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• What Is Battered Woman Syndrome?
• Expert Evidence On Battered Woman Syndrome

2. Battered woman syndrome

10 THIS CHAPTER EXPLAINS what battered woman syndrome is, the scientific

basis for it, and the role expert evidence on domestic violence can play in a criminal trial.

WHAT IS BATTERED WOMAN SYNDROME?

11 In the 1970s a number of researchers in the United States became interested in the issue of battered women and a literature began to develop on the topic.[9] This literature examined the psychological, social and economic aspects of domestic violence. Some of these researchers were asked to appear as expert witnesses in the trials of battered women accused of killing their partners. The expert witnesses explained why the battered woman stayed in the relationship and why she might have perceived danger whereas someone outside the relationship would not. Their testimony was largely based on the work of Dr Lenore Walker who had developed a construct known as battered woman syndrome (BWS).

12 In 1979 Walker published a study based on interviews with a non-random sample of 120 battered women.[10] From these interviews she developed two theories that were originally seen as the core of BWS: the theory of the cycle of violence and the application of the theory of learned helplessness to battered women.[11] In 1984 Walker published The Battered Woman Syndrome,[12] a research study that sought to test these theories.

Cycle of violence

13 According to the cycle of violence theory, battering in domestic relationships is neither random nor constant, but rather occurs in repeated cycles, each having three phases. The first phase is a period of tension building that leads up to the second phase, an acute battering incident. This is followed by the third phase, which consists of kind, loving, contrite behaviour displayed by the batterer to the woman. The third phase may also be characterised by an absence of tension or violence, which then takes on a positive value.

14 The third phase provides positive reinforcement for women to remain in the relationship. Often in the initial stages the women hope that the undesirable behaviour of phases one and two will not recur. However, over time, the tension building period becomes more pronounced and the periods of loving contrition diminish. Some battered women may terminate the relationship when the abusive behaviour begins to outweigh the loving behaviour. However, often the batterer will not permit the woman to leave. The batterer may use violence, threats of violence, financial threats or threats to take the children.

Learned helplessness

15 The theory of learned helplessness was originally developed by Martin Seligman to explain the effects of depression and was adapted by Walker in an attempt to explain why women find it difficult to leave a battering relationship. Seligman showed that laboratory animals that were subject to electrical shocks from which they were unable to escape would later fail to escape when escape was possible. Instead they would carry on with the behaviours they had developed in order to minimise the pain of the shock. Walker hypothesised that women who experienced violence that they were unable to control would, over time, develop a condition of “learned helplessness”, which would prevent them from perceiving or acting on opportunities to escape from the violence.

Criticism of cycle of violence and learned helplessness as applied to battered women

16 The cycle of violence theory has been criticised by commentators.[13] Faigman and Wright note that Walker’s data do not support a single pattern of violence in battering relationships.[14] Walker’s 1984 study found that 65 per cent of battering incidents showed signs of a tension building phase prior to the battering and in 58 per cent of incidents there was evidence of loving contrition afterwards.[15] Because Walker failed to indicate the number of relationships that included all three phases, the percentage of women who experienced the entire cycle may have been as low as 23 per cent or as high as 58 per cent. Researchers have identified other patterns of violence within abusive relationships.[16] Thus, while there is evidence that the cycle of violence typifies many violent relationships, it is not the only pattern.

17 Nevertheless, there is agreement on many of the common components of battering relationships.[17] Examples are: the presence of domineering and controlling behaviour on the part of the abusive male; the presence of psychological and emotional abuse from the abusive male, which may include threats to the woman and her family; the frequent presence of sexual abuse;[18] the destruction of property; and harm to pets¹⁹ and children.[20] Researchers have also consistently reported the potential for further violence when women attempt to leave a violent relationship[21] and the difficulties women have in disclosing the fact that they are being abused.[22]

18 The application of the theory of learned helplessness to battered women has also been strongly criticised. Faigman has questioned whether Seligman’s work with caged dogs is applicable to battered women.[23] A number of researchers, including Walker, found that battered women frequently took action in relation to their situation.[24] Walker herself later wrote:²⁵

Learned helplessness describes the process by which organisms learn that they cannot predict whether what they do will result in a particular outcome (Seligman, 1975). It does not mean they learn to behave in a helpless way ... One consequence for those who develop learned helplessness is the loss of their belief that they can reliably predict that a particular response will bring about their safety ... In the case of battered women with learned helplessness, they do not respond with total helplessness or passivity; rather, they narrow their choice of responses, opting for those that have the highest predictability of creating successful outcomes.

19 While there is evidence that human beings can develop learned helplessness as a response to negative events they cannot control,[26] there is no clear evidence that it is a condition battered women are typically subject to or that it explains passive behaviour when this is exhibited by battered women. Seligman noted that battered women who remain with abusive partners appear to be displaying maladaptive passivity but there is no clear evidence that this is due to learned helplessness.[27] Considerable research has shown that there are other compelling reasons – economic, sociological and psychological – that explain why battered women do not leave their abusive partners.[28] A major report on battering by the United States Department of Justice states:[29]

A number of factors or obstacles make terminating an abusive relationship difficult. Major factors ... include a lack of economic and other tangible resources, fear of retaliation [through harm to the battered woman or those important to her], and emotional attachment. Other factors include the desire to provide the children with a father in the home, shame and embarrassment, and denial of the severity of the abuse ... a battered woman’s fear that her abusive partner will escalate his violence toward her at the point she attempts to separate from or end the relationship with him is validated, generally, by homicide statistics.

