Reformulating the Use of Battered Woman Syndrome Testimonies in Canadian Law

Abstract

This article examines the use of battered woman syndrome (BWS) expert testimonies in Canadian case law, regarding cases involving murder or attempted murder of abusive partners by women in violent intimate relationships. The purpose of this article is to contribute to literature about the use of BWS evidence in Canadian jurisprudence with connections to social work. The author provides a historical overview of the use of BWS testimonies in Canada and presents case examples. The article explores the benefits of BWS testimonies, its limitations, recommendations for reformulating its use, and implications for social work practice.

This article examines the use of battered woman syndrome (BWS) expert testimonies in Canadian case law, regarding cases involving murder or attempted murder of abusive partners by women in violent intimate relationships. The term BWS was first officially used by Lenore Walker in 1979 to explain the pattern of violence in abusive relationships and the psychological impact that it has on a woman (Schuller, Wells, Rzepa, & Klippenstine, 2004). Walker’s description of BWS included the cycle theory of violence (tension building, acute battering, and reconciliation) and the theory of learned helplessness (Schuller et al., 2004). BWS evidence defends a woman’s mental state to explain why she felt herself to be in danger at the time of the murder or attempted murder of an abusive partner and why she felt that there were no other options to avoid this danger (Schuller et al., 2004). Another function of BWS testimonies is to rid jurors’ and judges’ misconceptions about women in abusive relationships, by providing a framework to understand such complex circumstances (Schuller & Hastings, 1996). Although the use of BWS testimony was a significant step in the legal and social recognition of the realities that women who experience intimate partner violence (IPV) face, as well as revealing the gendered biases in Canadian law, there are limitations and controversies in the use of BWS testimonies (Sheehy, 2014). The purpose of this article is to contribute to literature about the use of BWS evidence in Canadian jurisprudence with connections to social work. The author provides a historical overview of the use of BWS testimonies in Canada and presents case examples. The article explores the benefits of BWS testimonies, its limitations, recommendations for reformulating its use, and implications for social work practice.

Historical Overview

BWS was originally presented by Lenore Walker in 1979 to describe the pattern of violence in abusive relationships and the psychological impact that it has on a woman (Schuller et al., 2004). In Canada, the first person to be acquitted using BWS evidence through expert testimony as part of a self-defense claim to killing her abusive partner was Angelique Lyn Lavallee in the 1990 Supreme Court of Canada (SCC) case R. v. Lavallee (Tang, 2003). ¹ Expert evidence in this case served the court by providing direct testimony about the impact that enduring years of abuse by her batterer had on Lavallee. In addition to providing an explanation about an abused woman’s actions in her specific case, expert evidence also offers facts about IPV in general through their expertise in this area (Ferraro & Busch-Armendariz, 2009). According to Terrance, Plumm, and Rhyner (2012),

In cases involving battered women who kill their abusive partners and claim self-defence, expert testimony may be introduced in order to help the triers of fact understand the experiences and context within which some battered women resort to lethal force. Traditionally, expert testimony frames the experiences of battered women using the battered woman syndrome. (p. 921)

The case of Lavallee demonstrates a significant legal hurdle to the admissibility of expert evidence, which shows the magnitude of the ruling. In regard to this case, Hamilton and Sheehy (2004) stated, “Landmark cases such as R. v. Lavallee in Canada now permit women to use expert evidence regarding the effects of male battering to inform self-defence such that, at least according to formal legal interpretation, women can invoke pre-emptive violence” (p. 105). However, there have been limited cases of women acquitted on the basis of BWS evidence in Canada since Lavallee. Canada’s Department of Justice produced a report in 2003 which included a case law review that dealt with sentencing for manslaughter in cases involving domestic violence since 1991. According to this review,

Of the 19 cases involving female offenders that were reviewed in this sample, 15 considered evidence of past abuse by the victim as a mitigating factor. Nine of the 15 considered evidence of BWS as defined in Lavallee. In two other cases, the offender’s experience of abuse by previous partners or family members was considered a mitigating factor in sentencing. (Department of Justice, 2003)

This review also showed that despite the precedent allowing the use of BWS testimonies established by R. v. Lavallee, there have been few acquittals in these cases. An impact of Lavallee was to increase plea bargains for manslaughter and compassionate sentences for women in abusive relationships who reacted with self-defensive acts, when they may have been able to achieve acquittal with a self-defense claim if they had gone to trial (Sheehy, 2014). This results in the legal system seeing the woman’s act as “excused,” rather than “justified,” which leads to other issues that need to be addressed in response to such cases (Sheehy, 2014).

