The Case Of R V. Lavallee's Battered Women Syndrome

“If I didn’t kill him myself, then he would’ve killed me first,” said Angelique Lavallee. Mrs. Lavallee is one of the many women who have been accused for murder of a male partner within a household. When questioned by the police for statement evidence, she kept on repeating the same statement over and over again.
Domestic violence has been on an rise ever since the 1960s, and has not shown any signs of slowing down. In the United States, statistic shows that a woman who lives with an aggressor dies every 14 minutes. In average, more than 200 women die every year. (WHERE IS THIS FROM) Such concerns have been continuously brought up in court, and this usually arises in situations where an abused woman survives the continuous violent abuse

by killing or causing grave injury towards her partner.
This led to the introduction of the Battered Women Syndrome, which extends the basic law of provocation provided within the criminal justice system. Battered Women Syndrome allows a woman to use the defence of private defence which allows them to inflict rational harm – in this situation through murder or grievous hurt – against her aggressor. However, the issue with the Battered Women Syndrome is that it is an extremely subjective defence where the extent of harm differs on a case to case basis, which conjugates the actual definition and application of Battered Women Syndrome.
In this chapter, there will be a comparative analysis on the definition of the Battered Women Syndrome; how is it applied, where has it been applied and criticisms against the usage of the syndrome.

What is the Battered Women Syndrome?
Battered Women Syndrome refers to a certain pattern of violence and the psychological consequences upon the recipient of that violence. Experts specialising in the field of domestic violence found that the continuous abuse affects a woman’s ability to rationalise situations psychologically and emotionally, resulting in her inability to leave the aggressor. From this course of finding comes a question – why didn’t she leave instead of killing her aggressor? Dr. Lenore Walker, the founder of the Domestic Violence Institute in United States, introduces the theory of ‘learned helplessness’, where it explains the nature of a battered woman and how the abuse affects her. Dr. Walker relies on the work done by researcher Martin Seligman, who dealt with laboratory dogs repeatedly subjected to electric shocks. The dogs exhibited the behaviour of ‘learned helplessness’ after discovering that they could not avoid being shocked, regardless of whatever they do. These dogs then ceased the ability to escape and became passive, even after researchers tried teaching the dogs and allowing them means to escape. Dr. Walker then extends this theory to battered women, where they became passive as they have been continuously abused, which causes them to adapt to such lifestyle, and reflects upon thinking that the abuses is of a norm.
This equates to the concept of ‘learned helplessness’, where Dr Walker explained that there are four elements in proving that these women are not in their rightful state of mind . There has to be the presence of helplessness within abused fosters, where she may or may not have been abused as a child growing, which contributes to the sense of helplessness within herself. Secondly, the victim experiences low self-esteem and continuous depression. This occurs because she senses that the guilt and self-blame she puts onto herself is of her own doing, where she believes that such abuse is on her own fault. When she tries changing her ways and manners to try change the situation on hand, the abuse however still goes on. Thirdly is where these women reflect the same reaction as the dogs in Dr. Seligman’s research. They became passive because the abuse continues regardless of their own previous efforts on curbing it, thus become psychologically paralysed. Such change in their state of mind results in their failure to seek help from others. Lastly, the vulnerability that has been instilled within these women prolongs the abuse and fails to stop. The woman feels that she deserves to be beaten, and she is continuously reminded so by her partner thus allowing her to be severely abused.
This concept of ‘learned helplessness’ provides the best illustration in picturing what is the ‘Battered Women Syndrome’ and how is it applied in the courts.

