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December 17, 2013

Battered woman syndrome is a model that was developed by Dr. Lenore E. Walker to describe the mindset and emotional state of a battered woman. A battered woman is a woman who has experienced at least two complete battering cycles as described in dating and domestic violence.

What is Battered Woman Syndrome?

According to Walker’s The Battered Woman Syndrome (pp. 95-97), there are four general characteristics of the syndrome (which have been further developed into a series of symptoms not included here):

  1. The woman believes that the violence was or is her fault.
  2. The woman has an inability to place responsibility for the violence elsewhere.
  3. The woman fears for her life and/or her children’s lives.
  4. The woman has an irrational belief that the abuser is omnipresent and omniscient.

More recently, Battered Woman Syndrome has also been associated with post-traumatic stress disorder in that domestic violence involves exposure to severe trauma and so the reactions of a battered woman may be due to flashbacks or other intrusive experiences from previous traumatic events so that the woman believes that she is in danger, even if she is not.

What Are the Symptoms of Battered Person Syndrome?

According to Walker, when Battered Person Syndrome (BPS) manifests as PTSD, it consists of the following symptoms:

  1. re-experiencing the battering as if it were recurring even when it is not,
  2. attempts to avoid the psychological impact of battering by avoiding activities, people, and emotions,
  3. hyperarousal or hypervigilance,
  4. disrupted interpersonal relationships,
  5. body image distortion or other somatic concerns, and
  6. sexuality and intimacy issues.

It seems that the leading case regarding “battered woman syndrome” or “battered person syndrome” in Canada is that of R. v. Lavalee. However there a few cases which deal with this issue.

In 1990, in a landmark case called R. v. Lavallee, the Supreme Court of Canada upheld the admissibility of evidence by a leading criminal defence attorney about “battered woman syndrome” to explain how a woman who kills her batterer might be acting in self-defense. Speaking for the court, Justice Bertha Wilson recognized that expert testimony about the effects of battered woman syndrome is useful because it is difficult for jurors to understand the effects of battering. Justice Wilson stated:

“Laws do not spring out of a social vacuum. The notion that a man has a right to “discipline” his wife is deeply rooted in the history of our society. The woman’s duty was to serve her husband and to stay in the marriage at all costs “till death do us part” and to accept as her due any “punishment” that was meted out for failing to please her husband. One consequence of this attitude was that “wife battering” was rarely spoken of, rarely reported, rarely prosecuted, and even more rarely punished. Long after society abandoned its formal approval of spousal abuse tolerance of it continued and continues in some circles to this day.

Fortunately, there has been a growing awareness in recent years that no man has a right to abuse any woman under any circumstances. Legislative initiatives designed to educate police, judicial officers and the public, as well as more aggressive investigation and charging policies all signal a concerted effort by the criminal justice system to take spousal abuse seriously. However, a woman who comes before a judge or jury with the claim that she has been battered and suggests that this may be a relevant factor in evaluating her subsequent actions still faces the prospect of being condemned by popular mythology about domestic violence. Either she was not as badly beaten as she claims or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some masochistic enjoyment of it.”

The Supreme Court of Canada further held, inter alia, that expert evidence with respect to the psychological effects of battering is admissible and may assist the trier of fact in determining whether the particular accused acted under a reasonable apprehension of death or grievous bodily harm (at the hands of the batterer) pursuant to s.34(2) of the Criminal Code.

The court also found that the expert could properly testify with respect to the observed tendency of persons who have been abused to remain in the relationship for some time and to not immediately disclose the abuse. The evidence was adduced to assist the jury in evaluating the complainant’s testimony as to why she did not leave the relationship and accurately report the alleged abuse.

It is open for a trial judge to admit opinion evidence “about the tendency of victims of domestic violence to maintain contact with [their alleged abuser] and to recant during the trial process” on the basis that such evidence would not be within the common purview of a jury’s knowledge: Smith [2007] O.J. No. 1347 (C.A.), endorsement. In Smith, the court held that the trial judge did not err in his accompanying instructions to the jury on the uses that might be made of the opinion evidence about domestic violence.

Where self-defence is advanced in the context of a relationship of ongoing abuse, expert evidence can help the jury understand the accused’s state of mind at the relevant time, particularly how he or she perceived certain conduct by his or her abuser. Evidence describing the nature of the prior abuse and the circumstances in which the abuse occurred may be important in a jury’s assessment of an accused’s state of mind: Craig, 2011 ONCA 142 para. 41.

Furthermore, expert testimony on the psychological effects of battering have been admitted in American courts in recent years (State v. Kelly, 478 A.2d 364 (1984), at p. 378).

Battered Woman Syndrome in Law

Finally, it is important to note that Battered Woman Syndrome was considered in the case of R. v. Ryan 2013 SCC 3. It seems that according to this case the Supreme Court of Canada does not consider the violent acts of an abused woman against the abuser to make available the defence of duress but rather only the defence of self-defence would be available.

Robert Karrass is a partner at Morton Karrass LLP and specializes in the areas of criminal law, administrative/regulatory law, civil litigation in Toronto and appeals.

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