Crime and Mind
October 6, 2011
Battered Women’s Syndrome
-Though BWS is used in the courts in a number of ways, the one interesting place where the psychological concept of
BWS is in the law, is in cases where women who are victims of abusive male partners kill them, attempt to, or arrange to.
They try to plead self-defence or some other mitigation when charged with the homicide.
-What normally happens, is that we aren’t talking about women reacting to a violent situation, they have at this time
initiated the violence. At this time, many times the men are vulnerable at the time. They try to plea self-defence (in the US
for example), but if they fail, the DA will press for murder and often the death penalty.
-BWS raises questions about the situation of women in a legal system developed by men and about men. Central to the
debates is whether the law can adapt in a way that makes it more responsive to women than in the past.
-Another issue is the role of expert testimony (psychological) in contrast to sociological in the courts. So although he
debate is about women, the concerns about the gender are central, though many of the claims are similar to the claims
people make about psychology in general.
-Arguments are often made that there is something about these cases that is important in public discourse. Thus, you cant
always look at the individuals, you have to look at what it says about the law in general and women in general. People can
object to this and focus solely on the individual women, but many think we should consider broader issues.
-There is a range of different concerns in which the models of the mind are addressed.
-Let’s start by talking about the self-defence law by itself. He will show us that the self-defence parts of the criminal code
are connected to other parts. Thus we can pull out certain condon principles that are at work in other sections.
-s.34 (with its 2 subsections, we will deal with mostly the 2 ). This section is self-defence against unprovoked assault and
extent of justification: They are justified in repelling force by force as long as it isn’t to cause grievous bodily harm and no
more force than necessary is used.
-You can only do what’s necessary to defend yourself against the act (in situations where no one is seriously injured).
-(Serious cases) Everyone who is unlawfully assault and causes death in repelling. If one is attacked, and one kills the
other person or inflicts serious injury, they have to show that they needed to do this. It was necessary to preserve
themselves and that their reaction was proportional. So if you are just shoved, you can’t beat them to death.
-Thus the action has to be necessary and proportional. This is the same as section 1, but they are articulating it for when
someone is seriously injured or dead. The danger must be imminent.
-When you read about this, you will see that there’s an objective and subjective test. The objective and subjective words
are laced into the code. The objective test is would a reasonable person have felt the need to kill or seriously injure the
individual given the circumstances. This generally translates into, did this person need to kill or seriously injure them. So
you have to convince the jury that you did the right thing. The jury must also be convinced that you actually did believe
that you were doing the right thing.
-Thus there’s an objective and then a subjective test.
-s.35 logically follows from s.34, and this basically means that if someone attacks you with lethal force, you can return with
the same. However, if you are mildly provoked, and they attack you in a severe way, you can return it.***.
-Has a special definition, and isn’t to do with the law of provocation.
-Thus when you are attacked you can defend yourself, but only as is necessary. If the attack is minor, your response has
to be proportionate. If their attack is near lethal or lethal, you can use all the force you need to in order to repel the attack.
These basic issues are dealt with in many other sections in the code as well.
s.40- dwelling: This is saying that if you are in your house and someone persists to try to get in, you can assume
murderous intent and use whatever force is necessary.
-We will be getting to women who kill their abusive partners. Provocation is a defence to murder that reduces it to
manslaughter. Many think this is unfair to women. There are women who kill their partners after years of extreme abuse
and their self-defence claims are abused. S.232 says it has to have been done in the heat of passion as a result of
provocation before they had time to cool down, etc.
-The standard provocation situation is usually in cases where a man discovers his woman having an affair or having sex
at the time, and they react immediately to the situation. Historically, this was a part of a man possessing a women and it
was seen as partial justification. This began to be argue as a kind of psychological loss of control. It got psychologized.
Feminists argues that this is maintaining the same excuse and have suggested it should be abandoned. Recently in the
UK, they (1) said this is no longer the basis of a provocation claim (woman in bed with another). (2) they changed the law
of provocation to allow women who kill their abusive partners to claim provocation even if it isn’t done on the sudden.
Thus, they’ve shifted the law in the way the feminists wanted, but this hasn’t happened in Canada.
Self-Defence and BWS
-The tagline is “extent of justification”. The section is about placing limits on what counts as self-defence, it isn’t simply
saying go ahead and defence yourself. They will carefully describe self-defence and the limits of what you can and can’t
do.You can only do what’s necessary and no more, and it has to be proportional. If the attack is minor, you can only use a
low level of violence. It is all about what counts and you can only def