Contents

Chapter 6
Self-defence and family violence – is there a problem?

The role of battered woman syndrome evidence

6.69We have discussed above the problems with applying the concepts of imminence, lack of alternatives and proportionality to victims of family violence. These problems are not new. In an effort to overcome these problems, courts in New Zealand and overseas have accepted evidence of battered woman syndrome.522 This provides a framework within which the jury can understand the circumstances of women who have suffered long-term violence and enables appropriate assessment of the reasonableness of these defendants’ actions.523 The FVDRC notes that, without such evidence, the fact a victim did not leave an abusive partner or seek help from Police every time they were assaulted or threatened is taken as evidence that the abuse was not as bad as claimed or that the victim chose to stay in the situation and was, therefore, partially responsible for it.524 The role and relevance of expert evidence is discussed in detail in the next chapter. Below we identify the problems with battered woman syndrome evidence in the context of self-defence claims.
6.70As we explained in Chapter 2, battered woman syndrome is based on the theory that ongoing intimate partner violence results in women experiencing learned helplessness – the belief that, whatever they do, victims cannot change their situation, so they make no attempts to break out of the cycle of violence.525
6.71The admissibility of battered woman syndrome evidence in criminal trials is “beyond controversy” in New Zealand.526 Its relevance to claims of self-defence is primarily to correct juror misconceptions they may have about family violence and its effect on victims.527 In R v Zhou, an attempted murder case, the trial Judge explained battered woman syndrome was relevant to “rebut a suggestion that she could not have been battered because she would have stopped seeing him”.528 In R v Oakes, discussed at paragraphs [6.57]–[6.61] above, the Court of Appeal confirmed its relevance to the defendant’s belief as to the nature and seriousness of the threat they faced, noting that a woman suffering from the syndrome “may genuinely perceive danger earlier than others would, and a threat of more serious harm than others might see”.529
6.72The importance of expert evidence to explain the effects of battered woman syndrome was also underlined in Oakes, when the Court noted that “[experts] may provide an answer to questions which would naturally occur to the average juror”.530 The Court cited the Canadian case of R v Lavallee, which also confirmed the relevance of expert evidence on battered woman syndrome to claims of self-defence. In that case Wilson J said:531

The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called ‘battered wife syndrome’. We need help to understand it and help is available from trained professionals.

6.73However, despite the Court of Appeal’s clear recognition of the relevance of expert evidence on battered woman syndrome in Oakes, the Court went on to find that there was no misdirection by the trial Judge in that case, even though there was only one brief reference to battered woman syndrome in the Judge’s summing up and only in relation to the partial defence of provocation.532 The impact of this has been noted:533

The crucial relevance of the entire context of abuse to Oakes's perception of the circumstances and the reasonableness of a pre-emptive strike in self-defence was not clarified for the jury by the Judge. It appears therefore that the jury may not have had any information on the reasonableness of a pre-emptive strike in the circumstances as Oakes believed them to be and the relevance of battered woman syndrome to those circumstances. Therefore it seems unlikely that the jury could have grasped the relevance of Oakes's and the expert's testimony as to Oakes's fear on the night of the killing and her possible perception, due to an ability to predict the abusive acts of Gardner, that he would kill her that night.

6.74The Court of Appeal noted that, if the trial Judge had said more about battered woman’s syndrome and its bearing on this case, he could have found it necessary to underline that the syndrome could explain why the accused had deliberately killed the deceased, and thus “provide a motive for murder”.534 This “remarkable statement” has been criticised as being apparently contrary to all the evidence given in the case, and in other cases, about the nature and effects of battered woman syndrome.535 Commentators also argue that battered woman syndrome is often interpreted as explaining the defendant’s subjective state of mind, but not the state of mind of a reasonable person in her position.536 In other words, evidence could be interpreted to explain that the defendant had an unreasonable but understandable reaction, rather than a normal or reasonable response in the circumstances. In Oakes, for example, an expert witness for the defence gave evidence that the defendant’s “ability to reason rationally would have been impaired” as a result of suffering from battered woman syndrome,537 and the Court of Appeal said:538

Whether or not Mrs Oakes was suffering from the battered woman’s syndrome at the time … was critical to self-defence … for without the emotional fragility and the altered perception that are features of the syndrome the poisoning could not be seen as a reasonable or appropriate response to such a threat as the deceased actually posed.

6.75For these reasons, along with the general criticisms of battered woman syndrome discussed in Chapter 2, many commentators argue that such evidence does not adequately inform judges and jurors of the relevant effects of abuse and can in fact undermine a defendant’s claim to self-defence.539 Others, however consider that despite its limitations, battered woman syndrome evidence has been useful for educating juries about the perceptions that women in situations of prolonged family violence may develop.540
6.76In its 2001 Report the Law Commission recommended that the term “battered woman syndrome”, or any use of the term “syndrome” in this context be dropped and that reference be made instead to the nature and dynamics of battering relationships and the effects of battering.541 In 2004 the VLRC recommended a move away from battered woman syndrome evidence and towards the use of expert evidence that focuses on the social context of family violence.542
522Robertson, above n 425, at 277.
523Law Reform Commission of Western Australia, above n 427, at 164.
524Family Violence Death Review Commission submission at 12.
525Victorian Law Reform Commission, above n 397, at xix.
526Robertson, above n 425, at 277.
527At 283.
528R v Zhou, above n 453.
529R v Oakes, above n 454, at 676.
530At 679.
531R v Lavallee, above n 514, at 871–872; and R v Oakes, above n 454, at 679.
532R v Oakes, above n 454, at 682–683.
533Seuffert, above n 427, at 321–322; and McDonald, above n 394, at 683.
534R v Oakes, above n 454, at 682.
535McDonald, above n 394, at 683; Seuffert, above n 427, at 322; and Jeremy Finn “Oakes – Case and Comment” (1995) 19 Crim LJ 291 at 293.
536Sheehy, Stubbs and Tolmie, above n 509, at 468.
537R v Oakes, above n 454, at 679.
538At 679.
539Crofts and Tyson, above n 394, at 881–882; Law Reform Commission of Western Australia, above n 427, at 287; McDonald, above n 394, at 683–684; Seuffert, above n 427, at 327; and Tarrant, above n 394, at 603–604.
540Tasmania Law Reform Institute, above n 411, at 39; and Robertson, above n 425.
541Law Commission, above n 429, at 6.
542Victorian Law Reform Commission, above n 395, at 183–184.