To illustrate what has happened since Lavallee, other cases involving BWS evidence will be presented below, which include R. v. Malott (1998) and R. v. Ryan (2011, 2013). These cases were chosen to demonstrate both positive changes and problematic issues raised that lead to the need to reformulate the ways in which expert testimonies are used to better represent and support women in these situations.

Case Examples

Below are significant cases in Canada in which BWS testimonies were used. They include R. v. Lavallee (1990), R. v. Malott (1998), and R. v. Ryan (2011, 2013). R. v. Ryan is separated into two sections to examine the use of BWS evidence in the Nova Scotia Court of Appeal (in 2011) and the different verdict at the level of the SCC (in 2013). These are presented to discuss the use of BWS testimonies in cases of self-defensive acts by women in abusive relationships. The terms self-defensive acts and defensive violence (Miller, 2005; Wesley, 2006) are used to include cases in which self-defense (Lavallee and Malott) and duress (Ryan) were raised.

R. v. Lavallee (1990)

In 1986, Angelique Lyn Lavallee killed her common-law husband, Kevin Rust, in Winnipeg, Manitoba, Canada (R. v. Lavallee, 1990). She admitted to shooting him in the back of the head as he was leaving her bedroom to return to a party going on in their house, although she stated that she was aiming to shoot over his head to scare him (R. v. Lavallee, 1990). Lavallee relied on the form of self-defense found in Section 34(2) of the Criminal Code of Canada (R. v. Lavallee, 1990). Section 34(2) contained two requirements for those claiming self-defense: (1) accused persons must have acted under a reasonable apprehension of suffering death or grievous bodily harm at the hands of their assailant and (2) they must believe, on reasonable grounds, that they cannot otherwise preserve themselves from death or grievous bodily harm (Criminal Code of Canada, 1985). These conditions led to two challenges in viewing Lavallee’s actions as self-defense. First, Section 34(2) did not cover violence used by people in anticipation of an assault. In Lavallee’s case, it could be viewed by some that she had acted before the threat to her was imminent. Second, it was argued that Lavallee did not meet the requirement that she believed, on reasonable grounds, that there was no way other than to use violence to avoid danger. At the trial, a psychiatrist, Dr. Fred Shane, was called by defense counsel as an expert witness (R. v. Lavallee, 1990). The purpose of Dr. Shane’s evidence was to overcome the problems with Lavallee’s self-defense claim by providing the jury with information about the effects of prolonged abuse on women (Shaffer, 1997). Dr. Shane provided information on BWS, including the cycle of violence (where many women can predict when the next violent episode will occur), and the experience of feeling trapped and unable to leave the relationship (“learned helplessness”) (R. v. Lavallee, 1990). Dr. Shane stated that he believed Lavallee was a battered woman who had been “terrorized by Rust to the point of feeling trapped, vulnerable, worthless, and unable to escape the relationship” (Shaffer, 1997, p. 4). The intent of his testimony was to demonstrate that Lavallee was able to sense that a fatal attack was imminent and that she had perceived that her only way to protect herself was to take Rust’s life (Shaffer, 1997). Lavallee was acquitted at trial, but it was overturned by the Manitoba Court of Appeal on the grounds that Dr. Shane’s testimony should not have been admitted (R. v. Lavallee, 1990). Doubts were raised as to whether Lavallee’s actions fell under self-defense. However, the SCC restored Lavallee’s acquittal, asserting that the trial judge had correctly admitted Dr. Shane’s evidence (R. v. Lavallee, 1990). This was a landmark decision, as it was the first time that a Canadian court granted a person the ability to rely on BWS evidence as part of a self-defense claim to killing her abuser through the admission of expert testimony (Tang, 2003). Dr. Shane’s testimony addressed the limitations in a gender-biased perception of “reasonableness,” as it showed that Lavalee’s actions in killing her abuser was reasonable to her and would be reasonable to a woman in her situation. This was a major aspect of this legal ruling. Additionally, it “put to rest the common law ‘imminence’ requirement…Women did not have to wait for the ‘uplifted knife’ to act in self-defence” (Sheehy, 2014, p. 7).