How is it applied?
When taking judgments of manslaughter cases that cross-refer to abuse cases, courts have to take into consideration two tests in deciding whether murder is proportional to the acts of abuse instilled upon the accused. The two tests are the objective test and the subjective test. In using the objective test, judges or juries have to consider only the facts and circumstances surrounding the accused when the murder takes place to measure whether such action is reasonable to cause manslaughter. The question that takes place is whether a reasonable man would have done such a thing if he is put in the same position as the accused. Such decision is quite impossible to apprehend, especially when the jury takes into account the extent of abuse, way of life, the environment surrounding the abuse and the woman's past history. The jury must then justify whether there are any unique circumstances that verifies the woman’s action in murdering her spouse, thereby evaluating the reasonableness behind her action. The assumption can only be made if there are ample discussions in knowing whether there is any reasonable account for the accused to act as such.
The second test is the subjective test, which in comparison to the objective test, requires judges and juries to analyse whether the facts and circumstances surrounding the accused is sufficient to induce the accused in inhibiting a reasonable belief that she must resort to manslaughter to defend herself. The subjective test exhibits the concept of ‘learned helplessness’ to provide support to the woman’s conduct. The court analyses whether there is ample vulnerability within the accused to have been passive against her aggressor, and to take the opportunity to defend herself when available. Yet, it is very contradictory to compare a woman who is seen as vulnerable and psychologically paralysed, to a woman who took positive control over the situation and murder her aggressor.
Courts then relied upon the ‘cycle theory’ as introduced by Dr. Lenore Walker, where she explains that there are three phases during an attack and why a battered woman would not leave her household even after being abused for so long. The first phase is when the tension in a domestic setting builds. The aggressor would continuously exert dissatisfaction against his partner but not in a volatile manner that would cause hurt. The woman would not object but merely avoid ventilating her anger against her aggressor. The second phase is when the woman becomes unable to control herself from the abuse, therefore starts withdrawing herself slowly. The aggressor, however, continuous to abuse her as he understands that the more vulnerable the woman is, the easier it is for him to conduct such action. The third phase is when the aggressor profusely apologises to rekindle with his partner. The woman, at this moment who has became passive and vulnerable, believes that the aggressor would change and would not commit such abusive acts any longer. When these phases continue, it becomes a cycle that keeps repeating itself and has become a newfound habit for the battered woman.
In a situation that occurs where the battered woman kills his aggressor, the ‘cycle theory’ ends. In supporting the theory, the battered woman, at the moment of the attack, the accused is less likely to counter the abuse because she is filled with fear. Once the fear has subsided, the battered woman need not wait for a deadly attack to occur. This resembles the concept of ‘preventive self-defence’ . This usually presents a problem because a battered woman usually only kills her spouse after an attack has ended where there is no apparent threat present. The requirement to proving self-defence is that there has to be the presence of apparent or imminent danger. By applying the ‘learned helplessness’ theory along with the ‘cycle theory’, it allows the concept of ‘Battered Women Syndrome’ to be applied in court and provide support to conjugating the conviction of manslaughter.

Where this has been applied
United States
Wife abuse has been on an increase in the United States for a very long time. Researchers estimate that around twenty-eight million married women have been abused by their husbands. Usually, such cases end up with the woman killing her husband or domestic partner. In the late 1970s, defence lawyers have been researching and trying to find a way to ensure that these women are accused of neither murder nor culpable homicide . This began in the case of Little and Inez Garcia, two prisoners in a North Carolina jail. Both women were sexually abused and have been threatened to be raped again by the policemen and other prisoners. Both women then defended themselves by stabbing a policeman and killed one of the two men who raped with a shotgun she confiscated from another policeman, respectively. They were both acquitted on the ground of self-defence, where the jury considers the fact that the men have threatened to repeat the attack in culminating whether causing the death of these men is proportional in defending themselves.
Since then, women have found it necessary in defending themselves against their attackers. This often resorts to the prosecution of these women for murder and manslaughter. As years go by, cases involving rape victims and battered women continuously increase, and the issue on whether the legal system is serving any protection for these women arises. In the case of State v Norman , Judy Norman has been accused of murdering her husband by shooting him on the head. The husband, Mr. Norman, is an alcoholic who has been abusing her during their twenty-five years of marriage. The accused have been asked to prostitute herself for years, and treated her like a dog by ensuring that she stays on the floor and eats from the dog bowl. Every now and then, he will abuse her with whatever he finds available, from baseball bats to cigarette punts. The abuse continues with the pregnant accused, after having four children, being pushed down a flight of stairs, causing her baby to be born premature. Two days before the murder takes place, Mr. Norman was arrested for driving under influence, and once released from jail, abuses the accused all day long. When an officer was called by neighbours to check on the woman’s household, Judy Norman refuses to issue any arrest warrant against her husband. When her husband then threatened to kill her, she shot him in the head while he was sleeping.
The courts in the case of State v Norman had different judgments. At trial, the jury found Judy Norman guilty on voluntary manslaughter and she received a six-year sentence. She then appealed, alleging that the trial court failed to consider self-defence as an element on acquitting her. In the North Carolina Court of Appeal, the court decided that the accused killed her husband as a matter of self-defence and she suffers from ‘Battered Women Syndrome’, regardless of the argument by the State where she murdered her husband when he is of no violent state. The court stated that such action is closely related to the threat given by her husband and the murder takes place shortly after it happened.
The situation in State v Norman gave way to the legal system to start considering the extent of causing manslaughter upon the murdered, and the proportionality of retaliation instilled upon them. Before Norman, wife abuses in the United States have been continuously linked to the legal system. Police have been criticised for taking the role of mediator in domestic disputes, instead of immediately arresting the aggressor when a case is being reported. The issue then arises on whether the woman wants to issue an arrest warrant, similar to Norman. The court established four elements in deciding whether manslaughter is proportional to the harm that the accused is defending herself against. Firstly, the defendant must believe that it is necessary for her to kill the deceased to save herself. The court determined that it was necessary considering the long history of abuse and battering, which leads to defending herself before she is killed. Secondly, the defendant’s belief was reasonable in that the circumstances as they appeared to be sufficient. Objectively, the court relied upon expert witnesses who explained that the accused suffers from ‘Battered Women Syndrome’ and exhibits the nature of ‘learned helplessness’. Her inability to remove herself from all the abuses for twenty-five years showcases the vulnerability and the passiveness psychologically. Third, the defendant must not be the aggressor that started the fight that occurs without any provocation. Since there is an absence of a confrontation against the aggressor, the court takes into consideration that her inability to protect herself during a fight triggers the necessity for her to shoot her husband when he is asleep for the defendant took the first opportunity to defend herself and escape all the abuses she has suffered. Lastly, the defendant did not use force excessively where her actions must not be more than necessary. The court simply states that this element is clearly fulfilled based on expert testimony, witnesses that paves way for the defendant herself to exclude herself from death or any greater bodily harm, as per mentioned in the first element.
Similarly, in the case of State v Leidholm , the husband was asleep when the accused murdered him. The North Dakota Supreme Court stated that if the facts and circumstances are sufficient in letting the accused to believe that she cannot retreat from the assailant with safety, her use of deadly force is justified. Courts in the United States have placed a greater emphasis on the probability that an attack will occur and the impending nature of an attack, and place less emphasis on the whether the attack is immediate at the time it occurred.

