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Crime and Mind Lecture 5

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Crime and Mind Lecture 5 October 13, 2011 Recap -Last week we talked about self-defence, the situation of women who attempt to or kill the abusers and wish to plead self- defence and feel they were acting in self-defence. We discussed the difficulties they experienced in making this plea because even though the prosecutors may be sympathetic to their view, the traditional doctrine is about limiting people’s access to claiming it. The traditional doctrine, which makes sense in terms of male on male violence is about saying you should only be able to defend yourself when you absolutely have to, and only to the extent that you have to, and so on. When this has been applied to women, they come off bad, even when they are abused. Sometimes they are seen as especially heinous, despite the sympathy and it has resulted in many murder convictions. -The response has been the psychological concept of BWS. Don’t underestimate how psychological a concept it is. It isn’t a concept that is meant to capture what women are thinking and how it’s bound up in their action. BWS is a deeply psychological concept meant to explain thoughts, feelings, and behaviors, but it isn’t meant to be a description of their rationalizations. It’s not meant to be a version of what they are thinking. Its meant to be 2 concepts, both of which relate to the inner working of the mind, that in many cases the woman may not be really aware. 1. -Learned helplessness- When people or animals are subject to some injury on a basis that they can’t control, the argument is that there’s a deep underlying psychological reaction (that they may not recognize) to adopt a passive and fatalistic state of mind. The psychological economy of it (the cost- benefit), though not something they’re thinking about, is basically that if you cant stop the injury or pain, you can at least stop yourself from getting anxious about it. The anxiety is all very well if it can lead to constructive avoiding action, but if it can’t, then it’s just redundant additional distress. In those circumstances, organs shut down in a fatalistic state of mind. So yes they’re being shocked in a cage if it’s an experiment, abused, or whatever the injuries are. But the level of anxiety has thus declined. This isn’t a conscious strategy. It’s just something that happens. It leads to (according to Walker) women not being able to see and explore all their options to take constructive action. They feel the man is omnipotent and omniscient. There’s nothing that anyone can do to stop them, nothing the law can do, nothing there friends can do, etc. and this is as a result of the abuse. It isn’t a result of her state of mind before the abuse. She isn’t a depressed person before the abuse or anything. It is, on a psychological level, a successful adaptation to the abuse. It’s a partial adaptation to the abuse. According to Walker, it explains why women in these situations don’t leave the abusive situations. It negates the thought that the abuse couldn’t have been that bad if they didn’t leave. It’s precisely because it is that bad that they lose the will and perspective to leave. 2. 2. -Cycle of violence- They aren’t blaming the victims of abuse for their own abuse. The concept isn’t simply a pattern of behavior by an abuser (man, goes through these 3 phases), for Walker, this is a 2 person deep psychological process. She experiences the stress of tension build-up herself. In that horrible extent, the abuse when it explodes into extreme violence, when it happens and then stops, she is actually a bit relieved to some degree. The tension has been dissipated. In that context she is particularly amenable to him saying he will never do it again, he’s sorry, he’ll get better, etc. Women because they are taken through this cycle, in which their reactions are connected with the cycle, its argued that they have a very profound and deep understanding (not that they can necessarily really articulate it) about when the abuse is going to seriously escalate. They can tell because they have been through these phases before, when it is going to build up and release. -This has been allowed in our legal system in Canada, having already been accepted in some American cases. In Lavalee, it was accepted even though there was no imminent threat. The SCC recognizes these two phases as how battered women syndrome testimony works, they have to show that the abuse was bad and that she couldn’t leave. They psychologically also have to show that she knew when the attack was coming. She has a good idea I a deep way of what was likely to occur, and the testimony becomes accepted. It is hard to track how successful this defence is because the ruling has changed prosecutorial practice a lot as well. It is probably more successful than it seems. However, it’s argued that it isn’t a very successful defence and is often rejected. -Since BWS testimony has been accepted, it has been strongly criticized from 2 directions. These directions are interesting because they have come from legal-traditionists (those who want to maintain the traditional legal model and who are suspicious of psychology), and rational actor sociological feminists as well (who object to how the psychological model has