R. v. Malott (1998)

Eight years after R. v. Lavallee, the SCC reviewed the status of BWS testimony in the case of R. v. Malott (1998). Margaret Ann Malott killed her common-law spouse, and she was charged with first-degree murder (R. v. Malott, 1998). Expert evidence was introduced to illustrate that Malott suffered from BWS and acted in self-defense (R. v. Malott, 1998). The jury found her guilty of second-degree murder, and they recommended that because of the severity of BWS, she should receive the minimum sentence. Although the BWS testimony had provided the jury with evidence that may have influenced their decision for a lesser charge and their recommendation for the minimum sentence, Malott was not acquitted (Sheehy, 2014). Malott appealed to the Ontario Court of Appeal, and then to the SCC, which dismissed the appeal and Malott was convicted, facing life imprisonment. After this ruling, Justice Claire L’Heureux-Dube took an opportunity to clarify her stand on the issue of BWS (R. v. Malott, 1998). She established the need for an expansive view of what types of women get to have their history of abuse taken into account, saying, “It is possible that those women who are unable to fit themselves within the stereotype of a victimized, passive, helpless, dependent, battered woman will not have their claims to self-defence fairly decided” (R. v. Malott, 1998, para. 40). Justice L’Heureux-Dube also brought up the problems around the legal test of reasonableness, suggesting that, “the ‘reasonable woman’ must not be forgotten in the analysis and deserves to be as much a part of the objective standard of the reasonable person as does the ‘reasonable man’” (R. v. Malott, 1998, para. 40). Justice L’Heureux-Dube “supported the court system move beyond the narrow definition of battered woman syndrome…[and] that all legal inquiry should focus on the reasonableness of the actions of the battered woman within her personal experience and the relationship of abuse between her and her partner” (Tang, 2003, p. 623).

Justice L’Heureux-Dube’s statements are consistent with the writings of several feminist legal professionals and academics. For example, Hemphill (1998) espoused the need to adopt a “reasonable woman” standard for evaluating self-defense. In addition, Hancock (1996) discussed the importance and relevance of social factors in cases such as R. v. Malott, and how they are often not asked for by courts to assess the reasonableness of abused women’s actions of self-defense. However, despite these issues with the legal system that were raised, “None of this was any help to Margaret…She was left with a life sentence of imprisonment and the weight of her prolonged traumatic experience” (Sheehy, 2014, p. 275). The SCC missed the opportunity in R. v. Malott to progress in justifying battered women’s acts of defensive violence given their unique and complex situations. Instead, the top court perpetuated the gender-biased nature of the law.

R. v. Ryan (2011)

On March 29, 2011, the Nova Scotia Court of Appeal upheld the acquittal of Nicole Doucet Ryan, who had negotiated with an undercover police officer to kill her abusive husband, Michael Ryan (R. v. Ryan, 2011). This was an important legal victory in Canada, as the ruling extended the boundaries of self-defensive acts by using BWS testimony in a way that had never been recognized in Canadian jurisprudence. The lower court took a more expansive view of the defense of duress in this case, making it available to an accused when her conduct was morally involuntary. The court’s judgment built on the 1990 ruling, R. v. Lavallee.

After trying to hire a “hit man” to kill her husband, who turned out to be an undercover Royal Canadian Mounted Police officer, Doucet (who now uses her original last name) was charged with the crime of counseling to commit murder (R. v. Ryan, 2011). She used the defense of duress, defined as pressure through violence or threat of violence exerted upon a person to coerce that person to perform an act that they would otherwise not perform (Westen & Mangiafico, 2003). Doucet’s lawyer argued that due to the 15 years of ongoing abuse by her husband, and the fact that the police and other authorities would not help her or her daughter, she acted under duress (R. v. Ryan, 2011). Doucet stated that she had lived in constant fear due to the physical, psychological, emotional, and sexual abuse inflicted by her husband (R. v. Ryan, 2011). Her lawyer reported that “Mr. Ryan often told her that he would kill her and her daughter if she ever tried to leave him, and that he would ‘burn the fucking house down’ while she and her daughter were inside” (R. v. Ryan, 2013, para. 7). Doucet contacted the police at least 9 times and Victim Services at least 11 times, but she did not receive assistance (R. v. Ryan, 2011). Both the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal accepted the defense of duress and Doucet was acquitted (R. v. Ryan, 2011). However, the Crown appealed her acquittal to the SCC. ²

