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Criminal defenses
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The battered woman defence is a formal term of art forming the basis of a legal defence representing that the person accused of an assault or murder was suffering from battered person syndrome at the material time. Because the defence is almost invariably invoked by women, it is usually characterised in court as battered woman syndrome or battered wife syndrome. Although the medical condition is not gender specific, the law has been persuaded to remedy perceived gender bias in the operation of the defence of self-defence by admitting evidence of the medical condition. Thus, this is a reference to any person who, because of constant and severe domestic violence usually involving physical abuse by a partner, becomes depressed and unable to take any independent action that would allow him or her to escape the abuse. The condition explains why abused people often do not seek assistance from others, fight their abuser, or leave the abusive situation. Sufferers have low self-esteem, and often believe that the abuse is their fault. Such persons usually refuse to press charges against their abuser, and refuse all offers of help, often 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 conditions severe enough to excuse alleged offenders. Nevertheless, the law makes reference to a psychological condition (as ICD9 code 995.81 Battered person syndrome NEC [1] or otherwise included within DSM-IV as a sub-category of post-traumatic stress disorder), even though neither medical classification as currently drafted, includes the syndrome in the sense used by lawyers.


The term "battered woman syndrome" was coined by American feminist and psychologist Lenore Walker. In 1978-1981 she interviewed 435 female victims of domestic violence. She concluded that the violence goes in cycles. Each cycle consists of 3 stages:

  • Tension building stage, when a victim suffers verbal abuse or minor physical violence, like slaps. At this stage, the victim may attempt to pacify the abuser. However, the victim's passivity may reinforce the abuser's violent tendencies.
  • Acute battering incident. At this stage, both perceived and real danger (of being killed or seriously injured) is maximal.
  • Loving contrition. After the abuser discharged his tension by battering the victim, his attitude changes. He may apologize for the incident and promise to change his behaviour in the future.

Walker used the Martin Seligman's theory of learned helplessness to explain why many battered women do not leave their abusers. In Seligman's experiments, dogs repeatedly suffered electric shocks without being able to escape them. After this, they did not attempt to escape a shock even if they had such a possibility. According to Walker, females who are repeatedly battered produce similar psychological responses.


Unlike other disorders, this represents a diagnosis for both victim and abuser, because it relies on the behaviour and psychological characteristics of both parties. Critics claim that Walker's theory does not explain the killing of abusive partners. If a battered female suffers from learned helplessness, she would, by definition, behave passively (Griffith: 1995) with the suggestion that the model of a battered spouse as a "survivor" proposed by Gondolf (1988) might be more realistic. Killing abusive partners is not passive behaviour, so it contradicts, rather than supports, Walker's theory. Nor is the killing of abusing partners consistent with Walker's theory of "cyclical violence". McMahon (1999) and Warren (2002) argue that Walker's research methodology was suspect in that she selected a narrow group of victims in her original study, all of whom were American heterosexual females, most of them Caucasian, and most of them from similar socio-economic backgrounds, the data on perpetrators was provided from the victim's perspective only, and there was no control group. Finally, Walker's study has never been replicated. Indeed, Dutton & Painter (1993) and others have failed to find any evidence of the cycle of behaviour as predicted by Walker's theory.

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 recognised that this evidence may support a variety of defences to a charge of murder or to mitigate the sentence if convicted of lesser offences:

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

The Australian case of Osland v The Queen (1998) HCA 75, demonstrates the gender bias of self-defence. Heather and David were both charged with murder for the killing of Frank Osland who had physically, sexually and psychologically abused them for 13 years. David who struck the fatal blow was acquitted on the basis of self-defence while Heather was convicted for murder and sentenced to 14 and a half years in prison. The court describes the relevant research on battered wife syndrome and its significance as follows (at para 54):

The evidence of Dr. Byrne was that there is a reliable body of knowledge and experience with respect to persons living in abusive relationships based on research initially undertaken in the United States of America by Dr. Lenore Walker. And it was Dr. Byrne's evidence that that knowledge reveals a pattern of responses or reactions on the part of battered women…. Certain of those responses are contrary to what an ordinary person might expect. For example, an ordinary person would very likely reason that, if the woman concerned did not report the violent and abusive behaviour or stayed in the relationship, it was not one involving violence or abuse... or, at least, not violence or abuse of the severity claimed.


