Or
Evidence Concerning Battering and Its
Effects

 1975 – Strauss and Gelles book show that 12% of married women were hit within the previous year, 20% in their lifetime.
 Late 1970s, special prosecution units set up in many major cities
 1980s, federal government supports research on mandatory arrest of batterers (report in ’84)
 Reagan convened White House task force on family violence (report in ’84)

 A Battered woman is one who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimated relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationships with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.
[L.
Walker, The Battered Woman (1979) at xv.] State v. Kelly,
Supreme Court of New Jersey, 91 N.J. 178.

District of Columbia Court of Appeals, 1983
407 A.2d 626.
 After beating his wife, Dr. Ibn-Tamas threated her with a gun. Through the course of an argument, Mrs. Ibn-Tamas picked up the gun and shot him 3 times.
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Mrs. I-T was convicted of second-degree murder and sentenced to prison for a period of one-to-five years.
Issues addressed on appeal included “the trials court’s exclusion of expert testimony offered by the defense on the subject of battered women.”

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Dr. Lenore Walker, clinical psychologist, expert on “battered women.”
Purpose of testimony:
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Inform the jury about class of persons known as “battered women.”
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Explain why their behavior deviates from that which a lay person would expect
Provide foundation of support to understand why Mrs. I-T perceived herself in imminent danger.
Studied 110 women who had been beaten by their husbands.
Identified three consecutive phases in the relationships:
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“tension building”
“acute battering incident”
“loving-contrite”
Typically low in self-esteem, feel powerless, have few close friends
 Believe that their husbands are both basically loving and caring and omnipotent, so there is no hope in resistance “learned helplessness”

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“Paltry universe”
No discussion of interview techniques
Interviewed only women, not husbands
No estimated margin for error
No record of method or that it was generally accepted in the field.
David Faigman (72 Va. L. Rev. 619) -- Walker research does not specify which groups of women experienced which phases of the cycle of violence
 only 58% of “battered women” experienced all three phases.
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The Walker cycle theory also does not explain why an abused woman strikes out at her mate when she does (despite “learned helplessness”).
Only 65% of the sample reported indicators of a tension-building phase before episodes of assaults.
Robert Schopp (U. Ill. L. Rev. 45) suggests that learned helplessness is more likely characteristic of battered women who remain in battering relationships without killing their batterers – those who kill apparently do not manifest learned helplessness.
Dr. Walker, regarding The Battered Woman, published between these decisions.
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“As a trained researcher, I felt uneasy about stating some of the conclusions in this book. They seemed too tentative to write down in the positive manner which I have used. Yet they are confirmed repeatedly by all the available data so far.”

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42 women who were charge with a crime in the death or serious injury, or such attempts, of their mates. Later compared with 205 women in abusive relationships not culminating in the use of deadly force.
Issue of self-reporting (do women make the men look bad?) – in these cases, all available police and hospital records and testimony of family members and witnesses were taken into account.
7 key dynamics were identified that distinguished battered women committing homicide from the control group:
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Frequency of abusive incidents, severity of injuries, frequency of forced or threatened sexual acts, man’s drug use, frequency of his intoxication, man’s threats to kill, and the woman’s threats to commit suicide.
Over time, physical abuse tended to become more severe in both groups, but the increase was more common in the homicide group.

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Report created in response to Congressional enactment of Violence against Women Act of 1994
Concludes that an extensive body of scientific and clinical knowledge strongly supports the validity and relevance of battering as a factor in the reactions and behavior of victims of domestic violence.
This knowledge is relevant at many points in the criminal justice process, from charging through sentencing – expert testimony can provide information that helps factfinders in their deliberations, dispels common misconceptions, or interprets the behavior of the battered women.
With significant variations, expert testimony on battering and its effects is admissible or has been admitted without discussion in each of the 50 states plus the District of Columbia.

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“Battered woman syndrome” implies that a single effect or set of effects characterizes the responses of all batterer women – this is not supported by research findings or clinical experience.
The word “syndrome” may be misleading, by carrying connotations of pathology or disease, or that it may create a false perception that the battered woman
“suffers from” a mental defect.
Over whelming preference to refer to evidence or expert testimony “on battering and its effects.”
The term “battered woman syndrome” portrays a stereotypic image of battered women as helpless, passive, or psychologically impaired, and battering relationships as matching a single pattern, which might not apply in individual cases.

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A battered woman is being tried for a crime and introduces a defense of self-dense, coercion, duress or insanity
A battered woman has been charged with or convicted of a crime and such evidence is offered to support mitigating factors in charging and sentencing .
When a batterer is on trial for murder or assault, such evidence can be raised to explain the battered woman’s behavior in the context of battering and its effects.
In a case involving battering, counsel wants to address potential myths or misconceptions about domestic violence that might be held by the judge of jury.

