‘‘Battered woman syndrome’’ (BWS) is a descriptive term that refers to a pattern of psychological and behavioral symptoms found in women living in abusive relationships. Battered women sometimes use physical force to kill their batterers. These women may be charged with a criminal offense. When women are charged with murder or manslaughter for killing their batterer, they often do not deny having committed the act, but rather claim the act was committed in self-defense. In some cases, battered women may claim that they were insane at the time of the killing. Evidence of BWS may be offered to substantiate the claims of self-defense and insanity. Therefore, there is no specific legal defense called ‘‘the BWS defense’’; rather, evidence about battering and its effects is offered to assist the jury in its determination of the guilt or innocence of the defendant based on the claims of self-defense or insanity.
II. Definition of Battered Woman Syndrome
III. Battered Woman Syndrome as a Form of Post-Traumatic Stress Disorder
IV. The Claim of Self-Defense
V. The Defense of Insanity
The Use of Expert Witness Testimony in Cases Involving Battered Women
VII. Legal Standards and Issues Concerning Expert Witness Testimony
Battered woman syndrome has been used as a defense in criminal cases since the late 1970s. However, its introduction to support claims of self-defense and insanity in cases of spousal homicide raises many empirical, normative, and legal questions. Battered women’s advocates express concerns about the use of the term ‘‘syndrome’’ to describe the response of women who kill their batterers. These advocates argue that the use of the term ‘‘syndrome’’ serves to stigmatize battered women defendants because it appears to indicate that battered women have some sort of medical condition or psychological disorder. In addition, some behavioral science research questions the underlying empirical research used to support the claim that a specific, identifiable syndrome affects women who have been subjected to continuous physical abuse by their intimate partners. Finally, many psychologists, legal scholars, and attorneys challenge the use of BWS as evidence at trial, especially when the defense counsel uses expert witness testimony to support battered women’s defense claims.
This research paper will examine the use of BWS in cases of spousal homicide by considering: (1) the definition of BWS, (2) the claim that BWS is a form of posttraumatic stress disorder (PTSD), (3) the legal standard for claims of self-defense, including the problems with using BWS to support such claims, (4) the legal standard of insanity and the problems with using BWS to support such claims, (5) the use of expert witnesses to support claims of BWS, and (6) the legal standards and issues surrounding the admissibility of expert witness testimony concerning BWS. In examining these issues, the word ‘‘spouse’’ will include married couples as well as partners who live together and are not legally married. It will also include recently separated partners as well as divorced partners.
Definition of Battered Woman Syndrome
Battered Woman Syndrome is associated with the pioneering research of feminist psychologist and researcher Dr. Lenore Walker. She introduced the term in her 1979 book The Battered Woman, based on her initial findings from a nonrandom sample of 110 predominantly white and middle-class battered women who had contacted social service agencies. On the basis of her research, Walker advanced a psychological theory of the process of victimization of battered women. She posited that not all battered women develop BWS. Rather, the syndrome refers to women who have been, on at least two occasions, the victim of physical, sexual, or serious psychological symptoms by a man with whom they have had an intimate relationship. Walker identified BWS as comprising two distinct components: (1) a cycle of violence and (2) learned helplessness.
The cycle of violence refers to a three-stage, repetitive cycle that occurs in battering relationships. The first stage is the tension-building stage, which consists of a gradual buildup of minor abusive incidents (largely verbal and psychological abuse) in which women attempt to placate the batterer. This stage is eventually followed by an acute battering stage, in which the severity of the abuse increases and women are subjected to a violent battering incident. Following the acute battering stage is a calm, loving, contrite stage in which the batterer apologizes for his behavior. The batterer’s behavior in this third stage encourages the woman to believe that he will reform and influences her to remain in the relationship. Walker identified this third phase as the one that most victimizes women psychologically, because inevitably the cycle of violence recurs. Battered women become demoralized as they realize that the batterer has once again fooled them into believing that he will change. Although Walker did not hypothesize a specific time frame to define the cycles or the phases within it, she argued that the cycle is eventually repeated, and over time the violence escalates in both severity and frequency.