been used. The feminist rational actor theorists want the woman to be acquitted on the grounds of self- defence, but not by using a psychological construct). Traditional-Legal -A well-known traditional-legal critic, was Faigman. He says he accepts that there should be some modification to the way self-defence was handled by the courts and that there should be an extension is some mild way. However, in many of these cases, (according to him) the situation doesn’t meet the criteria of self-defence at all. If she isn’t being attacked at the time or about to be attacked, if she attacks him while he is asleep, if she arranges for someone else to kill them, it is just not self-defence. They have options and they are using BWS to get away with murder. He says the science on which it is based, suffers from methodological issues (no control croups, etc), that the statistics don’t really show that the women go through all 3 phases, etc. From his point of view, he thinks some are getting away from murder. -The feminist rational actors want the women acquitted. They argue that not enough women are acquitted using BWS testimony, but they have a deeper objection to the whole use of psychological testimony however. Examples of well- known writers in this field are Dobash and Dobash. They gave a standard critique of BWS from a feminist rational actor point of view. The whole idea that this is a psychological syndrome is tied to the idea that you need expert testimony. You need a scientist to come and tell the court what these women’s minds were doing. So that this reflects the way in which women are silenced in the CJS and in society, and they aren’t allowed to speak for themselves, and they need an expert to speak for them. They object to the way these women’s actions and behavior is turned into a syndrome, thus it pathologizes their behavior. They would say this takes rational behavior and suggests that it is really the product of a syndrome of disorder, which happens typically in regards to women’s offending. They would say that this isn’t a pathology. It is the standard response of a human being to this kind of trauma. This reflects the way we see women, as not being able to rationally respond to the threats in their lives, as becoming confused and misunderstanding their situations. Their solution is that the courts need to hear the woman’s own testimony about the limitations of their opportunity to escape from the violence. They need to hear the woman’s testimony about why they perceived the situation to be life threatening, what they understood in their mind, they need to understand what her rational response was. The court needs to hear about the woman’s limited options for leaving, which they may well have explored, and also the possible threat to their kids. Linked to this is (according to these people) is something that often gets missed in BWS story, which is that the legal system and social and welfare systems just don’t protect the women. There aren’t enough shelters and they cant hold the women long enough, police and courts can be ineffective. Women in abusive relationships are particularly vulnerable to lethal violence when they leave. Many who write from this perspective think it would be alright to have expert testimony on this, but they say that expert testimony about the social conditions isn’t effectively telling these women that they don’t know how their own mind works and that their own perceptions don’t count. It’s psychological expert testimony that does that. Sociological work, social work, people working in shelters have expert testimony that they can give that isn’t as insulting and demeaning to the women as psychological testimony. -The SCC heard a case a number of years after Lavallee, called Mallott. The central question in Mallot was about whether the jury could reject evidence of BWS and find for murder (for 2 degree murder). The SCC felt unanimously that the jury verdict should stand. That juries are the ones who have to test matters of fact, that we should defer to them, they havendo consider the evidence and if they weren’t convinced of the evidence, that’s their business. Thus, they upheld the 2 degree murder conviction. However, two women SCC judges wrote a note that goes along with the ruling that recognizes the critique of BWS testimony and that it doesn’t always work, apply, that there are dangers of seeing women in certain ways, etc. And it says that women could, however, lead other kinds of evidence, social evidence and testimony, rather than just the narrow psychological testimony and specifically testimony about BWS. We will look at research as to why these defences do or do not work. Even though Mallott was a long time ago, there haven’t been enough cases to know whether leaving out psychological testimony in favor of more so sociological and personal testimony has been more successful. So we don’t really know which works and which doesn’t. He mentioned before that in the UK, a different line has been taken (which sociological feminists don’t like), in which they offer the opportunity to plea provocation, which would lead to manslaughter finding, which would have some blame attached to it, and which would give the court could a free hand to decide whether to give a custodial sentence or not. So they have opened up a space for a different way of dealing