R. v. Ryan (2013)

R. v. Ryan was heard by the SCC on June 14, 2012, and judgment was rendered on January 18, 2013 (R. v. Ryan, 2013). The Court held that the defense of duress did not apply (R. v. Ryan, 2013). The top court refused to expand the restrictive doctrine of the defense of duress. The SCC decided that in their opinion, the Court of Appeal had “erred in law” in determining that duress was a legally available defense (R. v. Ryan, 2013). The SCC stated that duress is only available in circumstances when the accused is directly threatened for the purpose of compelling the commission of a specific offense (R. v. Ryan, 2013). Their conclusion was that the appeal of the Crown should be allowed (R. v. Ryan, 2013). However, the top court ordered a stay of proceedings, which meant that Doucet did not have to undergo further prosecution, because “in all of the circumstances, it would not be fair to subject Ms. Ryan to another trial” (R. v. Ryan, 2013, SCC 3, para. 35). The rendered judgment in the case of R. v. Ryan (2013) was a step backward, as the verdict in R. v. Ryan (2011) had initially been viewed by many as a landmark case as it had the expanded use of BWS testimonies, to include duress as a defense, demonstrating increased recognition by the courts regarding the complexities of women’s experiences with IPV. As the Women’s Legal Education and Action Fund posits (2014),

While the stay ends the prosecution of one woman, unfortunately the Court’s analysis of criminal defenses does not hold out hope for the evolution of defenses generally. The Court focuses on a doctrinal analysis and some clarification of defenses, but does not address concerns that they fail to capture the diversity of human experiences to which they need to be applied. (p. 1)

This case illustrates the importance of addressing the limitations of BWS testimonies as they are currently used and the need to redefine and expand the use of BWS evidence in cases of defensive violence. Although this case was not a step backward for the admissibility of BWS evidence, it did not extend or disband the traditional duress defense to represent the realities of battered women who believe that the situation compels them to preemptively strike. Nor was the use of self-defense expansive enough to include situations where women in abusive relationships hire someone to kill their batterer, which led Doucet’s lawyer to attempt the defense of duress instead (Crosbie, 2014). It may seem to be too much of a stress of legal rules to extend the traditional duress defense for those who adhere to the restrictive doctrinal elements of the defense. However, it is important to remember that prior to R. v. Lavallee, extending the claim of self-defense to situations that did not represent the traditional use of this defense in the context of “imminent danger” may have seemed to some to be too much of a stress also. This is a part of what made Lavallee a landmark case. R. v. Ryan was a case where the defense of duress could have been expanded to reflect battered women’s realities. However, with the decision that was made by the SCC in this case, it furthers the argument that the use of BWS evidence in its current form needs to be reformulated as it is restrictive. Had a reformulated version of BWS evidence been used in court, would Doucet’s lawyer have believed he could argue the case of self-defense? If this had been the case, the issue of the defense of duress would not have been the issue.

Benefits of BWS Testimonies

An important function of BWS evidence is to rid misconceptions about women in abusive relationships by providing a framework to understand their unique situations and perspectives (Schuller & Hastings, 1996). BWS expert testimonies can educate courts about the prevalence of violence against women, the dynamics and effects of abusive relationships, and provide reasons why women do not/cannot leave their abusive partners (Dutton, 1993; Grant, 1991; White-Mair, 2000). The use of BWS evidence can educate judges and jurors about the justice system’s failure to fully understand the experiences of women in abusive relationships (White-Mair, 2000). In the context of Canadian courts, “medical evidence that resonates with the common life experience of male judges and juries are more readily taken up as the explanation of why certain women behaved as they did” (White-Mair, 2000, p. 437). As such, the use of BWS testimonies can help courts to better understand that women’s experiences regarding self-defensive acts are different than men’s, and that these experiences must equally inform legal concepts of the “objective” standard of the “reasonable person” (Tang, 2003).

Grant (1991) provides two reasons as to why expert evidence can be beneficial in BWS cases. First, admitting expert evidence on the dynamics of abusive relationships and on the characteristics of abused women can provide the jury with a framework in which to meaningfully assess whether a woman’s response in killing her abuser was reasonable under Section 34(2) of the Criminal Code of Canada (Grant, 1991). Second, it can make it easier for the jury to comprehend why women in abusive relationships do not leave their partners (Grant, 1991). Dutton (1993) also discusses the importance of the development of BWS and its contribution to criminal cases in which expert witness testimony helped to increase recognition of how women in violent relationships may “reasonably” perceive themselves to be in imminent danger in situations when this may not be apparent to the courts without such evidence. Dutton (1993) states that the introduction of information concerning abused women’s experiences has provided a more informed understanding of the relevance of IPV in some legal cases.