The second component of Walker’s theory of BWS is learned helplessness. Learned helplessness explains the psychological paralysis that Walker argued prevents some women from leaving their batterers. Walker maintained that learned helplessness occurs in a domestic violence situation when battered women cannot rest assured of their own safety because, regardless of their own efforts, they face the batterer’s unpredictable, abusive behavior. Over time, as the violence escalates, women begin to live in a constant state of fear, believing that there is no escape from their situation. This fear is typically reinforced by the batterers’ threats that if they attempt to leave or seek help, he will subject them to even greater abuse or kill them and their children. In addition, the batterers’ controlling behavior often causes the women to isolate themselves from family and friends. Walker also argued that social and economic factors, such as the women’s emotional and financial dependency on their batterers, societal norms stressing the importance of marriage, and the lack of effective social and legal remedies to end the battering, prevent women from leaving these relationships. Battered women believe that there is no way for them to prevent the violence; therefore, they simply give up and accept the abuse, or in some cases, resort to violence and kill their batterers to free themselves from the abuse.
Battered Woman Syndrome as a Form of Post-Traumatic Stress Disorder
After Walker published her research, some empirical data emerged that cast doubt on her explanation of why women kill their batterers. More specifically, some research indicated that victims of abuse often contact other family members and seek the assistance of the legal system for help as the violence from their batterers escalates. This research also indicated that when battered women sought outside help, they were confronted with insufficient help sources, a legal system that did not address their issues, and societal indifference. The lack of practical options, combined with victims’ lack of financial resources, made it likely that battered women would stay in abusive relationships. In contrast to this research demonstrating battered women’s active help-seeking behavior, Walker’s theory of BWS emphasized women as becoming passive and helpless in the face of repeated abuse.
An alternative conceptualization of BWS emerged in the 1980s when the American Psychiatric Association added post-traumatic stress disorder (PTSD) as a classification in the Diagnostic and Statistical Manual of Mental Disorders, third edition (DSM-III), the foremost manual used by mental health professionals to diagnose mental illness. Although the DSM-III did not recognize BWS as a distinct mental illness or disorder, many experts regarded BWS as a subcategory of PTSD. The DSM’s fourth edition (DSM-IV), published in 1994, retains PTSD as a mental disorder and often uses it as a reference in cases of spousal homicide to attempt to demonstrate that BWS is a form of PTSD.
The PTSD theory as applied to battered women does not exclusively focus on battered women’s perceptions of helplessness or ineffective help sources to explain why battered women stay with their abusive partners. Instead, the theory focuses on the psychological disturbance that an individual suffers after exposure to a traumatic event. The diagnostic criteria for PTSD include a history of exposure to a traumatic event, as well as the following symptoms: intrusive recollection, avoidant/ numbing, and hyperarousal. In individuals suffering from PTSD, the traumatic event is a dominant psychological experience that evokes panic, terror, dread, grief, or despair. Flashbacks of battering incidents are examples of intrusive recollection symptoms that battered women may display. The avoidant/numbing symptom consists of the emotional strategies that individuals with PTSD use to reduce the likelihood that they will expose themselves to traumatic stimuli or, if exposed, minimize their psychological response. These strategies can be behavioral (e.g., avoiding situations in which the battering is likely to be encountered), cognitive (e.g., using disassociation to cut off the conscious experience of the trauma-based memories of battering incidents), or emotional (e.g., using psychic numbing to separate the cognitive and emotional aspects of the experience). The hyperarousal symptoms closely resemble those seen in panic and generalized anxiety disorders; however, hypervigilance and startle responses are unique to PTSD. The hyperarousal vigilance symptom refers to the response of victims’ autonomic nervous systems, which signal battered women that they and/or their children are in danger. In addition, persons repeatedly victimized and repeatedly placed in harm’s way become irritable, lose the ability to concentrate, and may experience panic attacks. These feelings can become so intense that victims appear paranoid, and it is claimed that battered women, suffering from PTSD, may become convinced that the batterer will kill them at any time.