The landmark decision on "battered woman syndrome" in the Supreme Court of Canada is R v Lavallee (1990) 1 SCR 852 (SCC). In this case, the court took into account the experiences, background, and circumstances of the accused to determine whether she actually believed that:

  • she was at risk of serious bodily harm or death,
  • she had to use force to preserve herself, and
  • whether those beliefs were reasonable.

On October 4, 1995, Minister of Justice Allan Rock commissioned a review by Judge Ratushny of the law of self-defence as applied in a total of 98 cases involving battered women. The resulting Review recommended that three of the women be granted free pardons on the ground that "no reasonable jury would convict her in the face of the evidence before me". Three other women had been provoked into killing and, in two cases, the women were resisting sexual advances by their respective victims when they killed them. In the other case, the Review found that the applicant had been subject to verbal and physical abuse at the hands of her victim, and that he had sexually assaulted her on the day she killed him. As a result of the Review, the Royal Prerogative of Mercy was invoked for four of the women, and the Minister of Justice exercised authority under s690 Criminal Code for a fifth. There have been a number of cases following the Review including R v Malott (1998) 1 SCR 123 (SCC) [2]. The legal problem is to determine whether a person's actions are reasonable. It is customary to adopt a reasonable person test but the fairness of the test may be skewed by decisions on which characteristics and life experiences should be incorporated into the knowledge base. The Canadian courts have held that the common sense assumptions made by jurors on spousal abuse may be erroneous and, therefore, expert opinion about the social context of abused spouses should be taken into account in factual determinations. However, there is still a marked lack of success and most female defendants feel obliged to plead provocation.

English law

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 self-control, 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 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 is also irrelevant. In AG's Reference (No.24 of 2003) (2003) EWCA Crim 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.

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 cumulative provocation experienced by the defendant. Finally, on the related condition, R v T (1990) Crim. LR 256 offered clinical evidence of post-traumatic stress disorder after a rape three days earlier to explain an armed robbery which involved her stabbing her victim and reaching into the victim’s 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. For more detail, see automatism (case law).


The Law Commission Report on Partial Defences to Murder (2004) [3] Part 4 (pp78/86) 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 psychiatrsts 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.


In Australia, self-defence might be considered the most appropriate defence to a charge of murder for a woman who kills to protect her life or the lives of her children in a domestic violence context. It is about the rational act of a person who kills in order to save her (or his) own life (see Osland v The Queen [1998] HCA 75 (10 December 1998)[4]). But the lack of success in raising self-defence in Australia for battered women has meant that provocation has been the main focus of the courts (see Battered Women and Self Defence [5]). In 2005, based on the Victorian Law Reform Commission's Defences to Homicide: Final Report [6], the Victorian government announced changes to the homicide laws in that state, which are intended to address this perceived imbalance. Under the new laws, victims of family violence will be able to put evidence of their abuse before the court as part of their defence, and argue self-defence even in the absence of an immediate threat, and where the response of killing involved greater force than the threatened harm.[7]

New Zealand

In R v Fate (1998) 16 CRNZ 88 a woman who had come to New Zealand from the small island of Nanumea, which is part of the Tuvalu Islands received a two year sentence for manslaughter by provocation. Mrs. Fate spoke no English and was isolated within a small close-knit Wellington community of 12 or so families so she felt trapped in the abusive relationship. Similarly, The Queen v Epifania Suluape (2002) NZCA 6 (21 February 2002)[8] deals with a wife who pleaded provocation after killed her husband with an axe when he proposed to leave her for another woman. There was some evidence of neglect, humiliation, and abuse but the court concluded that this was exaggerated. On appeal, the court was very conscious of the Samoan culture in New Zealand in restricting the power of the wife to act independently of her husband and reduced her sentence for manslaughter to five years. The helpful Report of the New Zealand Law Commission examines not only violence by men against women, but also violence by women against men and in same-sex relationships.


Given that men tend to be physically larger, stronger and culturally predisposed to use violence, a woman who is threatened by a man cannot afford to wait until the danger is immediate and then only use her hands as the proportionate response to fists when a physical assault is underway since she will likely be killed or suffer grievous bodily harm. This is why women in long-term abusive relationships often use a weapon when the man is asleep or otherwise at a disadvantage. Such a rational approach falls outside self-defence as most usually defined and a resulting homicide will be described as pre-meditated at trial with the use of a weapon an aggravating factor. Nevertheless, more judges are prepared to admit evidence about abusive relationships and to mitigate sentencing. Despite this, self-defence has proved difficult to invoke, possibly because success would result in an acquittal which may be difficult to accept since the woman was solely responsible for the intentional death of another person.

