20th WCP: Moral Implications of the Battered Woman Syndrome

Introduction

The case of battered women who kill raises some interesting questions regarding the criminal justice system's ability to respond to domestic violence. The Battered Woman Syndrome, like the Cycle Theory of Violence, helps to illuminate the situation of the battered woman, why she does not just leave the relationship, and why some domestic violence relationships end in the death of the batterer. However, it may also contribute to the violence of domestic violence.

In this paper I begin by delineating some of the circumstances of a domestic violence situation. I then discuss the particular moral issue of subjectivity or moral personhood involved in instances wherein a woman victimized by domestic violence responds by killing her batterer. Finally, I argue that the battered woman syndrome and similar alternatives to or qualifications of self-defense are problematic because they strip a woman of her moral subjectivity. I conclude with a brief articulation of a proposal for reform of the criminal justice system specifically aimed at cases wherein there has been a long history of abuse or violence.

Domestic Violence

Domestic violence is defined as violence among intimates. It raises problems for our moral and legal systems in that it is often characterized by a loving partnership wherein one or both of the partners commits a violent crime against the other partner. (1) The Cycle Theory of Violence, articulated by Lenore Walker, helps to clarify domestic violence and says that abuse tends to occur according to a particular pattern. There are three basic stages to this pattern. The first stage is characterized by tension between the pair. During this tension building stage, relatively minor incidents increase the tension in the relationship and culminate in the eruption of violence.

The next stage in the cycle of violence is the violent incident. The violence may be short lived or last for a few days. Often it is at this stage that police are notified or legal proceedings begun.

The third stage is referred to as the "honeymoon" or "loving contrition" stage. During this time, the abuser is often very loving and remorseful. Promises are made by the batterer that he will not violently abuse the woman again. This stage reinforces the woman's hope that the relationship will get better or is at least salvageable. Since there is a sincere belief that the violence in the relationship has ended, civil and criminal legal proceedings may be dropped or otherwise aborted.

The cycle repeats itself and violence becomes more intense, the tension building stage lengthens, and the honeymoon stage decreases or disappears entirely. Walker theorizes that it is at the point when the loving contrition disappears that the woman is best able to leave the abusive relationship. The external reinforcement to maintain the relationship has ceased to exist.

Gradually the autonomy of the individual who is victimized by domestic violence erodes. She becomes fearful of making a decision on her own. The coercive control the batter has over his partner may cause the person victimized by domestic violence to no longer see herself as a decision-maker. Her self-esteem and capacity to make independent decisions are impacted and the violently coercive message may be reinforced by a culture that presents violence as a means to solve conflict. (2)

In unlearning violence as individuals and as a society, we discover that violence is not solely constituted by physical acts of aggression or harm. Violence may also entail the myriad ways in which we dehumanize one another. Denying another person's moral subjectivity is an example of dehumanization and often occurs in legal cases wherein the battered woman syndrome is admitted as testimony. We have, then, a social responsibility to critically evaluate the legal and moral implications of how domestic violence is perceived. (3)

Battered Woman Syndrome

The Battered Woman Syndrome (BWS) is a psychological term used to describe women who are stuck within or have recently left a violent relationship characterized by the cycle of violence. BWS is modeled after the Post Traumatic Stress Syndrome suffered by Vietnam Veterans and later applied to people victimized by rape. Walker refers to the Battered Woman Syndrome as a sort of learned helplessness. The cycle of violence emphasizes physical violence but "physical abuse rarely occurs without psychological abuse." (4) Psychological abuse takes the form of verbal put-downs as well as social and economic isolation. This psychological abuse degrades and humiliates the woman thereby facilitating the destruction of her self-esteem and by implication her moral personhood. She learns to be helpless as a survival mechanism so as to delay incurring the wrath of the batterer/decision maker/controller.