In the case of spousal homicide, defense counsel may introduce evidence attempting to prove that the battered woman defendant displays the symptoms of PTSD and that these symptoms are a result of the repeated battering that she experienced from her partner. However, considering BWS as a form of PTSD remains a controversial issue. Researchers indicate that while some women who experience continuous battering may experience the symptoms that are diagnosed as PTSD, others do not. Moreover, feminists argue that linking BWS to PTSD presents an image of battered women as mentally ill, and does not emphasize the social conditions of the power and control issues among batterers that served to create the situations of domestic violence experienced by battered women. Feminists have been especially vocal in their criticism of this medicalization effect in situations in which battered women have killed their partners and PTSD is used to support a claim of self-defense. These critics charge that viewing battered women as mentally disordered when they assert self-defense diminishes battered women’s claims that their actions were reasonable given their situation.
The Claim of Self-Defense
Women who kill their batterers may claim that the killing was committed in self-defense. The law considers self-defense an act of justification. This means that the legal system does not consider someone who kills in self-defense morally culpable; it concludes that the action was correct under the circumstances. The claim of self-defense requires battered women defendants to demonstrate that their actions meet the legal standards for a claim of self-defense. However, legally using self-defense to justify the killing of partners by battered women is controversial and often problematic because of the kind of evidence that the defense offers at trial to prove its case and because of the jury’s perception of the battered woman’s situation at the time of the killing.
The law of the state where the killing took place defines the legal standard for a claim of self-defense. Most states define self-defense in terms of four traditional requirements. First, at the time of the act, the defendant must have believed that he or she was in imminent danger of unlawful bodily harm. Second, the defendant must have used a reasonable amount of force to respond to the threatened danger. Third, he or she cannot have been the aggressor. Fourth, under some circumstances the defendant must have had no opportunity to retreat safely. Essentially this means that where individuals cannot resort to the law in response to violence from others, they may use reasonable force to protect themselves from physical harm.
In many cases in which women kill their batterers, these traditional criteria of self-defense are not met. For example, in the majority of cases, battered women who kill their abusers do not attack during a direct confrontation but rather when no ‘‘imminent’’ threat may seem apparent to an outside observer. Battered women may kill their mates during a lull in the violence or when the batterers are sleeping. Battered women may use a knife or gun while the abuser was unarmed. In addition, though most states do not require the victim to retreat when attacked, when battered women kill their abusers there is usually a long history and pattern of violence in their relationship with the batterers. This raises the question of why battered women do not leave violent relationships earlier. Proponents of BWS maintain that these departures from the traditional expectations of self-defense law can be explained by the psychological dynamics involved in intimate violent relationships. These psychological dynamics may be introduced at trial, often with the testimony of an expert witness.
Another controversial application of BWS concerns its use to support the battered woman defendant’s contention that her employment of deadly force was reasonable. In some states, courts may accept the history of abuse and, in particular, the nature of that abuse, as important factors for understanding the reasonableness of the defendant’s belief in the need to use deadly force. In other states, the relevant comparison for judging the defendant’s actions is ‘‘a reasonable battered woman’’ rather than the ordinary reasonable person. These courts have responded to the concern of researchers who note that in deciding what is ‘‘reasonable,’’ traditional criminal law utilizes the ‘‘ordinary man’’ as its reference point, in which the assault typically occurs during a single violent episode and the assailant is often a stranger to the victim. This point of reference fails to fully capture the battered woman’s circumstance. The violence that the battered woman faces is continual and at the hands of an intimate partner rather than a stranger. Furthermore, the woman is generally not on equal physical grounds with the batterer, thus explaining why the force that the woman uses against her spouse usually involves the use of a deadly weapon.
