Beyond Battered Women’s Syndrome

2021 ◽  
Author(s):  
Sarah M. Buel
Keyword(s):  
Battered Women ◽  
Legal Theory ◽  
Gender Violence ◽  
Racial Justice ◽  
Feminist Jurisprudence ◽  
Legal Doctrine ◽  
Battered Woman Syndrome ◽  
Relevant Evidence ◽  
Self Defense ◽  
The Law

Feminist jurisprudence has amplified the voices of gender violence survivors long silenced by trauma and male-biased legal doctrine. In critiquing self-defense law’s treatment of survivors, some feminists pressed for recognition of a distinctive set of characteristics purportedly associated with survivors, termed “battered woman syndrome” (BWS). Intended to ameliorate the harsh effects of criminal law on survivors, BWS sought to explain why battered women responded as they did in terms that judges and juries might better relate to the legal requirements for self-defense. One argument is that the law of self-defense must be further recalibrated—beyond the problematic, operative lens of BWS—to better protect those who engage in survival crime. By instead utilizing “battering and its effects” as the framework for relevant evidence, the criminal justice system could become more responsive to survivors. Even beyond recalibrating the law of self-defense to better suit survivors, legal stakeholders can learn much from activists and feminist legal theory about pursuing gender and racial justice, by embracing diverse lenses to actually hear the raced, classed, and gendered narratives of survivors’ lives. Despite missteps with the development of BWS, feminist jurisprudence is gradually increasing understanding of, and empathy for, survival crime.

Why Psychoanalysis Matters to Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Lived Experience ◽  
Criminal Law ◽  
Legal Theory ◽  
Practical Knowledge ◽  
Individual Freedom ◽  
Human Beings ◽  
Legal Doctrine ◽  
Legal Rules ◽  
The Law ◽  
Theoretical Foundations

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

Legal Rules for Recovery

2001 ◽  
Author(s):  
Jessica W. Berg ◽  
Paul S. Appelbaum ◽  
Charles W. Lidz ◽  
Lisa S. Parker
Keyword(s):  
Informed Consent ◽  
Legal Theory ◽  
Medical Profession ◽  
Physician Behavior ◽  
Medical Decision ◽  
Legal Doctrine ◽  
Legal Rules ◽  
Judicial Remedy ◽  
The Law ◽  
Injured Patients

This chapter deals with the legal theory and procedural framework under which patients can obtain redress for their injuries resulting from treatment administered in the absence of informed consent. The evolution of the legal doctrine was driven by the demands of patients for redress for injuries, and more attention has been given by courts and legislatures to the questions of when and how compensation might be obtained than to providing guidance for clinicians. In some important respects, the distinction between the law as it applies to the physician engaged in medical decision making with a patient and the law as it applies to that same patient who later seeks compensation in the courts is an artificial one. Insofar as the spirit of informed consent is not embraced voluntarily by the medical profession, but is adhered to in large part to avoid the likely consequences of failure to observe the legal rules, physician behavior will be shaped not only by the rules themselves but also by the way they are enforced. If, for example, the rules governing the means of redress were complex, time-consuming, and unlikely to yield the desired compensation, few injured patients would pursue a judicial remedy. As a result, physicians would eventually realize that adverse consequences were unlikely to follow from a failure to observe the relevant rules and, except to the extent that they had accepted the ethical theory of informed consent, their adherence to the doctrine would crumble. Some critics of the present system contend that this has already happened (see Chapter 7). On the other hand, rules that make recovery easier and more certain would be likely to encourage compliance with the requirements for informed consent. Differential emphasis by the courts on particular kinds of lapses by clinicians might also shape their actions accordingly. For example, the courts’ focus on risk information has led many physicians to tailor disclosure to emphasize risks. Thus, the issues addressed in this chapter, although framed in legal terminology, are important (some would argue crucial) determinants of the ultimate impact of informed consent.