The clinical psychologist Dr. Lenore E Walker coined the term "battered woman" when proposing a cycle theory of violence based on her empirical study of 400 battered women. The Supreme Court of Canada quoted her summary of the typical cycle of violence in Lavallee (at p879a):

This tension reduction theory states that there are three distinct phases associated in a recurring battering cycle: (1) tension building, (2) the acute battering incident, and (3) loving contrition.

When the abuse occurs in cycles, it acquires a degree of predictability. In Lavallee (at p880):

Another aspect of the cyclical nature of the abuse, is that it begets a degree of predictability to the violence that is absent in an isolated violent encounter between two strangers. This also means that it may in fact be possible for the battered spouse to accurately predict the onset of violence before the first blow is struck.

This is problematic if the individual wishes to invoke self-defence because the laws in most most jurisdictions require that the defendant retreat in anticipation of the attack and generally demonstrate a clear intention not to fight. The failure to end the relationship and leave the abusive person, or to run away when immediately threatened represents a diffucult legal hurdle to overcome.

Repeated instances of violence enable battered women to develop a continuum along which they can 'rate' the tolerability or survivability of episodes of their partner's violence. Thus, signs of unusual violence are detected. For battered women, this response to the ongoing violence of their situations is a survival skill. Research shows that battered women who kill experience remarkably severe and frequent violence relative to battered women who do not kill. They know what sorts of danger are familiar and which are novel. They have a myriad opportunities to develop and hone their perceptions of their partner's violence. And, importantly, they can say what made the final episode of violence different from the others: they can name the feature of the last battering that enabled them to know that this episode would result in life-threatening action by the abuser. (at p881)

As the laws are currently defined, this is more indicative of a situation in which provocation could be the defence. In a cycle of repeated violence, the woman may reach the point of the "straw that breaks the camel's back", i.e. the latest act of abuse that finally provokes the response. This need not be inherently more severe than any other incident, but simply one act of abuse too many. But, if the battered woman has reasonable grounds for believing that her life is in immediate danger, self-defence would be the preferred defence. Further, a mistake as to the degree of force necessary to provide effective self-defence would offer additional exculpatory weight when excessive force has in fact been used. In Malott, Justice L'Heureux-Dubé said that expert evidence was admissible and necessary, "in order to understand the reasonableness of a battered woman's beliefs, which in Lavallee were the accused's perceptions that she had to act with deadly force to save herself from death or grievous bodily harm." (at para 36) The difficulty is that the two defences are mutually incompatible. A defendant cannot be both provoked into an out-of-control retaliation causing death and simultaneously be using no more force than is reasonably believed necessary in her own defence.

The U.S. Department of Justice concludes in its Report (at p38) that the continued use of the term "battered woman syndrome" is imprecise and it may be that some battered women suffer from post-traumatic stress disorder. The New Zealand Law Commission explains the relationship between the forensic psychiatrists and the clinical psychologists on this point (at para 1.12) as:

due to a misunderstanding as to the definition of “battered woman syndrome”. The forensic psychiatrists were defining “battered woman syndrome” as the battering cycle, while the clinical psychologists were defining it, as Dr. Walker does, as that form of post-traumatic stress disorder that exists after a woman has been in a violent relationship.

The question of whether the battered woman might be suffering from a "disease of the mind" for the purposes of the M'Naghten Rules or an "abnormality of mind" for the purposes of diminished responsibility is more difficult. The abuser is an external factor when the initial relationship is being formed but, over time, the partner's response to the abuse may produce verifiable mental illness or disease. Folie à deux has been accepted as a delusional state (R v Windle (1952) 2 QB 826) and there would seem little difficulty in a court concluding that a partner's responsibility has been impaired by the continued abuse so long as expert medical testimony confirms the reality of the condition and the evidence of the cycle of abuse as a cause is credible. Dr. Walker adopted the theory of "learned helplessness", originally developed by Martin Seligman to explain depression. According to Walker, women find it difficult to leave a battering relationship because they fail to see or act on opportunities to escape from the violence. Justice L'Heureux-Dubé commented in Malott:

By emphasising a woman's 'learned helplessness', her dependence, her victimisation, and her low self-esteem, in order to establish that she suffers from 'battered woman syndrome', the legal debate shifts from the object of rationality of her actions to preserve her own life to those personal inadequacies which apparently explain her failure to flee from her abuser. Such an emphasis comports too well with society's stereotypes about women. Therefore, it should be scrupulously avoided because it only serves to undermine the important advancement achieved by the decision in Lavallee.