The other major obstacle to achieving a claim of self-defense is that the lay public, from which jurors are chosen, may harbor misconceptions regarding the causes and effects of intimate partner violence. Jurors may believe that violence in the relationship fulfills the needs of each of the partners or that the woman defendant could have left her abuser if she truly objected to the abuse. Beliefs such as these may make it difficult for jurors to understand how a woman might have a perception of imminent fear. Although the law in most states does not require the defendant to attempt to escape from the situation or to leave the relationship earlier, the woman’s failure to do so may still influence the juror’s evaluations of the reasonableness of her actions. Jurors’ beliefs about intimate partner violence and the lack of fit between the woman’s actions and the existing laws of self-defense can make it difficult for the defense to establish that the woman’s behavior in killing her abuser was reasonable.
The Defense of Insanity
In some cases, battered women who kill their abusers will claim the defense of insanity. Battered women who claim an insanity defense allege that their mental capacity was impaired at the time of the criminal act, in contrast to a defense of self-defense, in which battered women claim that they acted in response to a reasonable perception of danger. This insanity defense is referred to legally as ‘‘defense of excuse’’ rather than a defense of justification. An excuse defense refers to situations in which the defendant doesn’t deny that she committed the crime, but rather states that she is not responsible for it, typically on grounds of lacking volition over her free will, as in the case of a claim of insanity. The defense of insanity requires that a defendant have a serious mental illness at the time of the criminal act. Furthermore, in most states, the legal standard for insanity is a narrow one, requiring that the defendant’s mental condition impaired her mental capacity to such an extent that she did not understand the nature and consequences of what she was doing or did not understand that what she was doing was wrong. This defense is used much less frequently in cases of spousal homicide than is the claim of self-defense, but when the condition of legal insanity is offered as a defense, testimony by experts can be offered to explain how BWS and its associated symptoms may have precluded the victim from knowing right from wrong or appreciating the consequences of her actions at the time of the criminal act.
Although BWS has been used to support a defense of insanity, critics argue that its use is misplaced because the extent to which the syndrome causes mental illness cannot be determined by clinicians and because BWS, as it was articulated by Walker, does not entail a loss of ability to understand the nature or consequences of what one is doing or the failure to appreciate right from wrong at the time the crime was committed. In addition some legal scholars claim that the use of BWS to support a defense of insanity creates judicial confusion because doing so suggests a biological/medical basis for the condition, rather than a social or behavioral basis. These critics also charge that this pathological view of BWS is further suggested when it is linked to PTSD. The pathological view stands in marked contrast to the view that battered women act in self-defense when they kill their abusers. Therefore, these critics assert that using BWS to support a claim of insanity argues against the idea that battered women’s actions are reasonable given their circumstances, and instead encourages courts to see them as helpless.
The Use of Expert Witness Testimony in Cases Involving Battered Women
In cases of spousal homicide, both the prosecution and the defense can present evidence of BWS in a variety of ways. The defendant can testify about her experiences as a battered woman, and both the prosecution and the defense can call witnesses to testify on their behalf. One of the most important kinds of testimony in cases of spousal homicide is the use of expert witness testimony. Expert testimony is legally defined as the opinion evidence of someone who possesses special skill or knowledge in some science, profession, or business which is not common to the average person and is possessed by the expert by reason of special study or experience. In cases of spousal homicide where the defense asserts a claim of self-defense or insanity, the expert typically used is a psychologist or psychiatrist. Both the prosecution and the defense can introduce expert witness testimony on battering and its effects in cases of spousal homicide. The defense utilizes expert witness testimony to support its claims of insanity or self-defense. It may also utilize expert witness testimony in conjunction with the sentencing phases of a trial as a mitigating factor to lessen the sentence the defendant will receive. The prosecution may use expert witness testimony in cases of spousal homicide to explain such matters as battered women’s lack of cooperation or recantation. The expert witness does not determine the ultimate issues, such as whether it was reasonable for the battered woman to believe that she was in imminent danger. Rather, the purpose of expert witness testimony is to provide the judge or jury with an alternative perspective for interpreting a woman’s actions. Specifically, the role of the expert witness is to provide information relevant to inferences they will have to make about the woman’s state of mind at the time of the killing, such as why she may have perceived herself to be in a situation of imminent danger, even if she was not under direct attack at the time of the killing.