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Umbrella term suggesting a collection of possible clinical observations of Battered Women.
 Nature and Dynamics of Domestic Violence
 Several distinctive patterns of violence can influence a battered woman (not simply the “cycle of violence” or “learned helplessness”)
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Individual appraisal of a situation as dangerous
 A battered woman has the unfortunately opportunity to learn subtle behavioral clues that signal danger
Post Traumatic Stress Disorder (prevalence 31-84% BW)
 Exceptional mental conditions (amnesic or dissociative states, flashbacks, etc.) may impair her capacity to understand the nature and consequences or ethicality of what she was doing
 She may experience a new situation as dangerous due to reexperiencing prior trauma through flashbacks – her fear is genuine, but maybe not based on objective reality.

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Expert testimony regarding presence of PTSD may explain a battered woman’s demeanor and response to the offense (lack of emotion or very angry, dissociative amnesia, posttraumatic guilt, shame, or depression leads to only weak avoidance of punishment.
A Battered woman’s coping behaviors can be misinterpreted to suggest that the abuse was not serious or it was her fault.
Testimony serves to:
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Explain a battered woman’s behavior, such as recanting testimony or not prosecuting battering spouse
 Explain reasons for continued involvement in an abusive relationship

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Admissible to some extent in all 50 states
Allowed by 16/19 federal courts that have considered the issue
12 states with admissibility statutes (with some subsequent limitations by courts)
29% of state courts admitted expert testimony in nontraditional selfdefense situations (e.g., battered woman kills her batterer when he is asleep)
 20% when the battered woman hires a third party to kill him
40% of states require that the defendant raise a self-defense claim in order to introduce expert testimony on battering and its effects
75%+ of the states have found expert testimony admissible to prove that the defendant is a battered woman or that she “suffers from battered woman syndrome.”
70% have found “generic” expert testimony admissible to explain battering and its effects without reference to a specific defendant.
20% explicitly preclude experts from testifying that the defendant is a battered woman

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70% to supporting a self-defense claim
70% to the issue of the defendant’s state of mind
2/3 of states to the question of why the defendant did not leave the battering relationship
33% to rebut common myths and misperceptions about battered women
30% to prove a defendant’s diminished capacity or lack of intent (legal insanity)
25% to bolster the defendant’s credibility
20% To show the existence of mitigating factors in the defendant’s favor at the sentencing phase of the trial

 Concerns:
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Use of evidence regarding battering and its effects to correct stereotypes and thereby restore credibility may distort the jury’s analysis in a different direction.
Even if the science isn’t quite there… shouldn’t we help victim’s of battering escape the a jury’s prejudices? Does the direction that courts and legislatures now take amount to a normative judgment about social imbalance? Did, in response to public opinion, courts and legislatures created an
“out” for battered women?
Society’s ambivalent attitudes toward self-help violence/ violence against “unworthy” victims. (defense strategy to portray a victim such that “the jury is ready to dig up the deceased and shoot him all over again.”)

Section 3.04
(1) Use of Force Justifiable for Protection of the
Person . Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(2)(b)(ii)((3) – the actor must believe deadly force is necessary to protect himself against death , serious bodily harm , kidnapping or sexual intercourse compelled by force of threat.

Supreme Court of Wyoming, 1984
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Assume that similar evidence of batter and its effects apply to child cases as well.
14 years of beatings
Night of the fathers death, Richard J. received a severe beating. His father, while leaving, said “… I don’t want you to be here when I get back. I don’t care what I have to do, I’m going to get rid of you. I don’t know how but I’m going to get rid of you, you bastard.”
The mother testified that the father always carried a gun,
Richard believed that to be the case that night.
Richard stashed guns all around the house but wrestled with recollecting them because the father would kill him for hiding them.
The father arrived, stomping, which signaled to Richard that he was in for a beating.
He shot his father with a shot gun when he entered.
QUESTION: does Richard’s perception of immediate danger deserve to be explained as different from that of a non-brutalized person? That his behavior was the response of a battered person to danger?

Supreme Court of North Carolina,1989
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39-year-old defendant badly abused by her husband during most of their 25-yr marriage. He punched, kicked, threw beer bottles, burned her with cigarettes or hot coffee, forced her into prostitution at a local truck stop, forced her to eat pet food from a bowl on the floor, threatened to kill her, etc.
She tried to kill herself after he beat her so badly that she called the police. When Paramedics came, he insisted that they let her die, but a sheriff’s deputy chased him off. She attempted to have him committed, but he threatened to cut her throat before he was taken. She went to social services to apply for welfare so she wouldn’t have to prostitute herself, but he dragged her from the interview and beat her and burned her with cigarettes.
She “believed herself to be doomed… to a life of the worst kind of torture and abuse… that it would only get worse, and that death was inevitable.”
She brought her grandchild to her mother’s house while her husband slept, returned, tried to shoot her husband in the back of the head. The gun jammed, she fixed it and shot him. She shot him twice more in the back of the head.
Should the court allow expert testimony? Does this meet the imminent threat requirement of self-defense?