International Journal of Offender Therapy and Comparative Criminology http://ijo.sagepub.

com/

Battered Woman Syndrome Testimony in Canada: Its Development and Lingering Issues
Kwong-Leung Tang Int J Offender Ther Comp Criminol 2003 47: 618 DOI: 10.1177/0306624X03257519 The online version of this article can be found at: http://ijo.sagepub.com/content/47/6/618

Published by:
http://www.sagepublications.com

Additional services and information for International Journal of Offender Therapy and Comparative Criminology can be found at: Email Alerts: http://ijo.sagepub.com/cgi/alerts Subscriptions: http://ijo.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav Citations: http://ijo.sagepub.com/content/47/6/618.refs.html

>> Version of Record - Dec 1, 2003 What is This?

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

Battered Woman Syndrome Testimony in Canada: Its Development and Lingering Issues
Kwong-leung Tang
Abstract: This article examines the status of battered woman syndrome (BWS) testimony in Canadian courts and assesses the impact of the leading decision, Regina (R.) v. Lavallee. Acknowledging the test of reasonableness in criminal trials was constructed on a male model, the Supreme Court in Lavallee corrected the gendered interpretation of women in abusive relationships by admitting the BWS evidence. Feminist legal scholars questioned whether Lavallee had succeeded in dispelling the stereotypes around battered women. These concerns were partially addressed in R. v. Malott, but some tough issues remain: applying the reasonableness test to women of color and the narrow base of BWS evidence. Some directions are discussed: discarding BWS testimony, framing a redefined and expanded BWS testimony, introducing a new defense based on self-preservation, and adopting an alternative interpretative frame such as coercive control. The strengthening of BWS testimony would call for the judgesreferencing of latest empirical research on battered women. Keywords: battered women; coercive control; abusive relationships

Battered woman syndrome (BWS) testimony, emerging in the United States during the late 1970s and early 1980s, has been used to support defense strategies in criminal cases (Pena, 2001). In 1990 the Supreme Court of Canada in Regina (R.) v. Lavallee (1990) first granted Canadian women the ability to rely on BWS evidence as part of a self-defense claim to killing their abusers through the admission of expert testimony. Following this precedent-setting decision, Canadian courts have admitted this kind of expert testimony in trials of battered women (e.g., R. v. Petel, 1994, and R. v. Bear, 1999). The admission of BWS evidence in Canada is not unique. Similar development can be cited for Australia, Britain, and New Zealand (Seddon, 1993; Sheehy, Stubbs, & Tolmie, 1992). Several arguments could be advanced to explain the adoption of BWS evidence by courts in North America. Wilson (2001, p. 101) argued that this is a product of popular writings and social movements that draws judges attention to woman battering. A more sophisticated explanation comes from Rothenberg (2002), who claimed that BWS theory gains cultural authority and recognition because it has rhetorical force. Such testimony resonates with its audience by aligning itself with larger cultural themes found in the greater society. Specifically, White-Mair (2000) maintained that in the context of Canadian courts,
International Journal of Offender Therapy and Comparative Criminology, 47(6), 2003 618-629 DOI: 10.1177/0306624X03257519 2003 Sage Publications

618

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

Battered Woman Syndrome Testimony in Canada

619

medical evidence that resonates with the common life of experience of male judges and juries are more readily taken up as the explanation of why certain women behaved as they did (p. 437). Another plausible explanation has to do with the historical predisposition on the part of Canadian courts to accept psychiatric evidence because it carries the canon of science. By all indications, BWS testimony serves two important functions: It speaks to the mental state of the battered women (e.g., sense of fear and inability to leave their abusive spouses), and it dispels the misconceptions that jurors have about battered women, giving them a framework to understand their unique situation and perspective (Schuller & Hastings, 1996). As stereotypes of women are prevalent in the justice system (Tang, 1998, 2000, 2003), the ultimate goal of admitting this expert evidence is to assist the jury in trials of battered women to understand their action as a reasonable response. The judges in Lavallee set out to correct the gendered interpretation of women in abusive relationships by admitting the BWS evidence. There have been some misgivings among feminist legal scholars as to how far Lavallee had succeeded in dispelling the stereotypes and myths about battered women. These challenges were partially addressed in another Supreme Court decision, R. v. Malott (1998). This article examines the impact and limitations of the Court approach pertaining to the admissibility of the BWS evidence. Despite the Courts elucidation in Malott, we argue that some additional changes are necessary so that abused women could take full advantage of the BWS testimony. The strengthening of this form of testimony is predicated upon the review of more empirical research findings on woman battering.

