Should the Courts Allow the Battered Spouse Syndrome Defense? Term Paper

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¶ … Canadian Supreme Court 1990 decision that created the battered wife syndrome defense. The case is analyzed for how such a defense came into being and the implications it has on interpreting a battered woman's response.

Some recent cases are examined and comments are made on the nature of the literature that has arisen from this decision. Finally proposals are made about the criminal system and legislation policies.

Should the courts allow the battered spouse syndrome defense?

This paper analyzes the rationale for the 1990 Supreme Court of Canada decision that established a battered woman syndrome defense as a legitimate extension of self-defense in Canadian courts. How it came about and what the syndrome implies about a battered woman's mindset and her behavior is also presented. Lastly it overviews some of the subsequent research on this defense and it's affect on the criminal system. Recommendations are made.

Legal case summary in front of the Supreme Court

The essential situation for the case at hand, R.v. Lavallee, [1990] is that Lavelee, a battered woman was in a volatile common law relationship. She killed her partner late one night by shooting him in the back of his head as he left her room. She shot him just after being physically abused. She was fearful for her life after being taunted with the threat by him that either she kill him or he would get her.

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She had been frequently physically abused by him and reported being a victim of his physical abuse, but had concocted excuses to explain her injuries to medical staff. The trial had established that the relationship was characterized by repeated occasions of physical abuse of Lavellee by her partner. It was a tumultuous relationship.

Term Paper on Should the Courts Allow the Battered Spouse Syndrome Defense? Assignment

At her trial, a psychiatrist (Shane), as an expert witness with extensive professional experience in the treatment of battered wives, prepared a psychiatric assessment of the appellant which was used in support of her defense of self-defense. According to his expertise, he explained about her ongoing terror and her inability to escape the relationship despite the violence and the continuing pattern of abuse which put her life in danger.

Importantly, the psychiatrist testified that in his opinion Lavellee's shooting was the final desperate act of a woman who sincerely believed that she would be killed that night. In the course of his testimony, he related many things told to him by the appellant for which there was no admissible evidence. His expertise related to the unique mindset of a battered woman (i.e. battered spouse syndrome) who had suffered a cycle of abuse from a man which would produce a response beyond what a 'reasonable' person would do in her circumstance.

Lavellee did not testify at the trial.

Decisions of the Lower Courts:

The trial at Manitoba Queen's Bench

The judge explained and cautioned the jury on the expert testimony of the psychiatrist, Shane. He cautioned against putting weight to Shane's testimony where it was based on unsupported (inadmissible) evidence. Much of Shane's testimony was dependent on his personal interview of Lavellee and the inadmissible evidence she related to him

The Jurors acquitted Lavellee of the murder. The 'state' then appealed to the Appeals Court.

The Appeals Court at Manitoba Court of Appeal

The 'state' appealed the acquittal of Lavellee on the basis that the most of the psychiatrist's testimony was based on inadmissible evidence. The precedent case, R. v. Abbey R. v. Abbey, 1982 CanLII 25 (S.C.C.), [1982] 2 S.C.R. 24, required expert testimony to be grounded in admissible evidence otherwise it's unacceptable.

The Court of Appeal reversed the acquittal, calling for a new trial because of the lack of admissible evidence in the expert testimony based on R. v. Abbey and as allowed by the trial judge in his instructions to the jury.

Lavellee appealed to reversal to the Supreme Court.

Decisions and Rationale of the Supreme Court of Canada.

The decision of the Supreme Court, R.v. Lavallee, [1990] 1 S.C.R. 852, upheld Lavellee's appeal and thereby upheld the trial court's acquittal and the trial judge's adequacy of instructions about the expert testimony. There were no dissenting opinions.

The Rationale:

The Supreme Court's decision was that the instructions of the trial judge sufficiently cautioned the jurors about the expert testimony and despite the fact that much of it was based on inadmissible evidence - i.e. what Lavellee believed happened and her fear of being killed that night which justified her shooting her common law partner as he left the room as she personally related to the psychiatrist.

In concluding this, the Supreme Court expanded the interpretation of R. v. Abbey by allowing expert testimony to not completely have to rely on admissible evidence. According to Supreme Court judge, Sopinka J. writing, "Each of the specific facts underlying the expert's opinion need not be proven in evidence before any weight could be given to it. As long as there is some admissible evidence (such as past behavior of man) to establish the foundation for the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion."

Identification of the psycho-legal assumption by the Supreme Court about human behavior

By upholding the trial court's verdict, the Supreme Court validated what has become known as the battered wife syndrome defense. According to Regehr (Regehr 1995) this defense relies on expert testimony that a battered woman accused of murder or aggravated assault suffers from psychological sequelae and that this psychological distress contributes to her apprehension of danger and ultimately her apprehension of death during a particular battering episode.

What's unique is that this syndrome idea overrides the natural personal decision structure that jurors would use for his or her own determination as 'reasonable reaction' response. That's because believing that this syndrome exists, means the jurors accept a state of mind for the woman that they would not themselves consider to justify murder - especially where she's not under immediate attack as in this case.

Research and Analysis

The politicization of violence against woman and abusive behavior has exploded over the last 30 years. Government funding has added enormously to this. So much of the literature is filled with political and social doctrine from the 'feminist perspective'.

But empirical research on the 'battered wife/woman abuse syndrome defense' per se is still elusive. One psychological study (Schuller 2004) examined contrived jury psychology tests - and their verdicts based on different approaches to explaining a battered woman's defense to a jury. The closer a 'syndrome state of mind' was put forth, the higher the probability of acquittal.

Kahan (Kahan 2008)studied how the public perceived judging abusive reactions in a trial circumstance. He found that individuals would strive to be objective and not be taken in by some political affiliation or allegiance. But nevertheless some of their aculturalization would unknowingly show up in their views.

Street (Street 2001) examined pathological responses to post traumatic stress disorder for battered woman. Nothing was found for a specific state of mind to justify a defense syndrome.

It appears that very little, if any, psychological studies establish a real medical state of mind such as the battered wife's syndrome. The literature is filled with reviews and commentaries justifying some feminist view for women (Thurstan 1998), or studies on anything having to do with abuse (Bartholomew 2008, Brady 2000, Riggs 2007)(follow the funding availability) to a lack of provision for husband abuse studies (Migliaccio, 2002).

What's extremely important are the implications of woman's abuse syndrome - as recognized in the R. v. Lavellee case - and the enormous violence against women legislation and programs that together have reached an influence on our legal systems that go far beyond fairness to undermining long established due process procedures in the legal arena.

Morse (Morse 1995)suggests that criminal would be better off by adopting generic excusing conditions for defense than creating syndromes as excuses. He says that the law should not be blinded by psychiatric pixie dust nor lose its legal commonsense.

Policy Recommendations

For criminal justice personnel (police, lawyers, judges…)

The most important actions to be taken are to restore 'due process' at every stage of the criminal system. Much of the Violence Against Women-type propaganda has resulted in the undermining of the most basic rights as they are applied to men. The propaganda stereotypes men as naturally abusive and seeks privileges for woman within the legal system starting from how police react differently for a man and woman in domestic violence disputes.

Judicially, the battered wife syndrome should be dropped and reversion to more admissible evidence should be relied upon rather than suggesting the jurors should abdicate their own views in favor of somewhat blindly following an expert's opinion. The syndrome idea has taken on an impetus and reality far beyond that intended by the Supreme Court.

For the legislature and policy… [END OF PREVIEW] . . . READ MORE

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