My inquiry question this semester is: What problems do Canadian Women face when using the Battered Woman Syndrome Defence in Courts?
This blog post will explain the battered woman syndrome from a medical and judicial perspective. Finally, it will also include a brief description of how the defence came to be.
What is BWS?
Battered woman syndrome (BWS) is a psychological condition in women who have gone through or are currently experiencing abuse or domestic violence. Currently, the American Psychiatric Association considers it a “subcategory” of PTSD (Kippert, 2022). Women with this syndrome feel “helpless;” as a result, they think they “deserve the abuse.” In many cases, these women “don’t report” the abuse to the police or loved ones. This syndrome is relevant in the justice system because it can play a role in the way women respond when they feel their lives are in danger. Some may think that the only solution for their situation is to kill their batterers (Kristen Jordan Shamus, Detroit Free Press, 2018).
How does the BWS defence work in Canadian law?
In Canada, the BWS defence is an extension of self-defence. In other words, having BWS may be used to justify self-defence in cases where women defend themselves against their batterers. These cases must still be judged based on the rules of self-defence;
1- The victim must have thought that they were under attack.
2- The action must have been reasonable (for a defensive reason and not revenge.).
3-The force used must be reasonable given the circumstances (they cannot use more force than necessary to escape the attack) (Gibson, 2022).
What is the history of the BWS defence?
R.v Lavallee established the battered woman syndrome as a defence in Canadian courts in 1990 because it proved the need to relax the imminence rule and demonstrated the impact of expert testimony in cases involving abused women.
R.v Lavallee showed to the Supreme Court of Canada the significance of considering expert testimony “admissible” to successfully argue in favour of a battered woman who kills or assaults her abuser. That is, her lawyer used the statement of a psychologist to demonstrate why BWS might turn battered women’s actions “reasonable within the circumstances” (Shaffer, 1990, pp. 4–6).
In addition, his evidence in R.v Lavallee convinced the Court to adopt the historical decision to relax “the criterion of imminence” in cases involving females who have BWS. Although it was never a mandatory requirement, imminent danger had always been a “factor considered” by the judge or jury when evaluating the reasonableness of the acts in self-defence arguments. The Court agreed that utilizing it as a determinant factor would not consider most battered women’s experiences; “the disparity of physical strength” between them and the batterer prevents them from killing or assaulting while being attacked.
Several successful BWS defences were made after it, for R.v Lavallee provided a precedent for them. However, the crucial decisions involved in R.v Lavallee did not modify the principles of self-defence laws. This created struggles in the use and interpretation of the defence. (Sheehy, 2013, Chapter 1).
I will be discussing these problems in the next blog post.
Gibson, D. (2022). All about Law: Exploring the Canadian Legal System (5th or later Edition). Nelson Canada.
Kippert, A. (2022, March 4). What Is Battered Woman Syndrome? DomesticShelters.Org. https://www.domesticshelters.org/articles/legal/what-is-battered-woman-syndrome
Kristen Jordan Shamus, Detroit Free Press. (2018, December 19). What is Battered Woman Syndrome? And can it be a defense for murder? Detroit Free Press. Retrieved March 4, 2022, from https://eu.freep.com/story/news/local/michigan/2018/12/19/battered-women-syndrome- defense-domestic-violence/2273630002/
Shaffer, M. (1990). R. v. Lavallee: A Review Essay. The Ottawa Law Review. https://canlii.ca/t/29hd
Sheehy, E. A. (2013). Defending Battered Women on Trial: Lessons from the Transcripts (Law and Society) (3rd ed.). UBC Press. https://doi.org/10.1017/cls.2015.31