Battered Women and Self Defence
Self-defence is governed by the common law and is available in relation to all offences against the person, including murder. The law authorises the use of force in self defence including in some circumstances lethal violence. Self defence is a complete defence and so results in an acquittal. Self defence can be contrasted with the defence of provocation, which provides the defendant with a partial excuse reducing the conviction from murder to manslaughter.
The legal doctrine of self-defence is much broader than its name suggests. The defence is usually raised where a person inflicts force in order to defend him or herself. But it also includes force used in defence of others and force used in defence of property. In relation to property, the law tolerates a lower level of force than in relation to the protection of individuals. On the common law's reluctance to sanction the use of mechanical devices to protect property see BFW 713.
Early on, the common law developed restrictions on the availability of self defence. Indeed, under the common law prior to Woolmington, the burden in homicide case rested with the defendant to prove self defence. The courts developed specific limitations on the scope of the defence which the defendant had to satisfy before the defence could be raised. One legal requirement was that the force used by the defendant was a matter of last resort: in other words, the defendant was under a legal duty to retreat before self defence could be raised. Also, the defendant's act of self defence had to be an immediate response to an act of unlawful aggression by the other person. Another requirement was the level of force used had to be proportionate to the violence offered by the other person. So, for example, the person attacked with fists could not respond with lethal force.
The obvious problem with the traditional model of self defence in the common law is that it is structured around male responses. In the words of Professor Kathleen Mahoney, Canadian feminist legal academic, the common law adopted a "bar room brawl model" of self defence. Structuring the legal rules around male responses and reactions exclusively discriminates against women. The traditional model of self defence discriminates against women cannot conform to this model which is designed by and for men. The problem is brought into sharp relief by the plight of women who kill in response to violent recurrent spousal abuse. It has proved difficult to raise self defence because there is rarely evidence of aggression by the abuser immediately before the woman's act of violence. The juries also have difficulty in accepting that the women's lethal response is proportionate to the abuse.
In recent years there has been an increased awareness and sympathy for of battered women. Battered womens syndrome evidence has become usual feature of murder trials dealing with spousal killings. The media portrays this development as the courts creating a new BWS defence. This is not true. The truth is simply that in recent years the courts have demonstrated some willingness to admit expert medical evidence of this syndrome to support the existing defences of self-defence, provocation and duress. In the next couple of lectures we will explore the recent changes to self defence. After considering the present rules we will consider whether, and to what extent, these reforms overcome the problems experienced by women in raising self defence in these cases.
The leading authority dealing with self-defence in Australia is the High Court decision Zecevic (1987) 162 CLR 645, BFW 698, BWW 198,. The victim rented a unit from the defendant. The defendant became increasingly annoyed with the victim who kept leaving the security gates of the unit unlocked. After one heated exchange, the defendant was stabbed by the tenant. The defendant, fearing that the tenant was about to get a gun from his car, rushed off and got his shotgun. The defendant returned and shot and killed the tenant.
The judge withdrew the issue of self defence from the jury, and the defendant was convicted. The trial judge had concluded that the only inference open to the jury was that the defendant did not reasonably believe that an unlawful attack which threatened him with death or GBH was being made.
The majority judgment of Wilson, Dawson and Toohey JJ is extracted in BFW 699, BWW 198. The majority reviewed the earlier authorities and restated the law relating to self defence simple terms: BFW 699-700, BWW 203.
"The question to be asked in the end is quite simple. It
is whether the accused believed upon reasonable grounds that it was necessary
in self-defence to do what he did. If he had that belief and there were
reasonable grounds for it, or if the jury is left in reasonable doubt about
the matter, then he is entitled to an acquittal."
It is important to note that the test is not what the reasonable person in the defendant position would have thought, but whether the defendant's belief is based on reasonable grounds: see comments by Hunt CJ in Conlon (1993), BFW 709. Int hat case, the defendant's belief was affected by intoxication and a schizoid personality disorder. Both these facts were relevant to the question whether the Crown had proved that he had not acted in self defence: specifically whether or not he believed that it was necessary to do what he did and whether that is a reasonable belief. The question seems to be formulated in terms of whether the belief held is reasonable to the accused, rather than reasonable to the reasonable person. This is highly beneficial to the accused, who used a shotgun to defend two trespassers who were stealing his cannabis plant.