LEGAL PRINCIPLES FROM LAVALLEE Typically, BWS is not a legal defense in itself in Canada but rather it is a psychiatric explanation of the mental state of an abused woman that can be relevant to understanding a battered womans state of mind. The discussion of BWS evidence in Lavallee draws somewhat heavily from the theories advanced by Lenore Walker (1979, 1992). As a special case of post-traumatic stress disorder, BWS rests on a combination of two theories, namely, the cycle of violence and learned helplessness. These theories attempt to describe a pattern of behavior that women who are abused by their partners frequently show. This syndrome has a cycle of behavior that consists of three stages: the tension-building stage, the acute-battering stage, and the contrition stage. There are some symptoms associated with the syndrome: low self-esteem, self-blame, anxiety, depression, fear, suspiciousness, and loss of belief in the possibility of change. These psychological traits prevent women from leaving their abusers. The dynamics of battering relationships revolve around a cycle of violence, the development of learned helplessness, and the victims inability to perceive neutrality and objectivity (Walker, 1992). Summarizing her theory, Walker (1979) argued that these women were

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

620

International Journal of Offender Therapy and Comparative Criminology

physically and psychologically abused by men and then kept in their place by a society that was indifferent to their plight (p. 15). Lavallee concerns a woman who shot her husband in the back during a violent incident. In the trial of Lavallee, a psychiatrist testified that she was terrorized to the point of feeling trapped, vulnerable, worthless, and unable to escape a violent relationship. The Supreme Court of Canada determined that BWS evidence was admissible to show that Lavallee was one who could not escape and saw no options for survival. It ruled that expert testimony would assist the jury in assessing the reasonableness of her belief that killing her batterer was the only way to save her own life. The woman was finally acquitted of second-degree murder on the basis of self-defense. Three legal principles can be gleaned from Lavallee. First, the Court accepted the need for expert evidence to dispel the myths and stereotypes inherent in the publics understanding of a battered womans experiences and of the reasonableness of her actions. Second, an imminent attack is not necessary for self-defense to succeed as a defense. Finally, the Court accepted that womens experiences in relation to self-defense may be different from that of men and that the perspectives of women must equally inform the objective standard of the reasonable person. Madam Justice Wilson, writing the majority opinion in Lavallee, underlined the importance of expert evidence in enhancing the understanding of battered women:
Expert evidence on the psychological effect of battering on wives and common law partners must, it seems to me, be both relevant and necessary in the context of the present case. . . . The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? . . . Such is the reaction of the average person confronted with the so-called battered wife syndrome. We need help to understand it and help is available from trained professionals. (p. 112)

To Madam Justice Wilson, expert evidence on the dynamics of abusive relationships and on the characteristics of battered women would perform two complementary functions. First, BWS evidence can provide a framework in which the jury can meaningfully assess whether the womans response in killing her batterer was reasonable under Section 34(2) of the Canadian Criminal Code. Pursuant to Section 34(2) of the Criminal Code, there are three elements of self-defense where the victim has died: (1) the existence of an unlawful assault, (2) a reasonable apprehension of a risk of death or grievous bodily harm, and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary. On the first element, an honest but reasonable mistake as to the existence of an assault is permitted where a woman relies upon self-defense. To the extent that expert evidence respecting BWS may assist a jury in assessing the reasonableness of a womans perceptions, it is relevant to the issue of unlawful assault.

