Explaining Without Pathologizing: Testimony on Battering and its Effects
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Description
In 1978, a coalition of social scientists, trial consultants, legal workers, and attorneys formed the Women's Self-Defense Law Project in order to help attorneys provide effective representation to women who had been forced to defend themselves against violent attacks. That was also the year that Dr. Lenore Walker first offered expert testimony in support of a battered woman's self-defense claim. In the intervening 25 years, many advocates, researchers, and lawyers—including the authors of this chapter—have joined the effort to demonstrate what these early practitioners seemed to understand so clearly: Like others who defend themselves against imminent harm, battered women who kill their abusers can, and in many circumstances should, argue self-defense. Instead of viewing battered women who kill as insane or otherwise incapacitated (as many attorneys and jurors had done in the past), these pioneers in the field argued that the battered women they represented had been reasonable and justified when they defended themselves against their abusers. In the late 1970s, expert testimony about what came to be known as “battered woman syndrome” (BWS) was introduced to help jurors understand more fully a battered woman's experiences, because this background information was necessary to their evaluation of her reasonableness and self-defense claim. Unfortunately, it did not take long for some scholars and practitioners to mischaracterize this BWS testimony as creating a new and novel defense. Such an interpretation was frequently based on the mistaken belief that testimony on behalf of battered women defendants focused on their pathology, incapacity, or lack of reason. Reverting to the stereotype of battered women as damaged human beings can be particularly problematic for women who kill their abusers, because reasonableness is central to their self-defense claims. The past quarter-century has witnessed the dogged persistence of these misconceptions about battered women who kill and their legal defenses. There are five categories of mistaken notions regarding battered women's legal defenses: 1. Battered women charged with homicide invoke a separate “battered woman's defense” or “battered woman syndrome defense.” 2. The basis of this so called special defense is either vigilantism or a version of the insanity defense. 3. The most important evidence in support of a woman's legal defense is expert testimony. 4. The expert testimony is only about “battered woman syndrome” (BWS). 5. BWS testimony is based on a victimization analysis that denies women's capacity, responsibility, and agency. These errors result from a disconnect between the reality of what goes on in the courtroom and the political and philosophical issues that arise in cases involving battered women who kill. The reality is straightforward: • There is no separate defense for battered women anywhere in the country. • Most battered women who are charged with homicide against abusive partners use the traditional law of self-defense. Self-defense is a justification. Under criminal law, it is the claim that the act was not a crime because it was necessitated by the circumstances. • Expert testimony is not introduced in every battered woman's case. When it is offered, it is generally one of many pieces of evidence introduced to support a woman's defense claim. • In the overwhelming majority of cases where expert testimony is used, this testimony addresses a range of social and psycho logical issues related to the reasonableness of a defendant's use of force to protect herself. It does not focus on the woman's incapacity or lack of reason. We begin this chapter with a review of developments in social science and in the law over the past 25 years. We turn next to the current use of social science testimony in battered women's homicide trials. We conclude with a discussion of the central question: How can we explain the impact of intimate violence without pathologizing battered women and denying their reason and capacity?
Source Publication
Current Controversies on Family Violence
Source Editors/Authors
Donileen R. Loseke, Richard J. Gelles, Mary M. Cavanaugh
Publication Date
2005
Edition
2
Recommended Citation
Osthoff, Sue and Maguigan, Holly, "Explaining Without Pathologizing: Testimony on Battering and its Effects" (2005). Faculty Chapters. 1295.
https://gretchen.law.nyu.edu/fac-chapt/1295