Limitations of BWS Testimonies

With BWS evidence, the ruling in R. v. Lavallee was important for several reasons. In this case, the Court accepted that women’s experiences in regard to self-defense may be different from men’s, and that women’s experiences must equally inform the objective standard of the reasonable person (Tang, 2003). Furthermore, the decision acknowledged the prevalence of violence against women in Canadian society and the justice system’s failure to understand the experiences of women in abusive relationships (White-Mair, 2000). However, despite the significance of R. v. Lavallee and Justice L’Heureux-Dube’s statements in response to the case of R. v. Malott (1998), problems still exist with the current use of BWS testimonies, the gendered biases in legal doctrine, and the common misperceptions and stereotypes that still inform legal decisions pertaining to defensive violence by women in abusive relationships (Schuller et al., 2004; Shaffer, 1997; Tang, 2003; White-Mair, 2000).

Shaffer (1997) conducted a study based on 35 cases in Canada, which indicated that R. v. Lavallee had not led to a dramatic increase in successful self-defense claims by women. Moreover, Dutton (1993) claims “battered women syndrome requires redefinition for two major reasons: (1) testimony concerning the experiences of battered women refers to more than their psychological reactions to violence, and (2) battered women’s diverse psychological realties are not limited to one particular ‘profile’” (pp. 1194–1195). Dutton explains that by creating changes in these two areas, there will be an increased likelihood that further contributions can be made to acknowledging the complex realities that women face in abusive relationships, and how this can lead to positive changes for abused women in the legal system.

Another limitation of BWS is that it relies on a syndrome to explain women’s behavior and it pathologizes women’s responses to, and experiences of, repeated abuse. BWS displays abused women as dysfunctional rather than rational and reasonable (Shaffer, 1997). Shaffer (1997) writes, “According to Walker, helplessness impaired women’s cognitive state, making them unable to perceive their ‘real’ options and limiting their problem solving abilities” (p. 10). For example, Dr. Shane’s testimony undermined the hypothesis of self-defense that called for Lavallee’s actions to be seen as reasonable (White-Mair, 2000). He had presented to the jury the concept of provocation that

reinforced a common sense interpretation of reasonable action, when the very point of considering BWS was to provide an alternative set of rationalities and expand the jury’s understanding of what constituted reasonableness above and beyond our common sense reading of the subject. (White-Mair, 2000, p. 433)

Schuller and Hastings (1996) point to the inconsistency between the notion of learned helplessness and the final action when a woman in an abusive relationship kills, or tries to kill, her abuser in an act to preserve her safety. According to Hemphill (1998),

Dr. [Lenore] Walker’s research and advocacy [on Battered Woman Syndrome] have brought attention to the subject of battering, and that is commendable. However, the courts’ acceptance of the Battered Woman Syndrome is not without its inconsistencies and drawbacks. First, the focus on learned helplessness may undermine the battered woman’s claim that her final act of self-defence was reasonable. If the defendant were so helpless, why did she kill? Isn’t killing the ultimate act of aggression? If so, the theory that all battered women become helpless over time is seemingly flawed. Second, the focus on the Battered Woman Syndrome and its characteristic “victims” may deprive some battered women of the opportunity to assert a claim of self-defence because they do not fit the stereotypical submissive model. (p. 4)

Women should be “treated as rational actors who understand both their victimization and its consequences and make a rational decision as to the best course of action to take” (Hemphill, 1998, p. 5). The more juries focus on a “syndrome” that suggests passivity and a loss of control, they may be less likely to accept the claim that an abused woman acted rationally in self-defense (Schneider, 2008). As a result, it may become more difficult for women’s self-defensive claims based on BWS to succeed (Shaffer, 1997).

