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Feminist perspective on battered wife

Feminist perspective on 'battered wife' syndrome and the law of self-defence Outline

The term ‘battered woman syndrome’ was coined first by Lenore Walker, who was a psychologist and feminist writer and relates to the distinct psychological and behavioural symptoms of women exposed to long term spousal violence (Walker, 1984). It is significant that the battered wife syndrome itself is a term that is coined by a feminist writer. Furthermore, the fact that the syndrome is accepted now as medically certified post-traumatic stress disorder and is included in the list of International Classification of Diseases of the World Health Organisation (Craven, 2003), is also significant because it suggests that there is some acceptance of feminist position on the battered wife syndrome in the medical community. The question is how far has this feminist position informed the law of self defence in the English jurisdiction.

The research question that this research seeks to answer is as follows: To what extent should feminist perspective inform the law on diminished responsibility and self defence in murder cases?

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The above research question is informed by a preliminary literature review of feminist and legal academic work. Russell (2010) writes that a significant number of cases from the 1970s onwards suggests the use of the battered woman syndrome as a self-defence by women prosecuted for murder or manslaughter. However, literature also demonstrates that there are certain challenges to the traditional criminal law on provocation as a self-defence so that courts were required to enlarge the scope of self-defence to accommodate cases involving battered wife syndrome (Russell, 2010, p. 32). It is also important that the Coroners and Justice Act 2009 has introduced a new defence in the form of ‘loss of control’, which has been related to the need to correct the inadequate legal response to situations and contexts related to battered wife syndrome (Clough, 2010). Nevertheless, feminist writers, such as, Norrie (2010) have argued that the new law is unfair to battered women as women are required to prove loss of control instead of accepting such women have a justified reason for killing the perpetrator who has subjected the woman to prolonged violent behaviour.

Similarly, Weare (2013) argues that the new law will make it harder for battered women to portray themselves as ordinary women as they are labelled as victims. Weare (2013) argues that women will have to provide evidence of their victimisation for getting the benefit of the ‘loss of control’ provisions and thus emphasises on labelling and agency. These are some of the feminist perspectives that suggest that there is still some gap between the law and the feminist perspective on the battered wife syndrome.

The research will discuss the historical evolution of the defence of the ‘battered wife syndrome’; literature suggests that in the English law, the defence of battered wife syndrome has had a difficult history for both defence of provocation and the rules of diminished responsibility (Clough, 2010). Nevertheless, literature also shows how the defence of the ‘battered woman syndrome’ was accepted as a mitigating factor in some cases (R v Duffy, [1949] 1 All ER 932, 1949; R v Ahluwalia (1992) 4 AER 889, 1992) and treated to be outside the jurisdiction of provocation defence in some other cases (AG v Holley [2005] AC 580, 2005). What this suggests is that there is some ambiguity in the use of battered wife

syndrome as a defence (Fitz‐Gibbon, 2013). Literature also questions how far legislation will really be able to encompass the ‘battered woman syndrome’ (Fitz‐Gibbon, 2013; Clough, 2010). This research study seeks to assess how far the feminist perspectives have been successful in informing the law related to self defence in the context of battered wife syndrome.

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Bibliography

AG v Holley [2005] AC 580 (2005).

Clough, A., 2010. Loss of self-control as a defence: The key to replacing provocation. The Journal of Criminal Law, 74(2), pp. 118-126.

Craven, Z., 2003. Battered woman syndrome. Sydney : Australian Domestic & Family Violence Clearinghouse.

Fitz‐Gibbon, K., 2013. Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control. Journal of Law and Society , 40(2), pp. 280-305.

Norrie, A., 2010. The Coroners and Justice Act 2009—Partial Defences to Murder (1) Loss of Control. Criminal Law Review, Volume 4, p. 275–89.

R v Duffy, [1949] 1 All ER 932 (1949).

R v Ahluwalia (1992) 4 AER 889 (1992).

Russell, B., 2010. Battered woman syndrome as a legal defense: History, effectiveness and implications. Jefferson : McFarland .

Walker, L. E., 1984. The Battered Woman Syndrome. New York: Springer Publishing Company

Weare, S., 2013. The Mad”,“The Bad”,“The Victim”: Gendered Constructions of Women Who Kill within the Criminal Justice System. Laws, 2(3), pp. 337-361.

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