Canada
Canada is one of the first countries to apply the usage of ‘Battered Women Syndrome’.

In the landmark case of R v. Lavallee , the accused has been living with her aggressor for four years. On the day of the incident, both the accused and her partner had a gathering at their house, where when most of the guests have departed, the accused and her partner had an argument where the partner then pushed her down a flight of stairs. The accused then ran outside of her house to ask for help from her neighbours, when her partner came looking for her. The accused then ran into the house and hid herself in the closet in their bedroom. Her partner then came in and opened the closet and hit her. He then exerted a gun and gave it to her and shot their bedroom window. When he reloaded the gun, he stated “You’re my old lady. You do as you’re told. Either you kill me or I’ll kill you.” When her partner put the gun next to the accused and turned around, the accused picked the gun up and shot him in the head. The accused was found talking to herself and crying when police came and arrested

her.
When the psychiatrist who interviewed the accused was brought in as a witness during trial, he mentioned that there have been no hospital records of the accused being examined for the bruises and the cuts she has on her body, which proves that the accused does suffer from ‘Battered Women Syndrome’. He also assumed that the accused had homicidal fantasies of her partner and smoked marijuana right before the incident happened. After thorough research on the evidences presented in court, the court decided that the jury should not ignore any evidence provided by experts because any evidence given by experts, although may be theory-based, is admissible in court therefore must be considered in providing their judgment. The court held that the appeal to retrial is allowed.
This case establishes the usage of ‘Battered Women Syndrome’ in deciding whether one’s woman experience and perspective is relevant in using self-defence as the only solution to acquit herself from being convicted for manslaughter. This case also imparts the usage of expert witnesses in courts to differ between stereotypes and myths assumed by the jury with factual basis that is based on researches admissible in court. It allows the jury to understand that even if she had already killed her partner when he turned away from her, she still believes that she is in imminent danger. Her action of shooting him, at first, was for the purpose of injuring him, but since she did out of fear, the shot killed him instead. The expert evidence shows that the act of shooting her aggressor was not too violent because the gun is already loaded and assuming she did not shoot him, he would have done so.

Australia
In Australia, the Western Australian Criminal Code states that 'when a person is unlawfully assaulted in such a way as to cause reasonable apprehension of death or grievous bodily harm and the person assaulted believes on reasonable grounds that (s)he cannot otherwise be saved, there is justification for using deadly force against the assailant' . The Australian courts have not issued any law extending the concept of provocation in measuring whether one may inflict harm in cases of domestic abuse, which does not serve the purpose of the above provision.
In the case of R v. R , the accused has been abused and tortured for almost three decades. After finding out that her husband had raped and wounded one daughter and has sexually abused all her daughter, the accused killed the deceased when he was asleep thirty-six hours after she found out. The court held that self-defence was not an option. The concept of provocation is Australia is of the idea of immediacy, where it has to be immediate, thus the judge refuse to allow provocation to go to the jury. The decision was mostly influenced due to public pressure, and under appeal, the court held that the decisions should have been left to the jury. Because of that, she was acquitted.
Such decision by the court has caused controversies especially in newspapers where there are contradictory opinions on the judgment made. A commentator in newspaper Bulletin remarked that “…So why is it that a man who kills his wife because he finds her in bed with a lover can have a charge of murder reduced to manslaughter, with the expectation that the judge will impose a light sentence because he understands how the man must have felt. Meanwhile a woman who kills her husband after brooding about his having been raping her daughters for 20 years is convicted of murder because she thought about it too long…”
Experts, after the case of R v. Bradshaw , where the accused was convicted for “merely having anger” instead of proper self-defence, proposed that judges use the objective standard used by the courts in United States. So far, judges are prone to stress upon the concepts of cooling off and ‘proportionality of response’. Courts refuse to allow expert’s testimony to be admitted as evidence to prove the reasonable behaviour of a battered woman, and fully relying on the common knowledge rule and the ultimate issue rule. The common knowledge rule states that experts are not permitted to testify about subjects which are already understood by the average juror. The ultimate issue rule does not allow testimony which could be construed as giving an opinion on the guilt or innocence of the defendant. Both of these rules promote the inadmissibility of expert witnesses . The issue with this is that juries are often persuaded by stereotypes, thus making decisions out of their own account instead of taking into consideration circumstances that may lead to such action, thus confirming the objective test.