There are two components: a belief by defendant and that belief is based on reasonable grounds. The majority clarified that the old rules relating to self defence were no longer legal requirements. There was no legal requirement that the attack on the defendant had to be unlawful or that the defendant had retreated as far as possible before acting in self-defence. The old legal requirement that the force used was proprortionate to the threat was also abolished. However, the High Court emphasised that all these factors would be relevant as a matter of evidence for the jury to consider when it decides whether the defendant had "reasonable grounds" for believing that the force used was necessary. The majority said that the judge will have the task of explaining to the jury the significance of this evidence: BFW 700-701.
The majority of the High Court also clarifed that the defence called "excessive force in self defence" was no longer good law in Australia. The High Court had held in two earlier decisions, Howe (1958) and Viro (1977), that where the defendant kills another person in the belief that it was necessary in self-defence, but that level of force was excessive or disproportionate, then the defendant is guilty of manslaughter rather than murder. Excessive force in self defence operated as a partial excuse like provocation, reducing murder to manslaughter.
The Viro direction on excessive force in self defence was extremely complex, set out on BFW at 695, and had 6 separate directions for the jury. It was proving extremely difficult to direct the jury in a comprehensible manner in accordance with Viro. The Privy Council had also rejected excessive force in self defence as a partial excuse for murder in Palmer (1971). For both of these reasons, the majority in Zecevic rejected excessive defence. But note the powerful dissents by Deane and Gaudron JJ. Zecevic brought the common law into line with the position in England and the Code States.
Another negative consequence of Zecevic is that the decision broadens the scope of murder in Australia. By abolishing the defence of excessive force in self defence, the defendant who acts in a genuine but unreasonable belief as to the use and degree of force is guilty of murder. However, the evidence raised by the defendant for a claim of self defence may be relevant to mens rea or the defence of provocation, BWW at 204.
The next case we shall consider is Dziduch (1990), BFW 704. This is a recent decision of the New South Wales Court of Criminal Appeal providing important guidance on the issue of burden of proof in self-defence cases. The facts are not material here. The case concerned a charge of wounding arising from an incident between the defendant and the victim. The defendant stole the victim's car and the victim gave chase. The victim wrestled the defendant to the ground. The victim admitted that he was angry and had spoken to the defendant in an aggressive tone. The defendant pulled a knife and in the struggle the victim was stabbed in the chest. The defendant claimed that he had pulled the knife simply to threaten the victim, and that he did not intend to stab him. The problem here concerned the jury direction on the burden of proof.
In Zecevic, the test for self defence is whether the defendant believed upon reasonable grounds that it is necessary to do what he or she did. The problem with the test thus formulated is that it suggests that the defendant must establish self defence. The true position in the modern law is that it is for the prosecution to disprove self defence in every case where it is raised as an issue. In Dziduch the New South Wales Court of Criminal reformulated the direction in terms which takes account of the legal burden. In any case where self defence is fairly raised by the facts, the prosecution must establish either that the accused did not believe on reasonable grounds that the force was necessary in self defence or that there were no reasonable grounds for such a belief. If the prosecution fails to prove either of these, the accused must be acquitted.
The basic rules governing self defence are easily formulated. The question is whether this formulation will make it easier for women who act resort to violence against abusive partners to rely on self defence. The purpose of the criminal trial is to attribute culpability and draw distinctions between degrees of culpability. In one sense the Zecevic ruling can be seen to be working against battered women. Remember that under the earlier decisions of Howe (1958) and Viro (1977), the common law recognised a partial defence called "excessive force in self defence". The defence was available where the defendant killed another person in the belief that it was necessary to do so in self-defence, but the level of force used was excessive. In such cases the defendant was guilty of manslaughter rather than murder. This defence recognised that this type of killing, though not justifying an acquittal, was less culpable than other forms of intentional killing. Although a strong case can be made for drawing such a distinction, the problem with excessive force in self defence was the resulting complexity in the jury direction. For this reason primarily, the majority rejected that excessive force in self defence was a defence.
