Battered Woman Syndrome: Prospect of Situating It Within Criminal Law in India

In patriarchal cultures, like the one prevalent in India, rigid, polarised and hierarchical gender roles work to establish a strong normative relationship between gender and the treatment of offenders committing violent crimes such as homicide. While most of the common law countries have already undergone a social change towards making their criminal laws more gender-sensitive by accommodating the experiences of battered women, the situation in India is quite different. Indian courts have recognised Battered Woman Syndrome very recently in only three cases, much differently than courts in other jurisdictions. While in other countries, Battered Woman Syndrome has been adduced by the advocates of battered women to support defence pleas, Indian Courts have resorted to it only to explain the effects of a battering relationship. The fact that Battered Woman Syndrome has only been recognised in such a small number of cases and the lack of scholarship in this particular area clearly resonates the resistance of the Indian criminal law towards women’s accounts of their experiences. Drawing on the example of the three cases, the author makes an attempt to put forth feminist legal arguments and offer a fresh perspective on the possibility of using Battered Woman Syndrome as a defence to address the concerns of battered women who end the cycle of violence by ending the lives of the abuser in a “kill or be killed” situation. Since Battered Woman Syndrome as a subject has been extensively researched in other common law countries, the present study limits itself to the Indian jurisdiction only. This paper also challenges the effectiveness of the existing defences under the Indian Penal Code, 1860 in accommodating the cases of battered women, and highlights the need for the introduction of a new justificatory defence as a plausible solution.

Beyond Battered Women’s Syndrome

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.

متلازمة المرأة المعنفة لدى عينة من النساء العراقيات في بغداد

إن التقدم العلمي والتكنولوجيا يسَّر الكثير من الأمور على الأفراد، إلا أن ضغوط الحياة قد ازدادت، وازدادت معها الأعباء التي تقع على كاهل الفرد . وإن هناك فروقاً فردية بين الأفراد، فكل فرد يستجيب لما يتعرض له من مواقف وصعوبات بصورة تختلف عن الفرد الآخر ، فقد تظهر لدينا سلوكيات إيجابية في التعامل مع الصعوبات والخلافات الأسرية. وتظهر سلوكيات أُخرى سلبية للتعبير عن الغضب أو الانزعاج مما يتعرض ملحقاً اضراراً مادية، ومعنوية بأعز الناس عليه، زوجته وأولاده أو اخته أو حتى أمه. الدراسة الحالية تسلط الضوء على مفهوم متلازمة المرأة المعنفة Battered woman syndrome، الذي يصف الاستجابة النفسية للمرأة التي تتعرض للإساءة والتعنيف على يد الرجل ، وتعد لدى بعض الباحثين نوع من السلوك المصاحب لاضطراب ما بعد الصدمة . هدف البحث الحالي إلى: التعرف على نسبة انتشار متلازمة المرأة المعنفة . التعرف على متلازمة المرأة المعنفة لدى النساء المعنفات . وبعد معالجة البيانات احصائياً باستعمال الاختبار التائي لعينة واحدة ، ومعامل ارتباط بيرسون ووسائل احصائية أُخرى توصلت الباحثة إلى النتائج الآتية: إن نسبة انتشار متلازمة المرأة المعنفة 27.17% وهي أعلى من بقية بعض المجتمعات عند مقارنتها مع الدراسات الأُخرى . تعرض أفراد العينة إلى العنف الأمر الذي يؤدي إلى دخولها في دورة العنف . وفي ضوء هذه النتائج قدمت الباحثة مجموعة من التوصيات والمقترحات لإجراء بحوث مستقبلية.

Battered woman syndrome and PTSD in women who kill their abusing partner: a study in medical jurisprudence

AimsThe aim of the study was to identify any symptoms or features of Battered Woman Syndrome (BWS) or Post-traumatic Stress Disorder (PTSD) that may be associated with, or explain, abused women killing their abuser; and the extent to which such identified symptoms or features have been deemed, or are potentially relevant, to past and now reformed partial defences to murder in English law. Hence two sub-studies were completed.MethodThe first sub-study identified mental symptoms of BWS or PTSD apparent in battered women who kill their abuser; achieved by identifying relevant research papers, through applying a ‘rapid review’ approach to three databases: PubMed, PsychInfo and PsychArticles. The second sub-study identified by legal research reported Court of Appeal (CA) judgments on women appealing their conviction of the murder of their abusive partner. It then analysed the legal approach taken towards evidence of the effects of abuse upon these women before and after relevant statutory law reform (although no CA cases were identified post-reform).ResultThe first sub-study identified and reviewed six symptoms or features, within three quantitative and three qualitative studies, that appeared to be associated with, or described by, abused women killing their abuser. These included helplessness, symptoms associated with PTSD, plus fear, isolation, experience of escalation of violence and cycle of violence. From the CA cases the perpetrators of killings that occurred prior to 04.10.2010 (the date of law reform) were usually successful in having their conviction overturned based upon diminished responsibility; but not provocation, because of the requirement of ‘sudden loss of self control’. ‘Loss of control’, which replaced provocation, appears highly likely to be capable of reducing murder to manslaughter based upon symptoms of BWS, or PTSD. However, the amended defence of diminished responsibility is likely to exclude evidence of BWS, but allow evidence of PTSD, because of its requirement of the defendant suffering from ‘a recognised medical condition’.ConclusionThis study demonstrated particular symptoms or features of BWS or PTSD associated with abused women killing their abusers plus their very different relevance to two partial defences to murder, pre and post law reform.