Feminist Approaches to International Law

1991 ◽  
Vol 85 (4) ◽  
pp. 613-645 ◽  
Author(s):  
Hilary Charlesworth ◽  
Christine Chinkin ◽  
Shelley Wright
Keyword(s):  
Legal System ◽  
Cultural Context ◽  
Legal Theory ◽  
Central Feature ◽  
Legal Analysis ◽  
Feminist Jurisprudence ◽  
The Law ◽  
Immediate Experience ◽  
Political Economic

The development of feminist jurisprudence in recent years has made a rich and fruitful contribution to legal theory. Few areas of domestic law have avoided the scrutiny of feminist writers, who have exposed the gender bias of apparently neutral systems of rules. A central feature of many western theories about law is that the law is an autonomous entity, distinct from the society it regulates. A legal system is regarded as different from a political or economic system, for example, because it operates on the basis of abstract rationality, and is thus universally applicable and capable of achieving neutrality and objectivity. These attributes are held to give the law its special authority. More radical theories have challenged this abstract rationalism, arguing that legal analysis cannot be separated from the political, economic, historical and cultural context in which people live. Some theorists argue that the law functions as a system of beliefs that make social, political and economic inequalities appear natural. Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more focused and concrete, however, and derives its theoretical force from immediate experience of the role of the legal system in creating and perpetuating the unequal position of women.

Undermining Reasonableness: Expert Testimony in a Case Involving a Battered Woman who Kills

2003 ◽  
Vol 27 (1) ◽  
pp. 37-45 ◽  
Author(s):  
Cheryl Terrance ◽  
Kimberly Matheson
Keyword(s):  
Battered Women ◽  
Expert Testimony ◽  
Battered Woman ◽  
Support Network ◽  
Post Traumatic Stress ◽  
Battered Woman Syndrome ◽  
Expert Control ◽  
Self Defense ◽  
Jury Verdicts ◽  
Post Traumatic

Student participants ( N = 316) viewed a videotaped simulated case involving a woman who had entered a self-defense plea in the shooting death of her abusive husband. As successful claims of self-defense rest on the portrayal of a defendant who has responded reasonably to his/her situation, the implications of various forms of expert testimony in constructing this narrative were examined. Jurors were presented with either expert testimony regarding the battered woman syndrome (BWS), the BWS framed within post-traumatic stress disorder (PTSD) nomenclature, or a no-expert control condition. As the BWS classification may support a stereotypical victim, the degree to which the defendant fit the stereotype in terms of her access to a social support network (family, friends, employment outside of the home) was varied within the expert testimony conditions to reflect either a high or low degree of stereotype fit. Although jury verdicts failed to differ across expert testimony and stereotype fit conditions, perceptions of her credibility and mental stability did. Although affording jurors a framework from which the defendant's experiences as a battered woman may be acknowledged, this portrayal, as advanced within PTSD nomenclature, endorsed a pathological characterization of the defendant. Implications of this discourse for battered women within the context of self-defense are discussed.

scholarly journals The Battered Women’s Syndrome: A History and Interpretation of the Law of Self-Defense as it Pertains to Battered Women who Kill their Husbands

2007 ◽  
Vol 3 ◽  
Author(s):  
Christina L England
Keyword(s):  
Battered Women ◽  
Expert Witness ◽  
Historical Analysis ◽  
Psychological Theory ◽  
Criminal Court ◽  
Court Cases ◽  
Witness Testimony ◽  
Expert Witness Testimony ◽  
Self Defense ◽  
The Law

This paper seeks to address the role of the battered women’s syndrome in criminal court cases where battered women have killed their husbands in self-defense. A historical analysis of law pertaining to domestic relationships and violence reveals the male biases imbedded in the law and the obstacles women face in seeking equality and justice in the legal system. After a brief description of the development of self-defense law and Lenore Walker’s “battered women’s syndrome”, court cases starting mostly from the mid-1970’s during the second wave of the women’s movement are examined. Legal criteria for self-defense are then analyzed along with important precedents that trace the emergence through a series of court cases of legal opportunities to use this psychological condition to support pleas for self-defense. In addition, important precedents are studied that have been made over the past few decades permitting expert witness testimony in the courtroom to explain this psychological theory as it pertains to the case. The latter part of the paper deals mostly with controversies surrounding the use of the battered women’s syndrome in the courtroom and the current state of self-defense law. I conclude with a proposal for reformation of expert witness testimony and for redefining legal terms in the criteria for self-defense.

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