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

Battered Woman Syndrome Testimony in Canada

621

BWS evidence serves a second function: It can make it comprehensible to the jury why women who live in violent relationships simply do not leave their spouses. This is important to dispel common problematic images concerning battered women that may be held by the legal personnel and public. Hence in Lavallee, Madame Justice Wilson took the lead in incorporating womens experience into the doctrinal development of self-defense (Grant, 1991).

THE IMPACT OF LAVALLEE BWS testimony has received support from some lawyers and feminist legal analysts in Canada. This is due in part to the fact that woman battering is a common phenomenon in Canada. The authoritative Violence Against Women Survey by Statistics Canada (1993) revealed that 25% of Canadian women have experienced physical or sexual violence at the hands of a marital or common-law partner, and one half of all Canadian women have experienced at least one incident of violence since the age of 16. The ruling in Lavallee is important in several ways. First, it transformed the law of self-defense in Canada by recognizing the important role of the BWS evidence (Trotter, 2001). Furthermore, Lavallee prompted the national movement initiated by the Canadian Association of Elizabeth Fry Societies (CAEFS) to successfully ask for an en bloc review of convicted women to see if they could rely on this new defense (Sheehy, 2000). Third, the decision acknowledged the prevalence of violence against women in Canadian society and the justice systems failure to appreciate the experiences of women in abusive relationship (White-Mair, 2000). Finally, this decision first acknowledged that the principle of reasonableness was constructed on a male model (Martinson, 1991). Invariably, all legal feminist analysts agreed that the use of expert evidence in Lavallee is a positive step to assist women in abusive relationships. There are, however, several criticisms leveled at this decision (Boyle, 1991; Grant, 1991; Hemphill, 1998; White-Mair, 2000). Some critics pointed out that the en bloc review carried out by the federal government was disappointing, because no convicted woman was finally acquitted (Trotter, 2001). Importantly, BWS testimony has sparked controversy in Canada legal circles over its underlying views of women, who are seen as weak, defenseless, and helpless. There are many battered women who do not fit the profile of BWS; hence, the intent to dispel stereotypes about battered women is not realized (Shaffer, 1997). Worse, the stereotypical characteristics may deprive some severely battered women of the right to self-defense because they do not fit into the passive, submissive, helpless, and dependent mode. Thus, in the end, BWS evidence fails to protect all battered women. Like their counterparts in the United States, legal researchers are highly critical of the use of syndrome. Some see BWS as medicalizing the issue of domestic violence. Thus, Hancock (1996) observed that The word syndrome relegates

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

622

International Journal of Offender Therapy and Comparative Criminology

severe and repeated domestic violence and assault, and the complicated net of circumstances surrounding it, to an individualistic psychological level of illness, loss of self-control, and irrationality (p. 437). Not surprisingly, some critics suggest that the term BWS should be abandoned or radically revised. Other critics maintain that BWS testimony is displaced, focusing mostly on womens responses to violence rather than the context of violence in the relationship. Some legal feminist critiques on BWS suggested that women remained in abusive relationships not only for psychological reasons but as well for numerous material reasons, such as financial insecurity, possibility of losing child custody, religious or personal values, lack of alternatives, and a lack of any guarantee that violence would cease simply because they left. The CAEFS (1999) argued that police, crown attorneys, and judges have focused upon the womens failure to resolve their problems nonviolently, rather than locating the problem with the violent men and the inadequate response of the system in protecting women and children. Likewise, Martinson (1991) urged the Court to review the social reality faced by the battered women. Finally, some experts argues that BWS testimony carries a paradox that might cast a negative light on battered women. Scheppele (1992) stated:
[Expert testimony] comes at a price. Such testimony is effective with jurors because it gives them an explanation for a victims conduct at the time in question by saying she is suffering from a form of mental illness. . . . But this sort of transformation from a credible first story to an even more credible revised story is very hard to do without an expert. The expert allows a womans revised story to be believed, but at the cost of making her out to be a woman who could not know her own mind. (p. 161)

