Battered Women's Syndrome: Help Or Hindrance?

Most activists and advocates for battered women have considerable misgivings about BWS, and both Justice For Women and SBS (Southall Black Sisters) - the groups who have supported many of the women in the recent high profile British cases - have stated these concerns publicly.

Lawyers frequently ask if there is a 'syndrome' or very specialised research evidence which will demonstrate a particular point. Both requests make us uncomfortable, since they rest on medicalising and particularising what is an extremely common social event; the use of physical and sexual violence by men against women and children. We are however, aware of the tensions for lawyers and campaigners, who wish to find a strategy which will 'make a difference' in current cases. Just because a strategy may be successful in a particular case is not sufficient reason for refusing to look critically at the wider implications and potential unintended consequences of its widespread adoption.

Current Knowledge about Domestic Violence

Margo Wilson and Martin Daly's work on domestic homicide has used data sets from a number of industrialised countries. One of the most important findings from their research is that leaving is actually the most dangerous thing women can do. Women have always known this, it is professionals who have taken an extremely long time to understand that well-founded fear is one of the most potent reasons why women do not leave violent men.

The foundedness of this fear is underlined by the failure of other agencies to intervene either at all, or in ways which create meaningful protection. Jalna Hanmer's research in West Yorkshire revealed that women made between 12 and 25 agency contacts before receiving meaningful help. Despite policies and Home Office circulars police still only arrest in 13-20% of domestic violence cases (Grace, 1995). The latest publication regarding child protection for the Department of Health (DOH, 1995) reports that in a third or more of current cases domestic violence is a noted issue, but that intervention seldom addressed it directly, and that these cases had the worst child protection outcomes.

Domestic Homicide

Accurate official data on women who kill is, as Celia Wells (1994) has pointed out, difficult to access and incomplete. She presents information on 200 women charged between 1984-92: 46 were acquitted (14 on self-defence); a further 98 were found guilty of manslaughter (43 on diminished; 29 provocation; 26 other grounds); 38 were found guilty of murder and the outcomes were unknown in 55 cases. She notes that women were more likely be acquitted or receive a manslaughter verdict than men, but that this does not mean that are no gendered injustices in the legal process.

A conviction for murder means two things - a label and a mandatory life sentence. The much promoted abolition of the life sentence would only address the second point, and would not necessarily create justice for women convicted of murder, since the tariffs given by judges for many women have been at the higher end of the scale.

Studies of women who kill (Browne, 1987; Jones 1 991) in the US have found that they have in the main experienced repeated and life threatening violence, with a greater frequency of coerced sex. Almost all the women had also attempted to leave and elicit the support of other agencies in their struggles to end violence. Nothing they have attempted has stopped the violence, and many talk of reaching a point where they believe only one of them can survive.

What is of crucial importance here are the examples of locations such as Quincy, Massachusetts where co-ordinated and determined law enforcement approaches to domestic violence have prevented domestic homicides. The deaths of men and women are preventable if domestic violence is taken seriously, and that ought to be our primary goal. Creating appropriate defences for women who kill in desperation is a damage limitation rather than a prevention strategy.

Battered Women's Syndrome

In this model battering comprises three repetitive cyclical phases: tension building; an acute phase in which the assault occurs; and the contrite reaction, rather distastefully called the 'honeymoon' phase. The repetition of this cycle over time, linked to the undermining of women's self-belief create a situation of 'learned helplessness' whereby the woman feels "trapped in a deadly situation" in which she may fight back with lethal consequences. Learned helplessness, as I am sure many of you know, was conceptualised following experiments by Seligman using caged dogs which were administered random electric shocks. They eventually gave up trying to escape and attempted to adapt to the situation. They did not try to escape even when it was made easy.

For BWS to apply a woman must have been through this cycle at least once, and a cluster of symptoms develop through which the syndrome can be diagnosed. These include: low self-esteem, self-blame, anxiety, depression, fear, suspiciousness and loss of belief in the possibility of change. BWS is recognised in DSM as a formal clinical syndrome within PTSD (post traumatic stress disorder).

Application in British cases and other jurisdictions

It can potentially be used in two contexts. Firstly as evidence of an 'abnormality in mind' in relation to diminished responsibility; secondly as evidence of the characteristics which can be used to assess the reasonableness of action within a provocation defence. It was argued in this later sense in Kiranjit Ahluwalia's appeal, and in the judgement there was a recognition of the potential relevance of such evidence, although it was arguments regarding endogenous depression which won the appeal on grounds of diminished responsibility.

BWS was first reported being used in the case of Sally Emery, who was charged with her male partner of killing their child. She was still sentenced to four years for failure to protect. Sandra Horley (1995) has recently distanced herself from BWS, but has in fact appeared as an expert witness regarding it, in criminal cases not involving murder charges and in civil litigation.