with these cases, but it involves the jury finding the women partly responsible in these circumstances. Psychology in the Psychological Model -Walker sees herself as a feminist psychologist. After the 70’s, you find a complicated debate about the relationship between feminism, psychology, and psychiatry. Many women began to reject the kinds of claims that psychiatry and psychology made about the women’s psychology. They saw it as pseudo-science. They weren’t even sure they like the idea of science. They saw it as authoritarian, they saw it as men telling women what’s going on in their heads. They would say clinical psychology continues in that vein. Women see therapists who don’t address the real problems but make them feel frail and vulnerable. They give them medication, etc. Thus, there was a reaction against psychology in the women’s movement and was talk about restructuring psychology in a way that wasn’t so authoritarian, wasn’t so wrapped up in concepts of mathematical science and so on. Within that debate, there is also a wide range of views. There’s those that think that anything psychological is wrong. Down to others that think that you don’t need to tweak psychology and psychiatry that much. So if you look along that spectrum, Walker would fall towards the latter part. Walker sees herself as a feminist psychologist, but she doesn’t think psychology needs a huge overhaul in order to do that. She thinks feminism and psychology can work together. It is unfortunate that Seligman’s (learned helplessness creator) main research is on dogs. There are feminists saying that psychology is demeaning to women and it’s an authoritarian concept, and there is Walker, who is saying look at this research with dogs in cages and it will help you understand what women are going through. Thus, it is unfortunate. In any event, walker isn’t ashamed of the fact that she is a full-blown psychologist and she thinks it is important to have experts like her testify on the woman’s behalf. She says the courts and juries benefit from it because they see that they are helpful and credible. She talks about how psychologists giving testimony on BWS should be dressed to emphasize their authority (formal wear), to feed into the sense of their authority. From her point of view, to uncover and describe the underlying processes (which involves some level of a rational disability and of ability of learned helplessness and the cycle of violence). And for women who don’t really perceive this but have a psychologist who can help them understand this, for Walker, this isn’t a problem. She doesn’t think this takes away from the women because it fits in with a general model of what she thinks human beings are like. Psychologists tend to be committed at a very deep level, whether they buy into a machine analogy of the mind having inner workings, and articulate it that way or not. Regardless, psychologists tend to fundamentally buy into the idea that we do not understand our mental processes just by being alive and thinking about them. For Walker, this is just ordinary work. She sees this as basic, helpful to the women, not sexist, and in general, which is useful. -The interesting part is that walker and her followers aren’t just convinced that the psychology is true and helpful. They are convinced that the psychology will help the courts to assess the reasonableness of the woman’s actions. Not everyone agrees with this, but that’s her perspective. People like Noonan says it isn’t surprising that testimony on BWS doesn’t work well because you stand up in front of the jury, the juries have to assess whether the actions are reasonable or not. And you set them up for this decision by describing that the woman has learned helplessness on account of the battering. They describe elements of her irrationality, as central to understanding her actions (why she stayed, in the relationship, why the battering was bad, etc) then you say, her action was reasonable and those two things are intention. Well they are intention. So how is it that people like walker think the tension can be resolved? What’s going on is that they are introducing a radical shift in the way the law is meant to think. Remember the traditional legal model, when we talk about someone being reasonable, we are referring to the effects of consciousness (what we know goes on in our own minds). But we do things for reasons and we have to have the reasons in mind. We do certain things automatically, but we don’t really do sequences of action automatically. Experienced drivers drive automatically, but mostly, in order to accomplish something, you have to have it in mind and have to have thought it. When the law traditionally talks about reason, about an action being reasonable, they are really saying “what would an ordinary reasonable person have had in mind. What thoughts would they have had that relate to the situation before them. And then they’re asking if this situation is true and if the person had the right thoughts. That’s al they’re interested in. How people generate thoughts isn’t part of that. But then you say that a reasonable person is somebody who is a fictional figure, who is just about as reasonable as we usually are. Then the BWS people come in and say these women suffer from learned helplessness, and partly as a result of that, it is connected with them