CLARIFICATION ON BWS Despite these criticisms, BWS was applied by Canadian courts in other cases after Lavallee. In R. v. Petel (1994), for instance, the Supreme Court confirmed its decision in Lavallee that where self-defense of the accused in an abusive relationship is raised, the experience and situation of the accused woman may be considered. Four years later the Supreme Court reviewed the status of BWS testimony in the case of R. v. Malott (1998), in which the woman killed her common-law husband and raised the issue of self-defense. Expert evidence was introduced to show that she suffered from BWS. The jury found her guilty of second-degree murder in the death of the deceased, but it recommended that because of the severity of the BWS, the woman should receive the minimum sentence. Although the Court was unanimous in dismissing Malotts appeal, two judges took the opportunity to clarify a few issues pertaining to BWS evidence. Addressing a few issues raised by feminist critics against the BWS, Justice Claire LHeureux-Dube, in obiter, took this opportunity to clarify her stand on these issues. First, she argued for an expansive view of what types of women

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

Battered Woman Syndrome Testimony in Canada

623

deserve to have their history of abuse taken into account, stating, 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-defense fairly decided (Paragraph 40). Essentially, she supported the court system move beyond a narrow definition of BWS, but she did not elaborate on who should be covered by BWS. On the legal test of reasonableness, Justice LHeureux-Dube had this suggestion: The reasonable womanmust 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 (Paragraph 40). In her view, Justice LHeureux-Dube urged 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. Legal professionals ought to look at her shared experience as a woman with other women within the context of a society. For some time, scholars such as Hemphill (1998) have called for the adoption of a reasonable woman standard for evaluating self-defense. Essentially, this amounts to the use of a subjective standard of evaluation for the reasonableness of the battered womans actions. The suggestion from Justice LHeureux-Dube took into consideration such a changed approach. Justice LHeureux-Dube further emphasized the importance of an individualized approach in appreciating womens unique experience. She expanded on those factors that were important for jurys consideration:
a womans need to protect her children from abuse, a fear of losing custody of her children, pressures to keep the family together, weaknesses of social and financial support for battered women, and no guarantee that the violence would cease simply because she left. (Paragraph 42)

This elucidation from her was timely and would get the support of legal experts. For instance, Hancock (1999) commented that social factors are often not asked for by the courts to assess the reasonableness of battered womens claim that lethal self-help was necessary in her circumstances. Importantly, Justice LHeureux-Dube saw the test of reasonableness as being able to overcome stereotypes of battered women: Finally, all of this should be presented in such a way as to focus on the reasonableness of the womans actions, without relying on old or new stereotypes about battered women (Paragraph 43). In light of this, Justice LHeureux-Dube suggested the following judges instructions to the jury:
A judge and jury should be made to appreciate that a battered womans experiences are both individualized, based on her own history and relationships, as well as shared with other women, within the context of a society and a legal system which has historically undervalued womens experiences. A judge and jury should be told that a battered womans experiences are generally outside the common understanding of the average judge and juror, and that they should seek to understand the evi-

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

624

International Journal of Offender Therapy and Comparative Criminology

dence being presented to them in order to overcome the myths and stereotypes which we all share. (Paragraph 43)

It has to be noted that the issues regarding the availability of BWS evidence are complex, and the common misperceptions and stereotypes that inform peoples thinking about male violence against women can only be countered if they are addressed clearly in the judges charge to the jury. Originally, counsel for Malott submitted that the trial judge in this case was required to repeat verbatim comments in Lavallee when instructing the jury. On the other hand, there is some support for the use of model jury instructions to assist trial judges in conveying the defense of BWS to jurors (CAEFS, 1999). As noted from the obiter by Justice LHeureux-Dube, the Canadian court stops short of endorsing this approach.