The excessive force defence would have been available in most trials of women who killed their abusive partners. The defence would not be entirely satisfactory from the woman's perspective, because it did not carry a complete acquittal. However, it would be an attractive option for juries, available as a "half way house" between the verdict of acquittal for self defence or conviction for murder. Following Zecevic, the jury has a stark choice. They must convict for murder (intention to kill or inflict grievous bodily harm is rarely in doubt) or acquit because the killing was in self defence.
The benefical consequence of Zecevic is that it sweeps away the old legal requirements of the defence, like proportionality and duty to retreat. This removes some of the legal obstacles for women who kill in self defence or defence of others. These rules reflected the male paradigm of self defence. In the words of the Supreme Court of Canada in Lavallee the law is based on a "barroom brawl between two men of equal size and strength". It does not deal with violence between intimates, within the family. Nor does it recognise that women may experience and react to fear differently than men. Before Zecevic, battered women had been altogether barred from raising the issue of self defence.
Although post Zecevic these rules have been relegated to the evidential arena, the present law governing self defence remains inherently problematic. This is because the law qualifies the women's belief in the necessity of her actions with a requirement of reasonableness. Remember the test is is not whether a reasonable woman in her position would have acted in self defence with this level of force. The question is whether her belief is based on reasonable grounds.
But merely pushing these legal requirements into the sphere of evidence may not prove to be much of help for battered women. I would express scepticism as to whether the jury can fully understand this distinction between rules of law and rules of evidence. Morevoer, the impact of Zecevic may be negligible for women if, as I suspect, judges continue to apply male standards of reasonableness in their directions on the relevance of this evidence. For an example of the way in which evidence is constructed in a manner which undermines the "reasonableness" of a battered woman's response to violence see Patricia Secretary (1995) unreported, ***NTSC, INSERT CROSS LINK*** to this case.
Reasonableness standards are under attack by feminist legal theorists. Although clothed in the language of neutrality and objectivity, the underlying standard is a male one. Refer to the article by Sheey, Stubbs and Tolmie. The challenge for feminist lawyers has been to demonstrate that the male response to aggression is not necessarily the only reasonable response. The task therefore is to demonstrate to the jury that the fear and reactions of battered women may indeed be reasonable in the circumstances.
One avenue in which this has been achieved with some success is through the admission of battered womens syndrome evidence. Some of you may be wondering why can't women's experiences be raised without resort to medical expertise. Madam Justice Bertha Wilson in Lavallee provided this answer:
The average member of the public (or of the jury) canbe forgiven
for asking: Why should 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 beats her to the point of requiring hospitalisation? 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 woman syndrome.
We need to understand and help is available from trained professionals"
The role of this expert evidence is to dispel the popular myths and stereotypes concerning battered women. In Australia, the first case to recognise the role of this type of expert evidence in a case of self defence to a charge of murder was Kontinnen (1992. The defendant, Erica Kontinnen, shot and killed her defacto whilst he slept. Self defence and provocation were both put to the jury. The defendant lived with the deceased and another woman and her child. She claimed that deceased had abused her over many years, and that on the night of the shooting threated to kill her, the other woman and the child. She had been hospitalised 10 times in two years as a result of his beatings. The Supreme Court admitted expert evidence of the syndrome which provided a psychological profile of such women and their condition which is described as "learned helpness". This evidence was admitted without objection by the Crown or trial judge. The trial judge treated this evidence as being relevant to two issues: first, it was relevant to whether the defendant subjectively believed that it was necessary to use this force against the deceased, secondly, it was is relevant to the objective standard of reasonableness of the defendant belief. The jury acquitted the defendant.