BWS has been most utilised and reported in the USA. In the early 1980s there were many challenges to its generalisability and scientific credibility. The New Jersey Supreme court was one of the first to rule expert testimony was acceptable in 1984, and since that time but it has been increasing recognised by state appeal courts. Cynthia Gillespie (1989) cites a study 29 US cases where BWS was used, only 9 resulted in acquittals. Leonore Walker has now appeared in countless cases as expert witness. An interesting aside, is that she was an advisor to the defence in the OJ trial. She did not give evidence, perhaps because the prosecution had its own advisor, Mary Ann Dutton, who would have very publicly questioned some of the precepts of BWS.

The language in many of the US cases shows that courts understand BWS as a new and excusable form of female irrationality (Gillespie, p180). Alarmingly BWS is increasingly being used in criminal and civil cases to establish bona fide battered women. If women do not fit the model then it is being argued that they were not in fact abused. Phyllis Crocker has recently argued that in the US women are being increasingly trapped between two sets of stereotypes.

The leading case in Canada is that of Lavallee which was heard in 1989 by the Supreme Court. The woman shot her husband in the back during a violent incident, and her plea of self-defence was accepted on appeal, BWS evidence presented to the point that she was "one who could not escape and saw no options for survival". Judge Wilson made some telling and important points in her judgement: that women's actions had to be judged in the context of her reality. "It is not for the jury to decide to pass judgement on the fact that the accused stayed in the relationship. Still less is it entitled to conclude that she forfeited her right to self-defence for having done so".

Stanley Yeo (1993) has argued that in Australia BWS is not considered a medical abnormality, but a mental state which is normal in particular circumstances. It is seen as relevant to all defences including self-defence and duress. All it connotes in Australia is knowledge which jurors may not be familiar with. However, Australian feminists are not as sanguine, and have been noting cases in which BWS has hindered rather than aided women's cases.

Problems with BWS

Internal logic

BWS focuses on women's responses to violence, rather the context of violence in the relationship. It thus diverts attention from the previous behaviour of the man, and the danger he represented. The case thus turns on women's personality defects rather than the man's behaviour.

The central question becomes why women stay, which she is not on trial for, whilst the more important questions of why men continue to use violence, refuse to let women leave and the failure of agencies to intervene to control violence and protect women are lost. These issues are the ones current international research highlights as central to the contexts in which battered women kill and are killed.

The battering 'cycle' is by no means universal Walker herself failed to find it in a third of her interviews - some men for example are never contrite, never apologise and rule the household through a reign of terror.

Women's resistance to violence and control is minimised, if not made logically impossible. In fact some research now suggests that in some relationships violence continues precisely because women resist men's controlling behaviour (Kelly 1988; Lundgren 1986).

'Learned helplessness' reproduces stereotypes of women as 'pathetic victims' and therefore excludes women who continues to resist. Some work in the US has shown that the groups of women most likely to be excluded are poor and African American women, who continue to fight back. This (together with legal racism) has been offered as an account of why a disproportionate number of African American women have been denied leave to appeal, or had unsuccessful appeals, and a proportion of these women are currently on death row. Instead of challenging the stereotypes it sought to overturn, has in fact reinstated them with veneer of scientific foundation.

BWS can have contradictory outcomes in relation to provocation defences, since the despair that inherent in BWS can make the woman's lethal action even less comprehensible.

It runs the danger of reducing complexity of individual women's realities to a checklist.

What should concern us most about BWS is that it misrepresents the complexity of domestic violence and women's responses to it. In flattening out very real differences numbers of women who are excluded because they don't 'fit'. In the US this increasingly means that their testimony may be discredited and/or that they have much more limited access to justice.

Broader implications

BWS reinforces the age old presumption that women and children's evidence is not sufficient.

It is contributing to a 'therapeutisation of domestic violence', whereby the issue is increasingly defined in medical and psychological terms within a spurious scientific discourse (Nicolson and Sanghvi, 1993, p734). In so doing it promotes an implicit message that women have to be suffering from something in order to be deserving of justice.

The more valued and credible professional expert witnesses become the less valued and credible women's testimony is if it stands alone, thus women's voices are supplanted by those the law confers with more status.

Women's responses are framed in terms of something approaching a pathology, rather than as coping/survival strategies and rationality in the face of irrationality. For example, compliance may be a deliberate and conscious strategy used to manage violence, rather than the outcome of psychological damage. In the process the complexity and variability of women's contexts, options and decisions is lost.

Some US commentators have voiced concerns that the ubiquitousness of BWS may have the unintended consequence of reserving the right to defend oneself as a battered women. They ponder whether Jo Ann Little (who killed her rapist) and Yvonne Wanrow (who killed a known child abuser) would receive the same sympathy from jurors as they did in the 1970s.