Criticisms against ‘Battered Women Syndrome’
‘Battered Women Syndrome’ is often used as a supportive evidence that prevents a woman who have murdered her husband from being convicted, provided that she manages to prove through evidence that she is suffering from the syndrome.

The issue with this syndrome is the extent of defining the syndrome in applying in courts during trial. There are ample theories on what is ‘Battered Women Syndrome’ but none of it provides any certainties in ensuring a fixed platform for judges or juries to base their decisions upon. Their decisions are heavily influenced with the basis of the law of

provocation.
Law of provocation often requires the defence council to prove that there is presence of imminent and immediate danger. There has to be a provocation that pushes a person to commit either murder or grievous hurt against another in order to emit themselves from being convicted. Their action must also be proportional to the provocation imposed against them. When applying the ‘Battered Women Syndrome’, both elements of provocation become impossible to fulfil. According to Mr. Muhammad Adhwa’ Azfar bin Muhammad Tajuddin (Mr. Azfar), a criminal lawyer, he states that provocation in ‘Battered Women Syndrome’ differs from the basic law of provocation, therefore the issue of provocation needs to be pre-defined in determining how can the syndrome be used as a defence. More often than not, the accused is convicted because they fail to prove that the timeline from when they were provoked to when they kill is ample for ‘imminent danger’ . It becomes problematic when the provocation exists in an environment where there is no immediate incident that can be construed as threatening . If the traditional law of provocation is applied, the woman may plead guilty to murder or manslaughter. When this happens, it does not give way for ‘Battered Women Syndrome’ to be applied.
After considering the theories of ‘learned helplessness’ and ‘cycle theory’, the issue which arises is the woman’s capability to make decisions and rationalise under circumstances where she could have drastically changed mentally. In the famous case of Francine Hughes, who opened up the plight to the recognition of ‘Battered Women Syndrome’ in United States, although have done such, subjected her plea to temporary insanity. If doctors have the ability to produce evidence that the woman is suffering from insanity, temporarily or permanently, it showcases that when a woman is considered psychologically paralysed, she has become insane in a legal perspective. This defeats the purpose of ‘Battered Women Syndrome’, for if one is charged from being insane, she would be acquitted though however would be sent to mental institution for rehabilitation. There are also questions which implore on the fact that these women could have left when they wanted to. Feminists and psychological experts report that a woman stays primarily out of shame or fear that her husband might find her if she leaves, economic hardship, and the woman's belief in her husband's reform. Despite these reasons, the popular misconception that these women are "sick" or "masochistic" still prevails . However, there is a stigma attached to those suffering from an unsound mind, as per Mimi Sintia binti Hj. Mohd Bajury, a criminal law lecturer, who differentiates between a woman who is mentally insane and one who is psychologically paralysed. She mentions that it is unfair for the courts to assume that both illnesses are on par with each other.
Another important criticism is the extent of expansion of the application of ‘Battered Women Syndrome’ if the courts continue to recognise the syndrome as an extension to the law of provocation. Although many have used the syndrome as a defence, there have been many controversies circulating the usage of such syndrome. The main arguments against the use of ‘Battered Women Syndrome’ as self-defence very ironically revolve around discussions of the judicial and societal purported ideal of gender equality. Thus, they allege that BWS gives women special dispensation under the law to kill, exploits traditional stereotypes about women, and violates the due process rights of male homicide defendants and victims . According to Mr. Azfar, by allowing this syndrome to be put into practice when it has not been properly defined and examined, it allows many women have been accused of murdering their partners, to claim that they suffer from ‘Battered Women Syndrome’. These easily open up many floodgates and therefore not provide any solution to the legal system.