There are also other reasons besides learned helplessness as to why women remain in abusive relationships, including economic, social, and emotional barriers. BWS does not acknowledge that apart from the psychological factors, there are often many external constraints that limit women’s options and ability to safely leave their abusive partners, such as difficulties in locating safe and affordable housing, financial constraints, fear of losing custody of children, concerns about children’s safety, concerns about the safety of other family members and friends, and the worries of defying cultural and/or religious expectations and values (Shaffer, 1997). Recognizing such factors is crucial for a complete understanding of the reasons why women remain in abusive relationships, which the use of BWS testimony in court alone does not explain. It is also important to note the fact that leaving an abusive partner is extremely dangerous for a woman experiencing IPV (Hemphill, 1998; Sheehy, 2014). Women have a heightened chance of being killed by their abuser when trying to leave or when they have left the abuser (Hemphill, 1998). According to Crosbie (2014), “The danger women are in when they leave their abusers should not be overlooked or minimized” (p. 479). Many abused women who are eventually killed by their abuser are no longer living with them at the time of their death (Terrance, Plumm, & Rhyner, 2012). This is another vital factor to present to courts, which testimonies focusing on a syndrome will not sufficiently explain.

BWS language creates a stereotyped image of pathology. A woman characterized as suffering from BWS is typically viewed as flawed, damaged, disordered, or abnormal in some way (Shaffer, 1997). Although it is true that many women in violent relationships suffer negative effects of abuse, syndrome language places the emphasis on pathology, not on the whole picture that also includes the woman’s strengths and efforts (Shaffer, 1997). “By requiring women to exhibit a specific set of clinical traits, battered woman’s syndrome threatened to establish a stereotype of the ‘authentic’ battered woman…” (Shaffer, 1997, p. 9). Although BWS evidence can be beneficial in some cases, it may only help a small group of women (Schneider, 2008; Stark, 1995). Because BWS places weight on helplessness, jurors and judges may regard women who act aggressively, who are seen as having problematic substance use, or who show autonomy in other aspects of their lives as not helpless enough to be considered to suffer from BWS (Schneider, 2008; Shaffer, 1997; Stark, 1995).

For some women, the term “battered” can denote a gap between strength and the image of a battered woman, the loss of a certain level of denial of a painful experience, and a concern of others’ perceptions and derogatory stereotypes of battered women. Ferraro and Busch-Armendariz (2009) also comment that although “the use of expert testimony on IPV is critical to developing legal responses that are responsive to the experience of women…[It] can be fraught with contradictions and dilemmas” (p. 6), including the limitations and potentially harmful impact of using BWS language, “which is in conflict with most women’s experiences” (p. 6).

Acknowledging the deficits of the use of BWS testimony is not to say that there are no benefits that stem from it. Rather, understanding the limits of BWS evidence can lead to redefining, expanding, and improving its use in Canadian law, as well as increasing societal awareness about the lived realities of women in abusive relationships.

Next Steps: Reformulating BWS Evidence

Several feminist scholars have suggested a more progressive use of the BWS testimony (Schneider, 2008; Schuller et al., 2004; Sheehy, 2014; Sheehy, Stubbs, & Tolmie, 1992). For example, it has been proposed that the term itself, “Battered Woman Syndrome,” should be dropped from the testimony (Sheehy et al., 1992). In addition to dropping the terminology, expert testimony should include more information about the woman’s circumstances and alternatives, rather than a focus on learned helplessness and the woman’s psychological state (Schuller et al., 2004). References should be made in expert testimony about abused women’s experiences rather than BWS (Dutton, 1993). There needs to be an increased focus on the social reality and context of the woman’s situation; for example, the abusive partner’s domination and control, lack of effective community alternatives, and the risks of leaving (Schneider, 2008; Sheehy et al., 1992).

Schuller and Hastings (1996) conducted a study that involved juror simulation using R. v. Lavallee as a model, with an abbreviated transcript of the case, “to determine whether variations in the ‘psychological’ focus of expert testimony might lead to differential decision processes” (p. 171). The research included three groups, two using different types of expert testimony and one control group with no expert testimony. The first form of testimony used traditional BWS evidence: “a psychological form of expert testimony, which included the term ‘battered woman syndrome,’ reference to PTSD and learned helplessness” (Schuller & Hastings, 1996, p. 171). The second form of expert testimony was:

[More] social/agency oriented…[It] attempted to capture only battered women’s circumstances and alternatives, rather than their psychological state. Thus, the term “battered woman syndrome” was dropped, as well as any reference to PTSD. Moreover, the theory of learned helplessness was omitted and replaced with information pertaining to the actions women may take and the obstacles they face when seeking help. (Schuller & Hastings, 1996, p. 171)

Findings from Schuller and Hasting’s (1996) research showed that exclusion of the term BWS and the psychological emphasis did not change the way in which the testimony was used, which may indicate that the more important aspects of the testimony for jurors is the discussion about the limited choices that women experiencing IPV have when trying to end the abuse.