killing their abusive partners and it helps explain why their action is reasonable. So what they are saying is that the reasonable action and reasonable person isn’t someone has the right reasons in mind that made sense in terms of the situation. They are saying that the reasonable person is the ordinary psychological person. They are saying that anyone who suffered this level of abuse in this situation of powerlessness would have developed a different way of their mind functioning than someone who hadn’t suffered that. That’s part of the real situation that they find themselves in and that’s how their mind is working in a different way. So the standard to judge them by isn’t the standard about reasonableness as if psychology was unimportant, that standard of reasonableness has to be one that takes into account the psychological functioning’s of someone in the situation. It is unfair to the accused to say that we will ignore that if it happened to most people. This is just as unfair as it would be to judge me for failing to look after someone I am responsible for if someone gave me a sleeping drug. You can’t judge the quality of my conduct while ignoring a key factor that’s going to disrupt my conscious thought process. -What the argument is, is that if the standard of reasonableness should be what an ordinary person with ordinary psychological reactions can do, then that is a different concept than the traditional ordinary person that doesn’t have any psychological notion in the concept of a reasonable person at all. It may be natural for us to think about the ordinary person. If someone is in a foreign country and is kidnapped for a long period of time, and the captor leaves his gun one day, and I shot them. I probably won’t be held to the highest standard of reasonableness. Apart from the fact that we would be sympathetic to the violence done to them, we would also think that an ordinary person can’t react with that level of calm when they have the chance to escape from a traumatic experience. We can’t expect them to be firing on full calm judgement. So that’s what is being said here. It’s that the appropriate standard of reasonableness is what an ordinary psychologically functioning individual would be like in the circumstances. The jury doesn’t just have to imaginately put themselves in the ituation. They have to have scientific evidence about what goes on in people’s minds as a result of the trauma (So this is a way of expressing Walker’s view). So this is one of the ways in which BWS is argued to be more important than just on narrow questions about women, the law, and self-defence, but about the notion of the reasonable person. -A number of people (Faigman, Noonan a bit, the SCC in Lavallee) have suggested that this shift the ground towards a subjective test. This stops you asking what would a reasonable person have done, and asks in the circumstances, did the person honestly and sincerely feel that this was the necessity. Prof doesn’t know if this is the best way of expressing this. He isn’t sure that to say its more subjective is quite right. Because you can’t ignore this crucial part, which is the idea that the jury needs to have psychological evidence. They aren’t being invited to just say “I have heard what the woman felt like. Now am I sympathetic to that”. They are being asked to say “here’s a syndrome with symptoms and diagnoses and experts testifying, and I should factor this in terms of what they are telling me. So it isn’t quite subjective. -The pychologists who believe in BWS and feel that this is the appropriate way of understanding this are arguing that this allows for a different notion of reasonableness and that by that standard, that’s the appropriate standard to judge people on. It is unfair to say that someone wont be able to successfully plead self-defence if they are only doing what anyon would be likely to do in the circumstances, even if someone who hadn’t had the traumatic experience over a long time would do something different. They are arguing that if we are to appraise self-defence, and self-defence is what a reasonable person would have done in the circumstance, these women are acting in self-defence. Moreover, they are doing this on a kind of objective ground (not quite objective and not quite subjective, but it’s more like an objective ground because its about our ordinarily psychologically ordinary reasonable person. They are saying that self-defence is the right plea here in a lot of these cases, which in the past have often found to be murders. But it is also true, that many of those psychologically minded commentators will argue that even if the plea doesn’t succeed in getting an acquittal on the grounds of self-defence, but only results in mitigating the charge, or the finding or the sentence, that that in itself is worth doing. That if the BWS testimony ends with a finding of manslaughter, which sometimes happens (even though you cant really work through the fact pattern of manslaughter but sometimes the judge will take it, or first degree coming down to nd 2 degree, etc). Many of the psychologically minded people say this is better than nothing. They are making an argument for self-defence but really they are making a broader argument for mitigation (sort of equivalent to the provocation mitigation in the UK). Many of the rational actor