LINGERING QUESTIONS Although Justice LHeureux-Dubes analysis helps clarify some important issues pertaining to BWS testimony, it has some limitations. Her clarification was raised as an obiter and endorsed only by another judge. Actually, the issues raised in the decision Malott divided the court along gender lines. Also, experts question whether BWS testimony makes a difference when it comes to outcome. One study done by Shaffer (1997), based on 35 cases, indicated that Lavallee has not led to a dramatic increase in successful self-defense claims by women. Additionally, BWS testimony in Canadian courts faces some two lingering issues that need to be addressed. One question centers on how the BWS testimony is applied to minority women (e.g., Native, Black, or Asian). This criticism is integral to the critical race theory in North America that argues that judges should include the issue of race in their deliberations and decisions. There has not been any case that directly addresses this issue in Canadian courts. In the U.S. literature there have been studies showing that the weak, passive stereotype painted by BWS has been ill fitting for women of color who have been contrarily stereotyped as strong and aggressive (Meier, 1993, 1997). Race and ethnicity matter when it comes to battering of women, because research has shown that this problem is commonly found among ethnic minorities. In the context of BWS, Canadian critical race theorists maintain that the reasonable person model as expounded by many feminists is based on White women and fails to acknowledge the realities of women of color (Aylward, 1999). They further pointed out that Lavallee was an aboriginal woman but the Court did not even address the issue of woman of color in this case. In this regard, Aylward (1999) cited the British case R. v. Camplin (1978) that underlies the importance of color and ethnic origin for the jury in the case of provocation. She suggested that the issue of race should be raised in the minds of the jury as to how a person of color would reasonably respond in the same context. In other words, the issue of race is relevant to the legal concept of reasonableness.

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

Battered Woman Syndrome Testimony in Canada

625

Another lingering issue has to do with the narrowness of BWS testimony that draws on Walkers works. There are ample instances when the lower courts in the United States, accepting uncritically Walkers premise that women are not able to break from the pattern of abuse, terminated a womans parental rights and ignored her active efforts to protect her children (In re Betty J. W., 1988). Even higher courts, such as the supreme court of New Jersey in the case of State v. Gladys Kelly (1984), completely accepted Walkers theory that women are trapped in learned helplessness and they fail to perceive alternatives to change their circumstances. Increasingly, analysts such as Dutton (1993) have challenged Walkers theories, contending that the psychological realities of battered women do not fit a singular profile (p. 1196). Rather, psychological reactions of battered women are highly diverse and complex (Schneider, 1996). One could, in fact, identify a range of traumatic reactions described in the scientific literature, and should not be limited to an examination of learned helplessness (Dutton, 1993, p. 1201). Finally, some critics point out that learned helplessness theory places too much emphasis upon the womans incapacity to rescue herself from the abusive situation, thus discounting any proactive measures on the womans part that aim at putting her outside of the protective realm of BSW theory (Faigman & Wright, 1997). There has been recent scholarship to reconceptualize the traditional legal framework for understanding battering of women. Importantly, American researchers such as Stark (1995) and Schneider (1995, 2002) challenged Walkers premises in that it applies only to a minority of battered women and only highlights the disabling effects of violence rather than womans survival skills. Offering an alternative interpretive explanation, Stark (1995) argued that the clinical profile revealed by battered women reflects the fact that they have been subjected to an ongoing strategy of intimidation, isolation, and control that extends to all areas of a womans life (p. 986). Such intimidation and control would lead to the deprivation of liberty and entrapment on the part of battered women. This coercive control frame draws our attention to a pattern of harms that deprive battered women of liberty and autonomy and presents a survivor who could be strategic. Based on her own research on battered women, Schneider (2002) concluded that a portrayal of [battered] women as solely victims or agents is neither accurate nor adequate to explain the complex realities of womens lives (p. 82). Starks analysis is congruent with that of Schneider (1996, 2002), who contended that battered women who kill are simultaneously both victims and agents/survivors.