The earliest case to consider the use of expert witness testimony regarding BWS was Ibn-Tamas v. United States, in 1979. Ibn-Tamas was married to a husband who beat her often and who had a history of violence toward women. While she was pregnant, her husband beat her; in response, she shot and killed him. She was charged with murder in the second degree and claimed self-defense. At trial a psychologist testified on her behalf on BWS. The trial judge refused to let the testimony be heard, stating that the victim/husband was not on trial. The Washington, DC, appeals court reversed the ruling and stated that an expert can testify where subject matter is beyond the understanding of the average layman. Since the Ibn-Tamas case, research indicates that the nature of the information that the expert conveys may vary in the extent to which it specifically addresses the defendant’s behavior. Much of this variation is explained by the laws in different states and the court’s interpretation of those laws concerning the introduction of expert witness testimony. In some instances, the court may allow the expert to explain the general research findings regarding battered women and to provide a clinical opinion on whether the woman on trial exhibits the syndrome. Typically, the expert is not permitted to offer an opinion on the woman’s perceptions at the time of the killing. In other instances, however, the expert has been allowed to offer evidence only about the general research findings regarding battered women, without offering an opinion as to whether the defendant fits the profile of a battered woman. In some cases, courts may refuse to permit such opinion evidence. In these latter instances, jurors are left to infer, on the basis of other trial testimony, whether the defendant exhibits BWS and whether the implications that derive from it apply to her behavior.
Legal Standards and Issues Concerning Expert Witness Testimony
Expert testimony on BWS must meet a number of legal requirements before the court decides to admit it as evidence. Clearly the testimony must be relevant to the issues or facts of the case, but in addition, expert testimony must satisfy three other criteria. First, the expert must be sufficiently skilled and qualified to testify about BWS. Typically the court determines whether the expert is qualified on the basis of the education and experience of the expert. Second, the proposed evidence must be deemed scientifically reliable. Third, the testimony must provide the jury with unique information that is beyond their common understanding of BWS and its effects. While the first criterion is a rather straightforward one, the second and third require additional explanation in terms of both the general legal standard and its applicability to situations involving the use of BWS in cases of spousal homicide.
There are no universal standards employed by courts to determine whether the basis upon which the expert testimony given in sufficiently reliable. For many years, the standard used by most courts was the Frye standard (Frye v. United States, 1923) which requires that the scientific validity of the evidence must be generally accepted by experts in the particular field of inquiry. However, more recently, federal courts and many state courts have employed the Daubert standard (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993). In Daubert, the Supreme Court ruled that in federal courts the Frye test had been superseded by the adoption, in 1973, of Rule 702 of the Federal Rules of Evidence, which provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the scientific, technical, or other specialized knowledge would assist the jury to understand the evidence or to determine a fact in issue. The Court emphasized that the testimony must be grounded in the methods and procedures of science. The Court concluded that evidence grounded in science could establish reliable evidence. Today, while all federal courts follow the Daubert standard, states are divided, with some following Daubert while others follow Frye.