The focus on BWS detracts, certainly in Britain, from attempts to reformulate self-defence, and even enact new partial defence.

Syndromes and disorders medicalise and universalise women and children's experiences, transforming complex, variable and frequently realistic responses into a symptomatology. We are in danger of ending up with a "sick/sick model" in the legal processing of domestic homicide where the violent men are sick and the abused women crazy. The space feminists have fought for - to enable women and children to tell their own stories, and to be supported in doing so by women who have devoted much of their lives to challenging men's violence - is increasingly being usurped by professionals who see the individual once or twice to 'assess' them. Who we invest with the 'expertise' of possessing knowledge about sexual violence has implications beyond individual cases.

Nicolson and Sangvhi (1994) conclude their reflections on Kiranjit Ahluwalia's case with the comment that a successful defence becomes "dependent on their conforming to a socially constructed image of femininity, continuing the tendency whereby the character of woman killers rather than their actions are placed on trial" (ibid, p735). Elizabeth Schneider echoes this from a US perspective:

"... the term 'battered woman syndrome' has been heard to communicate an implicit but powerful view that battered women are all the same, that they are suffering from a psychological disability and that this disability prevents them from acting 'normally'." (1986, p198)

BWS emphasizes damaged women, rather than women who perceive themselves to be, and may in fact be, acting competently, assertively and rationally in the light of alternatives. The legal focus becomes trying to find an 'excuse' rather than a justification linked to a reasonable act.

Developing an alternative approach

It is more than obvious that judges, lawyers and juries need access to the most up to date knowledge about domestic violence in order to counteract the stereotypes and misinformation that has predominated to date, but are most psychologists and psychiatrists familiar with state of the knowledge?

Two things are needed if justice is to prevail in these cases. Firstly wider, more open conceptualisations of the context and dynamics involved in victimisation, and how these can result in a variable range of behavioural and cognitive changes and where the actions (and inactions) of others (either individuals or workers) may be significant in trapping women further, or creating the possibility of escape. Such expert testimony would take account of both general and particular situations and processes. There are conceptual frameworks which have both a social research and clinical validity, but which can accommodate difference in terms of the impacts at the time, and over time, and which have at their centre the recognition that women and children have to find/develop ways to cope/survive, some of these may not be in their long-term interests. In using alternative models we make it possible for a broader range of people to be used to provide supportive testimony, including workers who are providing direct support for women and children. Frameworks which already exist would be the concept of 'dissociation' and David Finkelhors' four 'trauma genic dynamics' which he developed in relation to sexual abuse which might be adapted to apply to domestic violence. The most promising route, however, is that developed by Judith Herman in 'Trauma and Recovery', where she proposes and develops the concept of 'chronic traumatic stress'.

Secondly, the basic question which should be addressed in such cases is: was the woman's use of violence in this particular circumstance reasonable given her size, strength and perception of danger. In terms of battered women who kill more radical and appropriate reforms would be extending remit of self-defence and enacting a new partial defence of self-preservation (Radford and Kelly, 1994), which the Justice for Women network, SBS (Southall Black sisters), ROW (Rights of Women) and WAFE (Women's Aid Federation of England) support.

Self-preservation is intended as a partial defence, and although not gender specific it is revolutionary in that it takes the circumstances which women commonly find themselves in (as opposed to those of men) as its point of departure. It is limited to intimate relationships in which violence has occurred where this violence would be repeated, their life was in danger and "the defendant believed that s/he had no alternative but to kill the deceased or to cause him grievous bodily harm'. The facts of previous abuse would have to be presented to the court, and the subjective test of 'honest belief' has precedents in other statutes. Under self-preservation the accused would have to demonstrate to the court that they did in fact see themselves as in danger of being killed, and that there appeared no other alternative at the time to the action they took. Whilst it bears some relationship to self-defence, it takes the context of domestic violence as a necessary starting point, rather than trying to fit these experiences through the loopholes of current homicide law. Interestingly the response of the Home Affairs Select Committee in rejecting the proposal as a useful way forward was that such a concept was unknown in English law, and that it suggested that women 's actions might be rational.

Kathleen O'Donavan (1993) explores the contest between women's groups and the legal system in terms of the 'reasonable man's' claim to universality (p429). She argues that legal discourse has been relatively impervious to feminist challenge. In terms of women who kill this is undoubtedly the case: mad women can be understood; bad women punished; but women as rational and creative survivors are currently invisible. BWS plays into this invisibility by only allowing women to occupy the position of depressed and despairing victim. It is far more of a hindrance than a help in the struggle for justice for women and against domestic violence.

This article has been edited from the Justice For Women information pack.