Nancy Rourke mistakenly construes BWS as "a reaction by the victim to the trauma of domestic violence which leads the victim to strike out and kill the abuser, as a substantive defense." (5) While striking out and killing a batterer is certainly one among many forms of "substantive defense" against abuse, the Battered Woman Syndrome is a psychological description that only explains a woman's possible psychological state after or during being traumatized by domestic violence. It does not necessarily lead her to kill nor does it justify such an action. Rather, expert testimony on the battered woman syndrome is merely used in "battered women who kill" cases on the supposition that such testimony helps the jury to understand why the woman's actions might be considered self-defense.

There are, however, some serious problems with so using BWS in self-defense cases. The Battered Woman Syndrome ought not to be seen as a way to absolve a woman of responsibility for her actions. Yet juries often understand BWS as mental incapacity. As Charles Ewing points out, if the jury believes a woman suffers from a mental incapacity, then she cannot be considered as acting in a reasonable manner, which is what is required by the self-defense standard. If a woman who kills her batterer in self-defense is seen as not responsible for her actions because of a mental incapacity (BWS), then she continues to exist in an invisible moral realm wherein she is not perceived as exercising or capable of exercising full moral personhood. (6) This is further explicated in the distinction between being "victimized" and being a "victim."

The Battered Woman Syndrome has been used to categorize a woman who is abused by an intimate as "victim." To refer to the woman as a "victim" indicates a static state of being. Within this state one's moral decision making capacities are limited and/or controlled by others, whether it be those who, like the batterer, have their own self-interest at heart, or those who have the "victim's" interest at heart. The Battered Woman Syndrome functions in this way in that it tends to point to a sort of environmental determinism. That is, BWS attributes a woman's behavior to the environmental conditions in which she lives. As an autonomous agent she is absolved of her responsibility because it is perceived that her environment determined her actions. This is the opposite of how domestic violence had been perceived historically. Social mores and the legal system used to treat the woman victimized by domestic violence as the guilty partner. She was viewed as having done something to deserve the beating or perhaps even as somehow enjoying the beating.

Thus, for society to label the woman as "victim" is to deprive her of her moral subjectivity and establish a separate standard of reasonableness legally. (7) However, for society to ignore the circumstances that surround her and limit her possible decisions is to legitimate an unjust situation of domestic violence. This is why our moral reasoning must make room for the notion of a moral agent being "victimized." To recognized that a woman has been or is being victimized by domestic violence does not take away her moral decision making or absolve her of responsibility. It merely points out that decision making takes place within a particular situation that may limit the decisions themselves.

Rourke also argues that women victimized by domestic violence must struggle to "shift the locus of control" and change self-perceptions out of being victims. Reclaiming the locus of control means that the person victimized by domestic violence must assume responsibility for herself and her decisions. Doing so allows her to see herself as an autonomous agent and may also influence the perception her batterer has of her. The batterer sees her as a person, capable of making her own decisions, and Rourke adds that the court proceeding may "be the first time that the offender has to take his victim seriously." (8)

In her discussion of the history of the treatment of battered women in the United States, Elizabeth Pleck describes how shelters learned that a woman seeking service must make her own decisions, even if she decides to return to the violent (or potentially violent) home situation. (9) Advocates were to support her choice while also communicating to her that she is free to choose and that she will not be denied services regardless of the choice or the consequences of that choice. To deprive the woman of her free choice contributed to the violence of her situation because it reinforced her lack of self-esteem and thereby further diminished her already damaged moral subjectivity.

Practical legal implications

For the particular cases in which a woman who has been victimized by domestic violence kills her batterer, the criminal justice system needs another category of defense. Self-defense, which is commonly used in these cases, only works infrequently. The majority of women tried serve at least some jail time even if they have expert testimony on the battered woman syndrome. (10)

"Self-defense is defined as the justifiable commission of a criminal act by using the least amount of force necessary to prevent imminent bodily harm which needs only to be reasonable perceived as about to happen." (11) In self-defense, one actively chooses and participates in a response to the threat of harm by inflicting harm on the offender. However, because one is reasonably responding to the threat on one's own life, one is not held morally blameworthy for his/her action. Though, of course, having chosen the response (albeit under coercive conditions) one is responsible for one's actions. However, when the battered woman syndrome is admitted in a homicide case (i.e., the "battered woman defense" (12) ), then the jury may perceive the woman as in some way mentally incapacitated. If she is mentally incapacitated then she cannot be viewed as having reasonably responded to the threat of harm. On the other hand, if testimony on the battered woman syndrome is not admitted then the potential for acquittal is slim. (13)

