Title:
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Legal defences for battered women who kill : the battered woman syndrome, expert testimony and law reform
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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.
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