Another study was conducted by Schuller, Wells, Rzepa, and Klippenstine (2004) to contrast the impact of BWS evidence with the social agency (SA) version of the testimony in circumstances where the imminence of the batterer’s threat was questioned. The results from this study illustrated that when participants were presented with the SA form of the testimony, the factor of the imminence of the threat had little impact on their judgments, in comparison to the use of BWS testimony, which was not beneficial in cases where the abused woman was not perceived to be in imminent danger (Schuller et al., 2004). Moreover, Schuller et al. (2004) found that compared to the SA form of the testimony, the use of BWS led mock jurors to view the woman as more psychologically unstable. When a SA testimony was used and the social context of an abused woman’s experiences and choices were presented, the interpretations of dysfunction were not present. Schuller et al.’s (2004) research demonstrates how BWS testimonies only benefit abused women whose circumstances and behaviors conform to the “narrow vision of how battered women should behave” (p. 135) and that the presence of BWS evidence was associated with the interpretations of psychological instability.

Studies such as the two mentioned above highlight that expert evidence on IPV and its impact on women can benefit from a transformation of its content. Adding Schuller and Hastings’ (1996) suggestion of SA testimonies to these cases would be an ideal step in effectively providing a jury and judge with the whole picture to better educate them about the realities of abused women’s experiences. Terrance et al. (2012) assert, “In most cases, a battered woman’s behavior is best characterized as reasonable within the context of her abuser’s behavior, and not the product of a mental health problem” (p. 948). With expert testimony that focuses on social context, such as SA evidence, the responses of a woman in an abusive relationship, such as staying in the abusive relationship, believing she had no other alternative than to kill her abuser, and using lethal force, are not diagnosed as a syndrome. This type of evidence can explain her actions as justified. Testimonies that focus on social context can also explain how there are inadequate formal sources of support, including current policies and lack of resources. Terrance et al. (2012) report,

Even where mandatory arrest policies exist, the police still must make probable cause determinations about whether violence has occurred. As a result, discretion may result in failure to arrest the abuser. Moreover, even if charges are laid, battered women still risk facing retaliatory violence in the event that the abuser returns. (p. 948)

Additionally, “in comparison to the large number of battered women who require such services, shelters remain scarce. Consequently, waiting list and time limits must often be enforced” (Terrance et al., 2012, pp. 948–949). Evidence that focuses on social context can include financial barriers to leaving, fear for the safety of children and other family members, and the fact that “women who have successfully left an abusive relationship may still face retaliation from their abusers” (Terrance et al., 2012, p. 949). SA testimony acknowledges the barriers and lack of options available to women in violent relationships. “SA testimony locates the explanation for battered women’s reactions within the political and social structure. In so doing, the blame is diverted from the individual” (Terrance et al., 2012, p. 950). Moreover, evidence that focuses on social context can emphasize gender inequity that results in, and is perpetuated by, interpersonal and systemic violence against women (Sheehy, 2014). Testimony based on the social contexts of women’s realities is “more consistent with the justification theory of self-defense than syndrome-based testimony. As such, this testimony may have implications for not only how the defendant is perceived, but her claim of self-defense as well” (Terrance et al., 2012, p. 950).

By reformulating how expert testimonies are utilized in court cases, there will be an increased chance that more women in violent relationships who murder, or attempt to murder, their abusive partners would benefit from such evidence. An SA testimony considers the social context, which includes external conditions. By addressing this, it is possible to reveal how these social contexts are shaped by social injustices, such as oppression, discrimination, and patriarchal structures. This is consistent with social work values, and it is important for social workers to understand the legal system’s responses to women in abusive relationships who commit self-defensive acts, to be better able to advocate for change and support clients who experience IPV.