CONCLUSIONS BWS has been vigorously challenged by some legal experts and academics in the United States. They argue that some defendants use the abuse excuse merely to relieve themselves from any duty to self-control (Wilson, 2001). They conclude there is no merit in this type of defense. In Canada such arguments are far and

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

626

International Journal of Offender Therapy and Comparative Criminology

few between in legal circles. On the contrary, advocates for battered women suggest it be expanded in several directions. There is some consensus that BWS testimony should describe more than battered womens psychological reactions to violence. Canadian scholars were critical of the syndromization of abuse right after Lavallee was delivered (Grant, 1991). These considerations led some experts (Dutton, 1993) to argue for a redefinition of BWS. Other legal experts go further and argue that BWS be dropped and replaced by a more general defense, battering and its effects (Downs, 1998). Evidence from professionals other than psychiatrists and psychologists should be admissible in court. Elsewhere, womens organizations in Britain argue for the enactment of a new defense of self-preservation on a murder charge for battered women in place of BWS. Legislating (or issuing directives or guidelines) some of these suggested changes is one quicker and efficient way to tackle the issues embedded in woman battering than waiting for another key court decision. The effective delivery of a campaign for legislative changes along these lines represents a real challenge to the womens groups that must enhance their social activism. But before these changes take place, to discard BWS testimony in toto is not the goal of most analysts. Another important consideration in this debate relates to the critical role of scientific investigations. Social science research is relevant to the legitimacy of BWS. Empirical investigations inform the courts and the public about the realities of battering (MacCrimmon, 1991; Meier, 1993; Schuller & Rzepa, 2002). Since the late 1970s, the body of social science knowledge on the nature and origin of woman battering has grown rapidly (Dutton, 1993; Meier, 1993). A reference of the courts to the latest empirical studies when BWS defense is raised is both invaluable and imperative to overcome the narrow base of knowledge that the courts now entertain. Unfortunately, few court decisions in North America canvass the scientific literature on battering of women other than Lenore Walkers theories. Many lawyers are not knowledgeable about the range of different psychological and psychosocial theories of battering (Schneider, 1996). The fact remains that Walkers explanation (with an emphasis on syndromization of abuses and psychological counseling for the abused women) has been the only theory taken seriously by the Canadian courts. But Walkers research has been challenged by numerous empirical studies (Gondolf & Fisher, 1988; Schneider, 2002; Straus, Gelles, & Steinmetz, 1980). Empirically, these studies rejected Walkers finding of learned helplessness on the part of many battered women. The cycle of violence prediction is also thrown into doubt when some studies find that both partners could be violent in their relationships. Obviously, times have changed since Walkers first elucidation of BWS. There are now competing explanations for battering of women in the social science literature. As observed by Rothenberg (2002), BWS is only one form of multiple victimization theories that gain cultural recognition. Theorists from this tradition, including Walker (1979), suggest that society is rather unresponsive to battered women (actually condoning it). They argue that the lack of protection afforded by

