of her home (as required, inter alia, by the duty to retreat) instead of resorting to deadly force. Another question—which is indeed liable to render the expert testimony relevant—is why did the woman fear that she would suffer immediate serious injury, even though no such danger existed in reality. Indeed, experts’ testimonies often focus on an attempt to answer this last question. It is, however, necessary here to note that this case, in effect amounts—at most—to putative private defence, which although it enables the provision of an excuse to the actor, does not constitute real and justified private defence1326.
1322 See Schneider (‘Describing and Changing’), n 1299 above, at 198.
1323 See, eg, the leading ruling State v Kelly (Sup Ct of NJ) 478 A 2d 364 (1984); Walker, n 1299 above; Rosen, n 37 above, at 39; Schneider and Jordan, n 762 above.
1324 See, eg, Schneider and Jordan, n 762 above, at 7–8; Diamond, n 30 above, at 693; Taylor, n 1208 above, at 1706.
1325 See State v Kelly (Sup Ct of NJ) 478 A 2d 364 (1984). Similarly Schneider notes that the syn- drome explains why the woman avoided leaving and not why she acted as she did—see Schneider (‘Describing and Changing’), n 1299 above, at 216.
1326 Regarding putative private defence see section 5.2 above.
However, it should be noted that expert testimony regarding the battered woman syndrome is liable to serve as a double-edged sword with regard to her defence. For example, when the court in the case of Kelly emphasises the ‘experi- ence’ accumulated by the woman in the seven years during which she was beaten about once a week,1327it is difficult to escape the impression that the many beat- ings in the past were actually liable to demonstrate to the woman that the present beating does not constitute a severe danger to her that justifies deadly force. For in all the previous beatings, she was not exposed to serious danger, and there was no indication that the next beating would be different.
The third main question on which it is sometimes claimed that expert testimony can shed light relates to the very existence of severe and immediate danger. This question may arise in a different disguise, when a certain legal system requires rea- sonability of the mistake as a condition for the grant of an excuse of putative defence.1328In such a case, the irrelevance of the expert testimony is evident. If a defence bearing a character of an ‘excuse’ or a reason for a mitigated sentence is involved, it would have significant relevance, and, subsequently, I shall relate to these options. However, within the framework of the ‘justification’ of private defence, this evidence has no real relevance. It is difficult to reconcile the killing of a sleeping person with the existence of severe and immediate danger. Moreover, as noted above regarding putative private defence, so too—and perhaps with more vigour—the expert testimony may serve as a double-edged sword when real pri- vate defence is concerned. The many beatings in the past may demonstrate that the present danger is not existential and immediate. In order to remove any doubt, it should be noted that such severe danger is required only in the case of a deadly action by the woman, for if she relies on moderate force, then private defence is not conditioned on the existence of severe danger, and it is reasonable to assume that her action would be completely justified.
The test—from the realm of evidence law—that established the recognition of expert testimony in the United States courts, and accordingly has implications for the present matter, was decided in the Fryecase (1923). According to this test, the research must be at an advanced stage and must have gained sufficient recognition from the relevant scientific community.1329The Fryerule was overturned in the case of Daubert (1993).1330However, even before this, in the Kellycase (1984), the court highlighted the multiplicity of publications that then existed on the subject (five books and about 70 articles and commentaries) and based its decision almost
1327 See State v Kelly (Sup Ct of NJ) 478 A 2d 364 (1984).
1328 See, eg, Kadish and Schulhofer, n 640 above, at 864.
1329 See Frye v U.S. 293 F 1013 (1923), and see, eg, Kadish and Schulhofer, n 640 above, at 869.
1330 See Daubert v Merrell Dow Pharmaceuticals, Inc, 113 S Ct 2786 (1993); see also, Andre A Moenssens, James E Starrs, Carol E Henderson, and Fred E Inbau, Scientific Evidence in Civil and Criminal Cases, 4th edn (New York, 1995) at 13–18.
exclusively on this fact.1331Criticism was expressed in this regard, and there were courts which did not allow expert testimony on this matter. Thus, two streams developed regarding this matter in American adjudication.1332Moreover, there is also a claim that the scientific validity of Walker’s above-mentioned theory in respect to the ‘battered woman syndrome’ has not been proven, since the theory is illogical, suffers from serious methodological problems and does not explain why the battered woman attacks her husband when she does. Inter alia, this sharp criticism is based on Walker’s own book, according to which the theory is quite tentative, and she herself feels uncomfortable with the decisive significance that has been attributed to her words.1333
English courts are more cautious in accepting psychiatric testimony, in light of their perception that apart from the case of insanity, the trier of fact is the most suitable body to assess the reactions of criminal defendants. Accordingly, Smith maintains that developments in the spirit of American case law are not expected in English law.1334
To conclude this consideration of experts’ testimony, it should be emphasised that the problem that it raises deviates from evidence law and concerns the substantive law itself. Their relevance is limited to defences of excuse and to the mitigation of punishment, and they do not contribute to the question regarding the existence of the conditions for private defence as a justification.