There are other elements in a woman's social context which help explain her inability to leave her abuser, albeit within the traditional stereotypes. As Wilson J. recognised in Lavallee (at p 887):

environmental factors may also impair the woman's ability to leave... lack of job skills, the presence of children to care for, fear of retaliation by the man, etc. may each have a role to play in some cases.

Similarly, a woman may also need to protect her children from abuse, fear losing custody of her children, experience cultural pressures to keep the family together, be prejudiced by weaknesses of social and financial support for battered women, and find no guarantee that the violence will cease simply because she leaves. All of these considerations are necessarily significant when judging the reasonableness of a woman's beliefs whether there are alternatives to the use of deadly force to preserve herself from death or grievous bodily harm. See Ferreira, Chilambo & Koesyn v State (2003) Heads of Argument in the Supreme Court of Appeal of South Africa [9].

Another explanation for the failure of battered women to leave their violent relationships is based on the phenomenon of "traumatic bonding" or "Stockholm syndrome" that occurs between hostages and captors, battered children and their parents, concentration camp prisoners and guards, and batterers and their partners. But all of these explanations are pathologising, medicalising, and reinforcing notions of women as passive victims. It has also been argued that the syndrome was constructed from the experiences of white, middle-class women and may misrepresent the experiences of other women (Stubbs & Tolmie). Presenting women as victims in this way can make it difficult for juries and judges to understand their use of lethal self-help. It has been a problem for women using the "battered woman syndrome" to assist with a defence of self-defence (or provocation) that they 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. Indigenous women and women from non-English speaking backgrounds may be further disadvantaged in this regard (see The Women Who Kill in Self-Defence (1998)[10])

External links

U.S. materials and bibliography [11])


  • American Bar Association Commission on Domestic Violence. Bibliography Archives.[12]
  • Downs, Donald Alexander, (1996) More Than Victims: Battered Women, the Syndrome Society, and the Law (Morality and Society Series) Chicago: University Of Chicago Press. ISBN 0226161595
  • Dutton, D. G. & Painter, S. (1993) "The battered woman syndrome: effects of severity and intermittency of abuse". American Journal of Psychiatry Vol. 63(4): pp614-622.
  • Gillespie, Cynthia K. (1990) Justifiable Homicide: Battered Women, Self Defense, and the Law Ohio: Ohio State University Press. ISBN 0814205216
  • Gondolf, E. F. (1988). Battered Women as Survivors: An Alternative to Treating Learned Helplessness. Lexington, Mass.: Lexington Books.
  • Griffith, M. (1995). "Battered woman syndrome: a tool for batterers?" Fordham Law Review. Vol. 64(1): pp141-198.
  • Nicolson, Donald & Sanghvi, Rohit. Battered Women and Provocation: The Implications of R v Ahluwalia. (1993) Crim. LR 728.
  • Maguigan, H. (1991). "Battered Women and Self-Defence: Myths and Misconceptions in Current Reform Proposals", University of Pennsylvania Law Review, 140(2): 379-486.
  • McMahon, M. (1999) "Battered women and bad science: the limited validity and utility of battered woman syndrome". Psychiatry, Psychology and Law, Vol. 6(1): pp 23-49
  • Noonan, S (1996). "Battered Woman Syndrome: Shifting the Parameters of Criminal Defences (or (re)inscribing the Familiar?)" in Bottomely, A (ed) Feminist Perspectives on the Foundational Subject of Law, London: Cavendish.
  • Peterson, Christopher; Maier, Steven & Seligman, Martin. (1993) Learned Helplessness: A Theory for the Age of Personal Control, Oxford: Oxford University Press.
  • Ratushny, Lynn. Self Defence Review: Final Report to the Minister of Justice and Solicitor-General of Canada (11 July 1997)[13]
  • Report of the New Zealand Law Commission on Some Criminal Defences with Particular Reference to Battered Defendants, report 73 (May 2001) [14]
  • Stubbs, Julie & Tolmie, Julia. Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome (1999) MULR 27.
  • US Department of Justice The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act (May, 1996) [15]
  • Walker, Lenore E. (1979) The Battered Woman. New York: Harper and Row.
  • Warren, L. (2002). "The indigent defendant's toolbox: debating the addition of the battered woman syndrome expert". University of Chicago Law Review Vol. 69(4): pp2033-2055

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