Understanding the Battered Woman Who Kills Her Violent Partner-The Admissibility of Expert Evidence of Domestic Violence in Australia

Article excerpt

This article aims to challenge the traditional way in which evidence of the accused's personal history is presented and constructed in cases where battered women kill and rely on self-defence. Although an accused (and other witnesses) may provide an account of the history of violence and her lack of alternatives other than the use of force, the potential message of reasonable necessity that this evidence might convey is usually not realised. It is contended that the current evidentiary framework of "battered woman syndrome" (BWS) relied on for the presentation of "expert evidence" to educate judges and juries in cases where women kill their violent partners works against the efforts of defence counsel to make apparent the reality of the accused's situation. In this article, a fundamental shift from BWS evidence (with or without accompanying social framework evidence) to the reception of social framework evidence in its own right is proposed. This conceptual change aims to open the way for the legal system to think more creatively about the relevance of specific evidence relating to the personal experiences of the accused that is presented in cases where women kill their violent partners.

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This article aims to confront the prevailing legal mind-set towards the rules of evidence and the relevance of evidence about domestic violence (influenced by the North American experience) and to show defence counsel and judges a new way of thinking about evidentiary issues in cases involving battered women who kill. In seeking to address the inadequacies of the criminal justice system in relation to battered women who kill, a significant body of literature now exists that examines the operation of self-defence and the reception of expert evidence of "battered woman syndrome" (BWS). (1) This article considers the need for expert evidence in cases where battered women kill and rely on self-defence. However, it does not traverse the same arguments that have been advanced by other scholars in relation to BWS. Rather, the focus of this article is on a fundamental shift from BWS evidence (with or without accompanying social framework evidence) to the reception of social framework evidence in its own right. This article addresses the need for social framework evidence, the nature of the evidence that might be provided and the rules of evidence that would regulate its admissibility.

An Overview--Evidence of Domestic Violence and Self-defence

The relationship between the criminal law and the rules of evidence is central to the legal system's ability to appropriately comprehend the self-defence claims of battered women who kill. Self-defence is governed by the principle of reasonable necessity and the generalisations that have informed the law's understanding of reasonable self-defence have generally not reflected women's experiences. (2) Absent the raised knife/pointed gun scenario--the immediate confrontation--where the threat conforms to the paradigm case of self-defence and the seriousness of the threat is obvious, battered women need to be able to convey to the jury the necessity of the resort to fatal force in their circumstances. The ability to convey their reality is dependent on the way in which the threat and their options in response to the threat are constructed at trial.

A woman's perception of the threat faced and the assessment of the reasonableness of her response are intimately dependent upon detailed knowledge of that particular woman's experience of violence. In assessing the legitimacy of a woman's claim to use fatal self-defence, an appreciation of the interconnected and ongoing nature of the violence is essential. (3) The threat posed to women in a violent relationship and the options that are available in relation to that threat cannot be adequately understood by focusing on discrete acts of violence. In other words, domestic violence cannot be understood as a series of isolated incidents detached from the overall pattern of power and control within which the violence is situated. …