Whether courts use the Daubert or Frye standard, the reliability of BWS evidence remains a controversial issue. Supporters point to the fact that BWS evidence has achieved considerable recognition within the legal and behavioral science community. The American Psychological Association (APA) has endorsed the validity of the syndrome in amicus briefs it filed in homicide cases of battered women. In the noted case of State v. Kelly, the APA concluded that the underlying theories used by the experts were well developed and well recognized, had previously been applied in other contexts, and had simply been adapted to the study of battered women (State v. Kelly, Amicus Brief, p. 255). In Kelly, the New Jersey Supreme Court held that the existence of battered spouse syndrome was relevant to the honesty and reasonableness of a woman’s claim that she believed she was in imminent danger of death or serious injury. Additional support is found in numerous cases in which courts have permitted testimony on BWS. A research report published in 1995 by the National Clearinghouse for the Defense of Battered Women (NCDBW) indicated that expert testimony on battering and its effects is admissible, at least to some degree, in each of the fifty states and the District of Columbia, though eighteen states had excluded expert testimony in some cases. Of the nineteen federal courts that had considered the issue, all but three had admitted testimony on battering and its effects in at least some cases. Expert testimony on battering and its effects was most readily accepted by state courts in cases involving traditional self-defense situations—that is, where a battered woman kills her spouse during a direct confrontation. The NCDBW report also found that a vast majority of states found expert testimony to be admissible to prove that the defendant had been a battered woman or that she suffered from BWS. Other findings include that nearly 70 percent of the states have found expert testimony relevant to supporting a self-defense claim and that nearly 70 percent of the states agree that expert testimony is relevant to the issue of the defendant’s state of mind at the time of the killing.
The findings and support for the reliability of BWS have been criticized on several grounds. The first critique concerns the two core components of the theory: the cycle of violence and the application of learned helplessness to battered women. These criticisms point to the fact that not all cases involving battered women contain a tension-building stage and a loving, contrite stage. Therefore, it appears from the data gathered on battered women that not all couples go through the cycle of violence articulated by Walker. Some research has also found little support for the applicability of learned helplessness to explain battered women’s behavior. This research points to the fact that the majority of women engage in a variety of responses in an attempt to end the abuse. More generally, critics point to the fact that the majority of research on battered women has been limited to clients of shelters for battered women who are not necessarily representative of all battered women.
A second criticism concerning the reliability of BWS concerns whether BWS is a diagnostic category. This issue surfaces when an expert wishes to go beyond describing the general characteristics of BWS and instead offers an opinion about whether the defendant actually suffers from the syndrome. As indicated earlier, BWS is not a diagnosable mental disorder, though some researchers have classified the BWS as a form of PTSD; therefore, the expert may have difficulty articulating a diagnosis and may be challenged by the prosecution if a diagnosis is offered. This criticism can be avoided if the expert describes only the dynamics and consequences of spousal abuse and the similarity between the woman’s actions and these phenomena without offering a diagnosis.
In addition to issues concerning the reliability of BWS, the major reason for permitting expert testimony is that it provides jurors with information beyond what is commonly understood. Researchers have questioned whether lay and expert opinions on this issue are significantly different from each other. Some research that compares the knowledge of experts and laypersons has found significant differences in their beliefs about BWS. For example, compared with the experts, laypersons are less likely to believe that a battered woman would be persuaded to remain in the relationship by the abuser’s promises in the loving, contrite stage. They were less likely to believe that using deadly force was the only way that women could protect themselves. Laypersons were also more likely to believe that battered women are abused because they are emotionally disturbed. Other research suggests that the general public has become more educated about domestic violence and BWS; therefore, the jury could be fairly well informed on these issues and not need the assistance of expert witness testimony.
BWS as a defense in cases of spousal homicide has gained wide acceptance but remains a controversial issue. Battered women who claim self-defense are more likely to be successful in using BWS to substantiate their claims in situations of direct confrontation with the batterer. In other situations, jurors are more likely to question the claim of self-defense. Battered women who kill their partners are less likely to use the defense of insanity because they must prove that they did not know what they were doing at the time or that what they were doing was wrong. Finally, the use of expert witness testimony concerning BWS can assist the jury in understanding the dynamics of domestic violence and its effects on battered women. However, some researchers and legal scholars remain skeptical about the admissibility of BWS as evidence at trial. These critics question whether BWS is a ‘‘syndrome’’ that can be accurately diagnosed in women who assert their battering experiences as explanations for spousal homicide.
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- Ibn-Tamas v. United States, 407 A.2d 626 (1979).
- State v. Kelly, 478 A.2d 364 (1984).