Implications for Social Work Practice

The cases mentioned in this article, the legal implications of BWS testimonies, and the proposed reformulations of BWS evidence are relevant to social work practice. Social workers have a responsibility to link their interpersonal practice with community work, policy development, and social action (Ife, 2008). There is an expansive overlap between social work and law, which is why it is imperative that social workers are knowledgeable about issues such as BWS testimonies, and how it relates to clients’ experiences with the legal system. When social workers understand laws and policies that affect their clients and society, they are better able to provide effective support for clients on a micro-level and to advocate for change on a macro-level.

The contexts in which women respond to their abusive partners, through retaliation and self-defense, exist within an unjust society. Value two in the Canadian Association of Social Workers’ (CASW, 2005) core social work values and principles is the pursuit of social justice: “social workers oppose prejudice and discrimination against any person or group of persons, on any grounds, and specifically challenge views and actions that stereotype particular persons or groups” and “social workers advocate for equal treatment and protection under the law and challenge injustices, especially injustices that affect the vulnerable and disadvantaged” (p. 8). Ife (2008) claims that, “structures and discourses of patriarchy [need] to be addressed [for] a more inclusive view of human rights [to be] established” (p. 73). Thus, it is vital for social workers to understand how gendered biases in Canadian law impact women in abusive relationships, such as legal responses to self-defensive acts by women experiencing IPV.

Furthermore, the legal implications of BWS testimonies and the proposed reformulations of BWS evidence are relevant to social work because they deal with gender discrimination and the patriarchal underpinnings of Canadian law. The Canadian legal system is based on Western-centric and patriarchal concepts of “reasonable” and “rationale,” which does not reflect the lived experiences of all people, such as many women in abusive relationships (Tang, 2003). For a legal system to represent all people, including all genders, there needs to be a shift away from patriarchal-based law and “stigmatizing psychological assessments of traumatization” (Stark, 1995, p. 975). This is particularly important to feminist social work practice, which promotes social justice and human rights and “affirms the diversity and commonality among women. The range of women’s strengths, knowledge, and lived experience is acknowledged and highlighted” (Heinonen & Spearman, 2010, p. 276). Other important elements of feminist social work are empowerment, linking the personal to the political and transformative action (Heinonen & Spearman, 2010). Applying feminist social work principles helps to make “links between structural inequality, the systemic nature of women’s oppression in a particular relationship, and the harms associated with domination and resistance as it has been lived” (Stark, 1995, p. 975). Tang (2003) asserts, “Courts need to increase focus on the restrictions on battered women’s liberty and highlight a class of harms that extends beyond psychological or physical suffering to fundamental human rights” (p. 627). From a feminist social work perspective, recognizing and resisting legislative patriarchy and the impacts it has on women in abusive relationships is paramount.

Another reason why this topic is of relevance to social workers is related to the proposed shift from BWS evidence to testimony that highlights social contexts, such as SA testimony. Testimonies that address social contexts can include issues of gender inequality and the reasons why women are not able to leave their abusive relationships, which can result in self-defensive acts. Social work practice involves an understanding of systems, services, and resources. Social workers with expertise in working in the area of IPV have the capacity to provide expert testimonies with evidence based on social context. In addition to having specialized knowledge about systems, services, and resources, many social workers are trained in areas of mental health and child protection. This combination of knowledge and skills provides social workers with the opportunity to be advocates within the legal system for women facing charges for self-defensive acts.

Conclusion

This article examined the use of BWS evidence in Canadian jurisprudence, regarding cases involving murder or attempted murder of abusive partners by women in violent intimate relationships. The article provided a historical overview of the use of BWS testimonies in Canada and presented case examples. These cases included R. v. Lavallee (1990), R. v. Malott (1998), and R. v. Ryan (2011, 2013). Each of these cases holds significance in Canadian case law regarding BWS evidence, due to both positive aspects and problematic issues that were raised. The author explored the benefits of BWS testimonies, its limitations, and areas for improvement through a reformulation of the use of BWS in the legal system. Finally, the end of the article discussed implications for social work practice.

The cases of Lavallee, Malott, and Ryan (aka Doucet) each addressed different aspects of the use of BWS evidence in Canadian case law. Each of these cases contributes to a better understanding of the need to move forward by redefining and expanding the use of BWS evidence. It is crucial that researchers, legal professionals, policy makers, and social workers examine and understand the broader social context of women in abusive relationships. By reformulating BWS evidence through the inclusion of evidence based on social contexts, such as SA testimony, and terminating syndrome language, Canadian law can begin to address its gendered biases and respond to the current legal system’s role in accepting and perpetuating violence against women.