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Title: Legal defences for battered women who kill : the battered woman syndrome, expert testimony and law reform
Author: Casey, Juliette
ISNI:       0000 0004 2695 7353
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 1999
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Law's representation of women has long been a source of debate among feminists. In this thesis, I engage with this debate on a number of different levels specifically in the context of battered women who kill. Although three defences are commonly canvassed, self defence, provocation and diminished responsibility, I limit my proposal for reform to the defence of provocation. My particular proposal involves looking at the possibility of combining expert testimony on the battered woman syndrome with the substantive elements ofthat defence in Britain. In part one I begin by setting the defence of provocation in its proper doctrinal framework. Thus, in the introduction I argue that provocation is properly conceptualised as a partial excuse. Using Fletcher's theory of the individualisation of excusing conditions, I highlight the limitations of the reasonable man standard which represents the greatest obstacle at the level of the substantive law for battered women who plead provocation. The tension arises out of, on the one hand, the use of an abstract standard and, on the other, the need to include and give proper recognition to individual experiences. I build on this foundation in chapter one where I look at all ofthe problematic elements of the defence through the lens of advocates practising at the Bar in Scotland. Here I pay particular attention to advocates' attitudes towards using battered woman syndrome evidence in conjunction with provocation. In chapter two I go on to set these problems in the context of a wider feminist critique ofthe reasons for the lack of fit between law and the experiences of women generally. Negatively, feminists attack law's claim to universality and they locate bias at both the level of law's content and form. Positively, they argue that the experiences of women can only be represented properly once law takes account ofthe complexity ofwomen's subjectivity. Here I will focus on one way of describing this complexity; separation and connection. I also explore one formative influence on the doctrine of provocation, that of the man of honour, and I highlight some of the code's possibilities for battered women who kill. The next section comprises three chapters and entails a comparative analysis of the substantive law in England and Scotland on each of the three defences. I go on to suggest that the key difference between how self defence, but more importantly provocation, operates in the two jurisdictions lies in the greater potential for an individualised approach to the reasonableness requirement under English law. In the [mal section I begin in chapter six by describing how the syndrome has been used in other jurisdictions and, drawing on these experiences, I suggest how battered woman syndrome expert testimony could be used to help reinterpret the defence of provocation in Britain in a way which would help overcome many of the problems posed by the reasonableness standard. I argue that the correct classification for the syndrome is as a form of post traumatic stress disorder. Thus, conceptualised, the emphasis is placed on the abnormal nature of the stressor which corresponds with the experiences of battered women who are, most commonly, normal women placed in abnormal circumstances of violence. Finally, in chapter seven I shift the emphasis from the substantive to the evidential. Although the solution, which I explore, comes in the form of evidence, the system of evidence, acts to bar its admission. Chapter seven, therefore, focuses on two rules; the ultimate issue rule but more controversially, the knowledge and experience rule. This rule makes the admissibility of evidence on the battered woman syndrome conditional on the jury's lack of knowledge and experience. Here again, feminist criticisms expose the extent to which the experiences of battered women who kill are excluded by law as well as the reality of the extent of the jury's misunderstanding. These criticisms are not as well developed as criticisms of the reasonable man but feminists are beginning to highlight the need to open up this rule to embrace the range and diversity of women's experiences. Although the use of expert testimony on the battered woman syndrome is by no means a widely accepted reform measure I intend here to present a case for its adoption.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available