Changing conceptions of battered woman syndrome

20 Walker’s work on battered women was not limited to the theories of the cycle of violence and learned helplessness but also described a number of negative psychological symptoms resulting from battering. There has been support for these findings in a number of other studies.[30] In her later work Walker has described BWS as a subset of post-traumatic stress disorder (PTSD), a psychological condition recognised in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV).[31] Studies of battered women have found rates of PTSD ranging from 31 to 84 per cent.[32] A study of women in the community found a prevalence rate of PTSD of 1 per cent.[33]

EXPERT EVIDENCE ON BATTERED WOMAN SYNDROME

Is battered woman syndrome itself a diagnosable condition?

21 We have consulted a panel of four forensic psychiatrists concerning BWS, as well as two clinical psychologists who have extensive experience in treating battered women and in giving expert evidence about battered women and battering relationships. Not unexpectedly, the two groups differed in their views.

22 The forensic psychiatrists were concerned with whether BWS is a diagnosable medical condition; their view was that it is not. They agreed that a person in a battering relationship may develop a mental condition as a result of the trauma, for example, depression or PTSD of such severity as to constitute a disorder, and such a disorder may be forensically relevant in a particular case. However, not all battered women develop such a disorder. Nor, in their view, is it possible to conclude that a particular disorder was caused by domestic battering rather than by some other trauma.

23 The clinical psychologists, on the other hand, were concerned with broader issues, including the psychological effects of battering and the economic and social factors that impinge on the state of mind of battered women. Their view was that BWS is a diagnosable subset of PTSD and that there are recognisable symptoms associated with domestic battering. One of the psychologists pointed out that, while the symptoms of PTSD are generic in nature (for example, intrusive memories) the content of these symptoms will indicate the nature of the trauma that caused them (for example, the intrusive memories will be related to the traumatic event).[34]

24 In our view, rather than getting caught up in the debate about what exactly BWS is and whether it is a diagnosable condition, effort should be directed at ensuring that evidence about the realities of battering relationships is presented in a way most likely to assist fact-finders.

The content of expert evidence on battered woman syndrome

25 While the debate concerning BWS has focused on Walker’s two theories and the psychological effects of battering, evidence given in court under the rubric of BWS has covered a wide range of information concerning battered women and battering relationships. The United States Department of Justice in its report on The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials states:[35]

The scientific and clinical literature offers a large body of information relevant to various issues considered by the fact-finder in criminal cases involving battered women, and the term “battered woman syndrome” has been used to signal a shorthand reference to that body of knowledge. However, the use of the term “battered woman syndrome”, in the context of the knowledge developed within the past 20 years, is imprecise and therefore misleading. The knowledge pertaining to battering and its effects does not rest on a singular construct, as the term “battered woman syndrome” implies. Thus, the term “battered woman syndrome” is not adequate to refer to the scientific and clinical knowledge concerning battering and its effects germane to criminal cases involving battered women.

26 Judges and commentators have also made this point.[36] For example, in Ruka v Department of Social Welfare, Thomas J said:[37]

[I]t is probably preferable ... to avoid reference to [BWS] and to simply speak of the battering relationship. There is a danger that in being too closely defined, the syndrome will come to be too rigidly applied by the Courts. Moreover, few aspects of any discipline remain static, and further research and experience may well lead to developments and changed or new perceptions in relation to the battering relationship and its effects on the mind and will of women in such relationships.

27 Currently, New Zealand courts admit expert evidence on what is referred to as BWS in relation to a number of defences. Such expert evidence covers a broad range of issues concerning the psychological, social and economic aspects of domestic violence. In our view this evidence should continue to be admissible. However, we would prefer to avoid using the term BWS and instead call it “expert evidence on domestic violence”.

28 Under the proposed Evidence Code, expert evidence is admissible where it is relevant and substantially helpful.[38] While relevant expert evidence about domestic violence will vary from case to case, depending on the facts, expert evidence that is likely to be relevant and substantially helpful may include the following:

• Evidence concerning the behaviour of battered women – for example, a tendency to keep the violence a secret and to remain in relationships, even when they are severely battered. This sort of evidence is likely to be counter-intuitive[39] and could be used to support credibility where there is no independent evidence of battering or of the severity of the battering.

• Research on the patterns of violence in battering relationships,[40] the social and economic⁴¹ factors that affect battered women, the psychological effects of battering and separation violence.[42] This may help to explain why the woman remained in the relationship or thought she had no alternative to using lethal force.

• Evidence concerning the battered defendants’ appraisal of the danger they are in. Intimate partners generally learn to read the subtle nuances of each other’s behaviour more clearly than outsiders, and battered spouses (like prisoners of war or hostages) have a great incentive to learn to read their abusers’ behaviour accurately.[43]

29 To ensure the relevance of the expert evidence, a factual foundation linking the expert evidence to the circumstances of the particular case would need to be established. Thus, there would have to be evidence before the fact-finder from which it could conclude that the alleged abuser had battered the defendant. There would also have to be evidence before the fact-finder from which it could conclude that the particular social, economic and psychological factors that were the subject of expert evidence were relevant to the particular defendant. For example, expert evidence on the economic factors that typically affect battered women would not be relevant if the defendant was financially independent.

30 Those qualified to give such expert evidence would differ, according to the nature of the evidence. Under the Evidence Code, evidence that does not concern psychological matters could be given by someone with expertise in the social issues surrounding domestic violence, rather than a psychologist or psychiatrist.