In a legal environment where attorneys formulated a “twinkie defense” to explain hyperglycemic homicide, it is no surprise that battered woman syndrome is a popular legal defense strategy. Domestic violence is a serious societal problem, which is often hidden behind closed doors. (Gillespie 4). When a woman murders her husband because he has been tormenting and abusing her physically and psychologically, defense attorneys often use the “battered woman defense,” which is a legal approach that focuses on emphasizing the woman as a victim who was only guilty of self defense (Wimberly). The condition can be used to help the court better understand the motives and experiences of a battered women, and why her circumstances may be considered mitigating circumstances, or even justification for homicide. However, claiming self-defense is not really applicable, because the cases usually do not meet any of the standard criteria for legal self-defense (Faigman).
Self-defense is defined as the right to prevent suffering force or violence through the use of a sufficient level of counteracting force or violence (“Self-Defense”). The women involved in these cases usually commit pre-meditated murder, often when the victim is sleeping, or otherwise not being aggressive or even unable to defend themselves (Gillespie 16-17). There is no imminent or immediate threat. An abusive relationship that continues for months or years does not meet the definition of imminent threat. It is a continuous or consistent threat. Furthermore, when there is conflict, the level of force is not “proportional”, and the force used is much more than is “sufficient” under most state laws. Finally, the defendant is obligate to try to flee (“Self-Defense”). Woman in abusive relationships have resources, many of them free of charge, such as shelters, that could offer escape from a potentially harmful situation. Other options, including restraining orders also offer reasonable alternatives to murder.
Initially successful in a number of cases, in recent years BWS has been challenged as a legal defense (Wimberly). There have been cases involving men as victims. Women who are socioeconomically affluent and financially independent also present a challenge; can they still be considered battered woman, even if they had the resources to leave and start a new life? Additionally, it is logical that not all battered woman who resort to violence suffering from a mental disorder, and are they more culpable than defendants with PTSD and/or BWS? Expert testimony on battered women syndrome is still used in cases, but is increasingly being used as an “excuse, rather than a justification.” Quite simply, some legal professionals believed that some abusers simply deserved what they got.
In the courtroom, battered woman syndrome is often used less as a defense and more as “background” to mitigate intent. It is used most effectively to explain the defendants state of mind, explain their actions, establish credibility, or introduce mitigating factors that may help in sentencing. As a form of justifiable murder in self-defense, it is not so effective, because the defendant did not “have their backs up against the wall” or placed in a situation they felt it was reasonable that they needed to murder the victim for their own survival. Obviously, as seen in the George Zimmerman case in Florida, with the “stand your ground” law, each state has their own self-defense laws. However, they share some common themes, which involve imminent threat, reasonable counterforce, and an inability to escape the situation (except in “Stand Your Ground” states). There is a castle doctrine that enables people more leeway when defending their homes, but in public there is usually a duty to retreat (Gillespie 14-17).
Most battered woman who murder their partners do not meet any of these definitions (Faigman). While the threat of violence in an abusive relationship may be consistent, and even probable, they are usually not imminent, which can be defined as a very short period of time leading to something. A person advancing on you with a knife in a menacing manner in a dark alley is an imminent threat. Battered women also have the physical ability to flee. They may not feel economically or emotionally prepared to flee, but they are usually not confined or imprisoned in their homes. Finally, murder is not a reasonable level of counterforce, unless their partner was planning to murder them, which may be difficult to determine in a heated situation, but it seems like an unreasonable level of force with which to end a domestic altercation.
However, there are legal scholars and psychological professionals who argue BWS can be a justification for murder. In “Defending Victims of Domestic Violence Who Kill Their Batterers: Using the Trial Expert to Change Social Norms,” Mary Helen Wiimberly, a litigation associate with Hogan Lovells, argues that BWS is being used to portray woman as irrational and hysterical victims. Instead expert testimony should focus on societal issues involving domestic violence, which explains the behavior of woman who murder in self-defense. Similar research and opinions seem to reflect the idea that there is no universal BWS pathology, and it needs to be treated on an individual basis, as mitigating factors.
Ultimately, the consensus is that BWS is a tough sell as a defense of justifiable homicide. It is difficult to fit BWS into the standard definition of self-defense, therefore, new theoretical frameworks, or defense models need to be constructed. BWS is not a traditional defense, but it is an effective tool to educate the public about domestic violence and the reasons woman feel trapped in a cycle of violence. Like “heat of passion” explanations for murder, it is not a defense, but aimed to mitigate intent, and generate sympathy for the defendant. Most battered woman situations do not meet legal definitions of self defense. There is no imminent or immediate threat; the defendant does not usually try to flee; the level of counterforce is unreasonably high; or meet the “reasonable man” standard of self-defense. Therefore it is not a defense, it is a legal explanation for a defendants behavior, and can be used by a defense attorney to accurately portray the violent landscape the defendant was negotiating. Since it is the defense attorneys obligation to zealously represent and advocate for their clients, the battered woman explanation and expert testimony regarding a defendants psychological state can be useful strategies to pursue in specific cases involving domestic violence and murder.
Faigman, David L. "The battered woman syndrome and self-defense: A legal and empirical dissent." Virginia Law Review (1986): 619-647.
Gillespie, Cynthia K. Justifiable homicide: Battered women, self-defense, and the law. Columbus: Ohio State University Press, 1989.
Leshchinskiy, Pavel. "Battered Person Syndrome." Battered Person Syndrome. N.p., n.d. Web. 19 Apr. 2015. <http://www.legalmatch.com/law-library/article/battered- person-syndrome.html>.
"Self-Defense Overview - FindLaw." Findlaw. N.p., n.d. Web. 19 Apr. 2015. <http://criminal.findlaw.com/criminal-law-basics/self-defense-overview.html>.
Walker, Lenore E. "The battered woman syndrome is a psychological consequence of abuse." Current controversies on family violence (1993): 133-153.
Wimberly, M. "Defending victims of domestic violence who kill their batterers: using the trial expert to change social norms." American Bar Association. 2007.