Mujeres abusadas que matan

This paper analyzes the exclusion of responsibility in cases of battered women who kill their abusive partners in self-defence, emphasizing the theoretical and practical difficulties from a gender lens. I investigate self-defence simultaneously from a double perspective: the perspective of intimate partner violence, and the perspective of Canadian law. I reflect on alternative solu-tions in cases where there was a deferred self-defence, seeking a more equitative response from institutions. Self-defence protects whoever kills another person to defend herself or a third party. Even though this legal figure seems unquestionable, it is actually an ambiguous area in criminal law. Women who are abused for extended periods of time, who one day kill their abu-sers, generally do not do so during a context of physical confrontation. In this paper, instead of merely restricting my analysis to the events that occurred on the day of the abuser’s death, I will go back in time to scrutinize in detail the cycle of systematic violence and the “battered woman syndrome”, as well as the theory of “coercive control” in the Canadian context. I draw from the famous Canadian case Rust v. Lavallee (1990). I problematize some of the requirements for self-defence, emphasizing their inability to respond to the realities of battered women. This research shows a problematic disconnect between the current legal framework and the realities of violence against women.

Not Today, Old Man

‘Not Today, Old Man’ was written to the journal’s call-out theme ‘Tropical Gothic’. Informed by these ideas and a long tradition of women’s writing from Austen to Atwood, ‘Not Today, Old Man’ interrogates the relationship between women and violence.Throughout most of the twentieth century, ongoing abuse of women in a domestic environment was not considered a mitigating factor in violent action performed against the perpetrator, or indeed ‘self-defence’, unless taken at the time of attack. Unable to physically shield themselves from their abusers, and without a legal defence should they seek to protect themselves outside the temporal boundary of a violent attack, women were in a sense imprisoned within these relationships. In the comparatively rare instance that a woman was the perpetrator of domestic violence, ‘Battered Woman Syndrome’ was not available for defence in the context of Australian provocation law until the end of the twentieth century (see R v Kontinnen 1991; R v Runjanjic 1992). It is worth considering that in this same era, a man making unwelcome sexual advances to another man was considered reasonable grounds for ‘self-defence’ (R v Green 1997).The landscape in ‘Not Today, Old Man’ is predominantly set in the tropics, but the story also alludes to the diversity of countryside and climate within Australia, both in the text itself and through allusions to authors like Gerald Murnane. The dark undertones of the piece are embedded in the depiction of these landscapes and the images they evoke. The oppressive heat, humidity, and comparatively low population of Australia’s tropical regions lends itself to gothic exploration. This dark undertone was modelled on writers like David Malouf, whose fiction and poetry have been significant in endowing Australia with a sense of mythology associated with its Northern environments. As Malouf has explained, re-mythologizing the postcolonial Australian landscape gives its diverse inhabitants a renewed, ‘symbolised place’ to ‘exist in’ (cited in Mulligan & Hill, 2001, p.110).

Battered woman syndrome: updating the expert checklist

The aim of this article is to examine the current state of the battered woman syndrome (BWS) defence in Canada and propose an update to the list of factors considered by experts evaluating the applicability of the defence to individual cases. The history and current legal definition of the defence are presented, and theories relating to BWS are summarized. Factors required of expert testimony in BWS cases are presented; cases relevant to the development of the defence that highlight these assessment factors are discussed. In a subsequent section, limitations of the defence and the role of the expert are explored. The PTSD Checklist (used in clinician diagnosis) is summarized before an updated, BWS-specific expert checklist is proposed. The updated checklist proposes six elements to be considered by an expert assessing a BWS case: 1. environmental factors, 2. attempts to leave or alter the situation, 3. risk factors of the abuser, 4. risk factors of the victim, 5. triggers for violence, and 6. contrary evidence. It is hoped that using this checklist will help experts to cover all the essential elements they must consider in order to conclude that a woman satisfies the criteria for BWS. In particular, this updated checklist will help experts to prepare comprehensive testimony that addresses the five issues defined by Justice Wilson as the expert’s duty to assess. In addition, this checklist will help experts present a firm foundation for a defence regarding the critical question of why the night of the offence was different from all other nights.

Diminished Capacity

Chapter 24 describes cases that have played an important role in establishing reduced culpability by criminal defendants. People v. Patterson involves mitigation defense called Extreme Emotional Distress (EED), Ibn-Tamas v. U.S. involves evidence of Battered Woman Syndrome to reduce culpability, and the final two cases, People v. Saille and Montana v. Egelhoff involve voluntary intoxication.