SOCI3085
(Winter)
1. Course Administration
• essays - are you still working on these?
• in-class current events presentations
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2. Shaffer - The Battered Woman Syndrome Revisited
• 1990 - R. v. Lavellee and the Supreme Court
position taken that evidence of wife-battering
could be relevant in establishing self-defence
for women charged with murdering their
abusive partners
• note concerns with this defence potentially
leading to depiction of women as ‘pathological’
or to negative stereotyping as only a certain
‘type’ of woman being allowed access to this
defence
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• background
- Lavellee in common-law relationship with
Rust
- shot Rust in back of head as he was leaving
bedroom to return to a party elsewhere in the
house
- claimed she was only trying to scare him
- long history of abuse
- Rust had threatened to kill her after the party
if she didn’t kill him first
- case rested on interpretation of S. 34(2) of the
Criminal Code
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• key questions/concerns around interpretation of
34(2): (1) must the threat be ‘imminent’ in an
immediate sense, or is anticipation of an attack
sufficient, given other evidence, and
(2) the accused had no other reasonable means
available to deter, defend against or escape from
the attack
• Dr. Fred Shane and the explication of
‘battered woman syndrome’ - learned helplessness
and prediction of the cycle of violence
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• Lavallee acquitted at trial, but acquittal overturned
by Manitoba Court of Appeal on technical grounds
that Shane’s testimony should not have been
admitted at trial, as a component of ‘self-defence’,
which the Appeal justices did not believe was a
reasonable defence given the circumstances, but
recommended instead a charge of manslaughter
(I.e. provocation)
• Supreme Court of Canada restored Lavallee
acquittal, ruling Shane’s testimony admissable,
and relevant to interpretation of S. 34(2)
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• Shaffer - the Lavallee decision as a ‘conundrum’
for feminists?
- positive in addressing the unusual nature of
domestic violence, and women’s vulnerability
and limited means to deter/prevent severe
physical violence
- e.g. R. v. Whynot (1983) - jane Whynot
Stafford and Billy Stafford
- brought attention to the whole issue of
spousal/partner abuse
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• however, the downside may be the portrayal of
battered women as suffering from a ‘syndrome’
or condition, undermining women’s ability to
portray themselves as rational and capable actors
• the depiction of battered women as
‘psychologically damaged’, as somehow
responsible for the battering as a result of their
condition
• the depiction of women as ‘helpless’
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• Shaffer - researched 35 cases following Lavallee
in which battered woman syndrome used as a
defence or consideration in sentencing
• 16 cases involved homicide
• Lavallee does not seem to have led to a dramatic
increase in this type of defence; and there is
some evidence that the ‘battered woman syndrome’
is being interpreted by those in the justice system
to portray women as ‘dysfunctional’ and incapable
of ‘rational’ action
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• e.g. R. v. Whitten (1992)
- Whitten 51 year old woman accused of
murdering common-law spouse Sampson
- Whitten characterized as having a tragic
personal history, abuse in previous marriage.
husband marries sister, suicide attempt,
psychiatric problems
- Sampson an alcoholic, relationship extremely
abusive, controlling
- Nov. 10, 1990, fright breaks out over dinner,
Sampson stabbed with steak knife
- Sampson refuses to go to hospital, wound
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apparently not serious
• four days later goes to hospital, five days later dies
• Whitten pleaded guilty to manslaughter - why?
- alcoholism
- psychiatric history
- had previously stabbed Sampson
“did not fit stereotype of abused woman”?
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Pulkingham - Private Troubles, Private Solutions
• poverty among divorced women, and the politics
of support enforcement and child custody
determination
• two main contemporary issues:
1. in divorce, women are much more likely to
suffer negative economic consequences
2. the emergence of ‘joint’ custody as a legal
standard, which further compounds the
negative economic consequences for women
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• the notion of the ‘primary caregiver’ as a new
standard - the parent with the primary responsibility
for child care before the separation/divorce should
be awarded sole custody
•Pulkingham - but is the ‘primary caregiver’ concept
really the solution?
- or, do the solutions to the problem lie outside
the law, in societal notions about the the family,
parental responsibility, and male and female
roles?
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• note rapid increase in the proportion of poor
women who are single or single mothers - and
note that wives have incomes equal to about
46% of husbands in the pre-divorce family why?
• also: tendency to equate women’s deserving
status in the case of divorce to their status as
mothers of children, ignoring that, children or
not, women are more likely to be poor, and to
suffer negative impacts from divorce
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• and, family matters are still by and large treated
as private matters by the state, to the extent that
family law is still based on the notion that
women must demonstrate their deserving status,
and the male partner must pay - although less than
50% of support orders are paid fully, and on time
• note then: while it is the female partner who is
negatively impacted, it is the children who are also
impacted - should the state step in here?
• note the tax advantages prior to May 1997 to
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fathers
• the primary caregiver issue:
- until mid-19th century, custody and guardianship
of children a paternal right
- mid-19th century, introduction of concept of
‘parens patriae’, giving, theoretically, the court
jurisdiction over children under age 7, including
the right to determine custody
- with the rising ‘cult of domesticity’ and middleclass prosperity, shift to considering females
the most appropriate caregivers (males as
instrumental, females as affective - Parsons)
- now, a shift to gender-equality in the concept
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of joint custody - but ignores structural inequality
- joint custody arrangements work to obscure the
importance of much of the unpaid work women
do as part of child-rearing
- however, still, statistics indicate that joint custody
arrangements remain a small proportion of custody
arrangements - why?
- the reality - old system, joint custody or primary
caregivers, women still shoulder most of the
responsibility for child care
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Pulkingham: in fact, what is needed is not a
“re-politicization” of women’s status in the family,
but rather a re-thinking of society’s responsibilities
around the family and child-rearing beyond the
context of the legal bond of marriage, a re-thinking
of parental responsibility and expectations beyond
legal obligations
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