feminist critics are insisting that anything less than an acquittal on self- defence is a failure, because these women should be seen as acting strictly in self-defence in a more conventional way. -There is a researcher who has used laboratory research about how this evidence works on jurors. She used mock jurors. Schuller does experiments and she is a psycho-legal status researcher. One of the ideas you see in discussions about BWS about what jurors think, she says there is good evidence for. This is that in regards to testimony on BWS, jurors tend to think either that the abuse wasn’t so bad if they stayed for a long time, or that she must have had some sort of masochistic enjoyment of it. Thus the evidence that she stayed for a long time detracts from the idea that this is serious and life threatening violence. So one of the things that the testimony is meant to do is challenge that notion. Her first research compared jurors and testimony and had a control group. nd -Overall, she found that when they saw evidence of BWS, the finding of 2 degree murder declined and self-defence increased. This is thus the desired effect. This was marked when the expert was saying that they examined her and disgnozed her with BWS. Thus, exactly what was supposed to happen with the whole use of BWS in the courts has actually occurred. This was particularly marked when the expert had said that they had diagnosed the woman as having been suffering from BWS. With the very specific testimony about the woman, it had a dramatic increase on the self- defence finding. -The testimony also created intervening variables so that when they saw BWS testimony, they were more likely to believe that the woman coudn’t leave the relationship despite the severity of the battering (that she was psychologically unable to), and they were more likely to believe that the relationship was more life threatening, and they were more likely to believe that she thought that the relationship was life threatening. So when they hear BWS testimony, they were more likely to think all of the objective as well as the subjective things that go with self-defence. And again, this was more marked when the epert testimony specifically said that the woman had been examined and she has BWS. What’s more is that the intervening variables were the ones that predicted for the outcome of self-defence. So Shuller’s research suggests that BWS really can have the effect that it is intended to have. It doesn’t always have that effect, and in some subsequent research, some of the dynamics of that occurred. What she did was she more or less repeated the research, except instead of showing it to individual jurors and then debriefing them individually, she showed them to groups of mock jurors and got them to deliberate. ndre, there was a marked difference in the findings. When they deliberated together, having BWS testimony lowered 2 degree murder and increased mandlaughter, but didn’t increase self-defence. What’s more, having jury deliberations had the effect that it didn’t make any difference whether the person spoke about BWS in general, or whether they said that they diagnosed this particular woman and found that they had BWS. Her explanation is that when people are acting alone, they are reluctant to make their own interpretations, but in a group deliberation they come to that conclusion on their own. According to her, the shift away from 2 degree murder but only to manslaughter isn’t entirely a bad thing according to her.She would prefer self-defence, but it is still reasonable. Again, the BWS testimony had the marked effect of convincing jurors that the woman had been severely abused. So this alternate way of constructing the reasonable person may not be the most important thing. The BWS testimony reassures the jurors that the woman, despite staying in the relationship for a significant period of time, had been very severely abused while there. Interestingly enough, confirming the suspicions of those who don’t like the testimony and who are worried that it can’t really exonherate in the way they want, not only was there a tendency for manslaugeter to increase rather than self- defene to increase, but a couple of the people participating in those deliberations said spontaneously in the deliberations that perhaps insanity would have been a better plea for the women, which is consequently what people like Dobash and Dobash are worried about because they say BWS pathologizes the women. Schuller in recent years, has done tests like this that suggest to her that the kind of sociological testimony that critics may advocate for would also be equally effective. She says you can sway jurors with that kind of testimony without the notion of a BWS. That is so far in the lab, and we don’t have really a set of cases that would allow us to see how it is working out one way of another. Noonan (Rational Actor Feminist) -The Noonan article gives a good summary of the Rational Actor Feminist critique of BWS. There’s an interesting relationship between her views and a legal conservative like Faigman (broadly). Traditional law is a rational actor position, although it’s a not a sociological one. Thus, there are points of conversion. The points of convergence may be problematic because they will make some similar arg
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