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

Battered Woman Syndrome Testimony in Canada

627

the court, police, and medical professionals to women is one major reason why women do not leave their abusers. Invariably, society, the family system, and patriarchy all contribute to the victimization of women with BWS. It is this social aspect of the theory that has been underemphasized by the Canadian courts. In this regard, Canadian courts could learn from the latest development of social science research on the battering of women. As noted, some researchers in the United States (Stark, 1995; Stark & Flitcraft, 1996) call for the adoption of coercive control frame by the courts that would focus on the restrictions on battered womens liberty and highlight a class of harms that extends beyond psychological or physical suffering to fundamental human rights. One of the strengths of this approach is that the basis of womens claims would be shifted from stigmatizing psychological assessments of traumatization to the links between structural inequality, the systemic nature of womens oppression in a particular relationship, and the harms associated with domination and resistance as it has been lived (Stark, 1995, p. 975). Although Walkers approach tends to shift focus away from the perpetrator, the coercive control frame rightly puts emphasis on the batterer and the relationship. The proper focus should be on control and loss of liberty on the part of battered women. As Schneider (2002) put it, battering is part of larger problems of power and control within intimate relationships (p. 66). Furthermore, the following heuristic questions may be offered for reflection for judges and legal experts. These important questions pertinent to BWS testimony can be answered by scientific research: Does BWS evidence influence the jury and judges? Does the instruction to the jury on BWS matter? How might the different forms of expert testimony affect the publics general belief of battering women? Clearly, such findings would help judges and the wider society to assess better the impact of BWS testimony. As one legal scholar rightly argued, law is rarely a complete answer to struggles for social justice (Boyd, 2003). Crucially important are findings from social science research. The strengthening of BWS testimony would call for courts review of continuing empirical research about battered women as well as the social context of battering. This could ultimately lead to the expansion of the BWS testimony from its circumscribed psychological realm to the broader social context.

REFERENCES
Aylward, C. (1999). Canadian critical race theory: Racism and the law. Halifax, Canada: Fernwood. Boyle, C. (2003). Child custody, law and womens work. Oxford, UK: Oxford University Press. Boyle, C. (1991). A duty to retreat? UBC Law Review, 25, 60-68. Canadian Association of Elizabeth Fry Society. (1999). The response of the Canadian Association of Elizabeth Fry Society to reforming criminal code defences: Provocation, self-defence and defence of property. Retrieved October 19, 2002, from http: www.elizabethfry.ca/Response/4.htm

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

628

International Journal of Offender Therapy and Comparative Criminology

Downs, D. (1998). More than victims: Battered women, the syndrome society and the law. Chicago: University of Chicago Press. Dutton, M. A. (1993). Understanding womens responses to domestic violence: A redefinition of battered woman syndrome. Hofstra Law Review, 21, 1191-1242. Faigman, D. L., & Wright, A. J. (1997). The battered woman syndrome in the age of science. Arizona Law Review, 39, 65-112. Gondolf, E. W., & Fisher, R. E. (1988). Battered women as survivors: An alternative to learned helplessness. Lexington, MA: Lexington Books. Grant, I. (1991). The syndromization of womens experience. UBC Law Review, 25, 51-59. Hancock, L. (1996). Aboriginality and lawyering: Problems for justice for Aboriginal defendants Focus on partner homicide. Violence Against Women, 2(4), 429-446. Hemphill, A. L. (1998). Spousal murder: A look at available defenses and their application from a feminist perspective. Chittys Law Journal and Family Law Review, 46[Part 2], 1-8. In Re Betty J. W., 179 W Va. 605; 371 E. E. 2d 326, Supreme Court of Appeals of West Virginia (1988). MacCrimmon, M. (1991). The social construction of reality and the rules of evidence. UBC Law Review, 25, 36-50. Martinson, D. (1991). Implications of Lavallee v. R. for other criminal law doctrines. UBC Law Review, 25, 25-36. Meier, J. (1993). Notes from the underground: Integrating psychological and legal perspectives on domestic violence in theory and practice. Hofstra Law Review, 2(1), 1295-1366. Meier, J. (1997). Domestic violence, character and social change in the welfare reform debate. Law and Policy, 19(2), 205-263. Pena, M. (2001). The role of appellate courts in domestic violence cases and the prospect of a new partner abuse cause of action. Review of Litigation, 20(2), 503-529. R. v. Bear, 42 W.C.B. (2d) 223 (1999). R. v. Camplin, 2 All England Law Report 168 (House of Lords) at 721 (1978). R. v. Lavallee, 76 C.R.(3d) 329 (S.C.C., 1990). R. v. Petel, 26 C.R.(4th) (S.C.C., 1994). R. v. Malott, 1.S.C.R. (S.C.C., 1998). Rothenberg, B. (2002). The success of the battered woman syndrome: An analysis of how cultural arguments succeed. Sociological Forum, 17(1), 81-103. Scheppele, K. L. (1992). Sexualized violence, evidentiary habits and the revision of truth. New York Law School Law Review, 37, 123-172. Schneider, E. M. (1995). Making reconceptualization of violence against woman real. Albany Law Review, 58, 1245-1252. Schneider, E. M. (1996). Resistance to equality. University of Pittsburgh Law Review, 57, 477-524. Schneider, E. M. (2002). Battered women and feminist lawmaking. New Haven, CT: Yale University Press. Schuller, R. A., & Hastings, P. A. (1996). Trials of battered women who kill: The impact of alternative forms of expert evidence. Law and Human Behavior, 20(2), 167-188. Schuller, R. A., & Rzepa, S. (2002). Expert evidence pertaining to battered woman syndrome: Its impact on jurors directions. Law and Human Behavior, 26(6), 655-673. Seddon, N. (1993). Domestic violence in Australia: The legal response. Sydney, Australia: Federation Press. Shaffer, M. (1997). The battered women syndrome revisited: Some complicating thoughts five years after R. v. Lavallee. University of Toronto Law Journal, 47(1), 1-33. Sheehy, E. (2000). Review of the self-defence review. Canadian Journal of Women and the Law, 12, 197-234. Sheehy, E., Stubbs, J., & Tolmie, J. (1992). Defending battered women on trial: The battered woman syndrome and its limitations. Criminal Law Journal, 6, 369-394. Stark, E. (1995). Re-presenting womans battering: From battered woman syndrome to coercive control. Albany Law Review, 58, 973-1026.