The person victimized by domestic violence is in a double bind. If she stays in the victim-role she will most likely stay under the coercive and/or abusive control of her batterer or step into similar relationships in the future (including the control exercised by the legal system and/or social services). If, on the other hand, she asserts her autonomy, i.e., her personhood, she also risks being victimized by further violence as her batterer may assert more intense violence in an attempt to maintain the control he sees potentially slipping away. The logical extension of what I have argued above indicates that the latter option is the better moral option.

The argument that leads to this conclusion may be posed as a standard dilemma: Either the person victimized by domestic violence continues to be perceived in the victim role or she is seen as victimized by domestic violence but is nonetheless a responsible moral agent albeit constrained by her circumstances. If she stays in the victim-role, she loses moral autonomy/subjectivity or the capacity to participate in the decisions that affect her life, and remains in an abusive situation. If she leaves the victim-role and her autonomy is asserted, she gains some degree of moral personhood and begins to regain control over the decisions that affect her life projects, but may be further victimized by violence. The choice then is between remaining in the victim-role suffering further violence and demoralization, or regaining some degree of personhood and potentially being further stalked by violence.

The key to resolving this dilemma is both that moral autonomy is superior to moral invisibility, and that the potential for violence is present in both cases but the guarantee for violence is stronger in the former case. If she casts off the victim-role and there is no further violence then she has won. If she remains in the victim-role, there will certainly be further violence (physical or psychological). She has lost both in terms of the physical harm and in terms of the harm to her moral self.

Because of this dilemma with using the battered woman syndrome, and because it seems to posit a special standard of "reasonableness" for battered women, Ewing proposes an alternative form of legal defense which may be used not only for all cases wherein there has been a history of abuse/victimization. Ewing's theory is called "psychological self-defense" and

would justify the use of deadly force only where such force appeared reasonably necessary to prevent the infliction of extremely serious psychological injury...defined as gross and enduring impairment of one's psychological functioning which significantly limits the meaning and value of one's physical existence. (14)

Ewing's proposal, however, like the more traditional "battered woman defense" response, relies on a special standard of reasonableness. His proposal alters the "standard of reasonableness," or what a reasonable person would do in a similar situation. Using a defense that relies on a specific standard of reasonableness requires a jury to both understand that standard and to see the accused as operating accordingly.

Instead, the reforms to the criminal justice system should not be centered on different standards of reasonableness but rather on different levels of responsibility. We could, for instance, set a category of "responsible homicide," emphasizing "responsible but not blameworthy." "Responsible homicide" would still be a serious crime for which a person would be held legally accountable; morally, the agent would maintain subjective responsibility for her actions. It would be less serious than involuntary manslaughter and would carry, at best, a modified form of punishment (e.g., a person might be sentenced to domestic violence education and morally relevant community service). One implication is that the battered woman who kills is found guilty of "responsible homicide." A benefit is that the jury does not have to assess the reasonableness of the defendant and there is no alternative or separate standard of reasonableness for the battered woman, i.e., the standard of reasonableness in jurisprudence is not altered. Additionally, the law against homicide maintains its deterrent effect while also acknowledging the coercive context within which battered women perceive murder as their only option.

Ann Jones argues that among the reasons so many women who kill their batterers are convicted despite all the evidence of continued abuse and self-defense, is that society fails to see women as fully human. Instead, a male-oriented legal system looks for reasons to see the woman as "hysterical," as getting some sort of "masochistic thrill" out of abuse, or as in some way "deserving" the abusive treatment. Jones argues that anti-woman propaganda contributes to the societal failure to see women as persons deserving of respect. (15) What I have argued here is that the Battered Woman Syndrome may also function to keep women from being seen as moral individuals deserving of respect.