Defences for Battered Women Who Kill

Abstract

Recent articles on legal theory suggest that the concepts 'standpoint'1 and 'perspective'2 may be useful in probing certain issues. The idea is to recognize a pluralism of views, values, interests, and experiences which affect what we know about law. This involves questioning the Archimedian position, that of the detached neutral observer who sits on Olympus and decides what is right or fair in judgement, law-making or indeed academic writing. Instead an experiential approach to law is put forward. For example, it is argued that the perspectives and experiences of many groups have been ignored in the past, and that these must be considered in law making and application. Changes in many aspects of law, including legislation, case-law, practice, and procedure, might follow. This paper represents an effort to apply the experiential approach to an area of law where it seems particularly appropriate: the case of the victim of aggression who kills the assailant. If we are 'to shape the definitions to make law fit women's experience',3 the problem of the battered woman who kills provides a site of investigation. For it is often alleged that the current form of law ignores women's experiences and that the defences of self-defence and provocation which justify or partially excuse homicide are limited to male definitions and behavioural practices. What is being suggested is that long experience of being a victim of violence may lead a woman to kill, only to find that the law condemns her.4 There is a burgeoning literature on this topic in North American law journals,5 but discussion in Britain is just beginning.6 This paper focuses not only on the charge of lack of even-handedness which has been levelled against law, but also on the methodological problems involved in incorporating pluralism of experiences in law-making. Part I deals with the background material. Part II examines the traditional defences to charges of homicide. Part III reviews the North American literature, and in particular, the defence of 'battered woman syndrome' which has been used to present experiential material to juries. Part IV concludes with an examination of the problems involved in re-casting the law.

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