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012

Battered Woman Syndrome Testimony in Canada

629

Stark, E., & Flitcraft, A. (1996). Women at risk: Domestic violence and womens health. Thousand Oaks, CA: Sage. State v. Gladys Kelly, 97 N.J. 178, 478 A. 2d 364 (1984). Statistics Canada. (1993). The Violence Against Women survey. Ottawa: Author. Straus, M., Gelles, R., & Steinmetz, S. (1980). The marriage license as a hitting license. In M. Straus, R. Gelles, & S. Steinmetz (Eds.), Behind closed doors: Violence in the American family (pp. 3150). New York: Anchor Books. Tang, K. L. (1998). Rape law reform in Canada: Success and limitations of legislation. International Journal of Offender Therapy and Comparative Criminology, 42(3), 258-270. Tang, K. L. (2000). Cultural stereotypes and the justice system: The Canadian case of R. v. Ewanchuk. International Journal of Offender Therapy and Comparative Criminology, 44(6), 681-691. Tang, K. L. (2003) Combating racial discrimination: The effectiveness of an international legal regime. British Journal of Social Work, 33, 17-29. Trotter, G. T. (2001). Justice, politics and the royal prerogative of mercy: Examining the self-defence review. Queens Law Journal, 26(2), 339-395. Walker, L. (1979). The battered woman. New York: Harper & Row. Walker, L. (1992). Battered woman syndrome and self-defense. Notre Dame Journal of Law, Ethics and Public Policy, 6, 318-332. White-Mair, K. (2000). Experts and ordinary men: Locating R. v. Lavallee, battered woman syndrome, and the new psychiatric expertise on women within Canadian legal history. Canadian Journal of Women and the Law, 12, 406-438. Wilson, J. Q. (2001). Moral judgment. New York: Basic Books.

ACKNOWLEDGMENT I wish to thank the anonymous reviewers for their most helpful comments of an earlier version of this article.

Kwong-leung Tang, Ph.D., LL.M. Professor of Social Work Department of Social Work Chinese University of Hong Kong Shatin Hong Kong

Downloaded from ijo.sagepub.com by Hanna Viloria on October 15, 2012