In Hickey (1992) the New South Wales Supreme Court considered similar evidence. The defendant killed her de facto. The relationship had been abusive for several years, and the deceased would bash her when intoxicated or when he wanted money from her. He was also violent to their children. The defendant moved out of the family home and obtained a DVO but he ignored it. The defendant agreed to meet with the deceased so that he could have contact with the children. He became abusive when she refused to allow him to have the children overnight. He headbutted her and began to strangle her. He then stopped and sat on the bed with his back to her. The defendant then grabbed a knife and struck him in the chest. During the trial for murder, expert psychological evidence was admitted without objection either by the Crown or trial judge. The jury acquitted.
In his commentary on the case, Professor Stanley Yeo points out that it is conceivable that the defendant in Hickey could conceivably have been acquitted without expert psychological evidence, because there had been escalating violence in the relationship and a violent assault immediately before the defendant's stabbing. He also points out that many women who remain in violent relationships do so not because they have battered woman's syndrome. There are often other more mudane social factors at play in these relationships, like financial dependence and lack of sympathy from family, social services or the police. According in Professor Yeo's view the battered woman's syndrome should not be unduly emphasised.
I have similar concerns about the risk of over-emphasising the importance of these symptoms in self defence cases but for a different reason. There is an increased reliance and prevalence of syndrome evidence in criminal trials to explain criminal behaviour, in particular female behaviour. The expertise is not confined to battered woman's syndrome. Ian Freckleton's article reviews some of the best known syndromes like rape trauma syndrome (which is used by the Prosecution to prove that rape occured), premenstrual syndrome, parental abuse syndrome, and Vietnam veteran's syndrome. As Freckleton explains in medicine syndrome is used to denote a collection of symptoms that occur together, where the cause of the symptom is not known. So there is some confusion between the medical use of the term syndrome (which means that the cause of the symptoms is not identifiable) and the legal and evidential use of syndrome (which assumes that a cause can be identified). The term battered women's syndrome emerged in the pionering research and literature in the 1980s of Dr Lenore Walker. She used the term as a convenient label to describe the symptoms of women who were diagnosed with "post traumatic stress" disorder following repeated abuse by partners. The behaviour, like learned helpness, is the result of them experiencing post traumatic stress. So the only thing the such symptoms prove is that the defendant suffered a major trauma, it does not identify the type of trauma. However, there are clear advantages for the defence in using the term "syndrome" to describe the behaviour of battered women. The term "syndrome" cloaks the social and psychological explanation of the defendant's conduct in a veneer of medical respectability which the jury is more likely to accept.
There are several dangers in this medicalisation of women's experiences and behaviour. First, women who do not exhibit these symptoms will not be able to convince the jury that their reactions were reasonable. Although the legal rules of self defence no longer conform to the barroom brawl model (the male model), women must now conform to a medical model (as defined by psychiatry) for their evidence to be credible. Secondly, in crude terms, the syndrome evidence is suggestive that the woman is not bad, just mad. This may suggest that the more appropriate defences of insanity or diminished responsibiliy. Insanity is defined as a disease of the mind so that the person no longer knows the nature or quality of the act, or the difference between right and wrong. The defence results in a qualified acquittal, which is indefinite detention in a mental institution. A very unattractive option.
In conclusion, the introduction of syndrome evidence is to some extent a necessary development, having an important role in disabusing juries and judges of myths and stereotypes concerning battered women. Freckleton says that the syndrome represents a medical fiction constructed to deal with the law's insistence upon objective notions of ordinariness and reasonableness. This may be an overstatement. Medical evidence may play a role in some, though not all, cases. However, as Freckleton proposes, the courts must be prepared to admit evidence about the broader social conditions experienced by battered women. The courts must allow evidence from a wide range of sources, including social workers and refuge workers, to provide alternative explanations of the defendant behaviour. Such evidence will provide a more satisfactory framework which can assist the jury decision whether the defendant believed the act of self defence was necessary and whether that belief is a reasonable one in the circumstances.