In Defence of Battered Women Who Kill

In Defence of Battered Women Who Kill
Author(s): Aileen McColgan

Source: Oxford Journal of Legal Studies, Vol. 13, No. 4 (Winter, 1993), pp. 508-529
Published by: Oxford University Press
Stable URL: https://www.jstor.org/stable/764547
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In Defence of Battered Women who
Kill
AILEEN McCOLGAN*
Over the last number of years the commonplace nature of p

abuse within families has been increasingly brought into the
are much more likely to experience violence at the hands of
from the strangers they are taught to fear,' and many women
killed by their husbands or lovers.2 While the extent of private
to be overlooked by measures such as the Child Support Ac
recognition of its existence and, to a lesser extent perhaps,
experienced by women who attempt to escape it, has focused
legal plight of battered women who kill their abusers.4
One such woman was Sara Thornton. Her conviction for m
1990, and more especially the rejection of her appeal,5 cau
public unease. The apparent injustice of her plight was highl
* Lecturer in Law, King's College, London. I would like to express my thanks to t

whose library has provided me with access to US and Canadian materials, and to Profes
Keith Ewing for their comments on an earlier draft.
I The term 'partner' will be used throughout to mean current or ex, legal or de f
statistics suggest that up to half of all married women suffer some form of brutality at the
Langley & R. Levy Wife Beating (1977)). L. Smith's Home Office Research Study
(HMSO 1987) suggests an incidence of between 10 and 25 percent in the UK but, g
reporting of private violence-see the Islington Crime Survey, Gower (1986), it is possib
abuse is higher.
2 Home Office Statistics for 1990 show that, in 43 percent of UK homicides where th
principal suspect was a partner. This figure was comparable with the figures for 1983-
with the 5 percent of male homicides where the principal suspect fell into this categor
3 The legislation, which was implemented on 5 April 1993, aims to 'claw back' state su
from errant fathers. It requires (ss 4 & 6) that parents who seek or are in receipt of 'inco
any other benefit of a prescribed kind' provide information to trace the absent parent u
(s 6(2)) 'considers that there are reasonable grounds for believing that (a) if the parent
that authority; or (b) if she were to give it, there would be a risk of her or of any child livi
or undue distress as a result'. While it remains to be seen how the Secretary of State exe
the imposition of a prima-facie duty to name the absent parent or face a reductio
exemptions will be more the exception than the rule, and is a cause for concern in view
parents' organization) survey (reported in The Independent, 17 March 1992) which in
third of single mothers feared or had suffered violence from the father of their child(
4 Although statistics are not available for the UK, S. Edwards states in 'Battered W
1380 that 75 percent of women in the US who kill their husbands have been battered b
picture is similar: in 'Provocation or Self-Defense for Battered Women who Kill',
Murder (1991), J. Tomie cites 1986 statistics for New South Wales showing that, in
women killed their husbands, police records showed that they had been battered by
certain (above, note 2), that the actual level of previous abuse was even higher.
I Thornton [1992] 1 All ER 306.
0 Oxford University Press 1993 Oxford Journal of Legal Studies Vol 13, No 4
WINTER 1993 In Defence of Battered Women who Kill 509
year suspended sentence imposed on Joseph McGrail two days after the rejectio
of her appeal. Freeing McGrail, who had kicked to death his alcoholic wife as sh
lay drunk, Popplewell J declared that she 'would have tried the patience of a
saint'.6 The law has been accused of sexism before' and the Thornton case was
far from unique.8 It seized the public imagination, however, led to as-yet
unsuccessful attempts by Labour MPs Jack Ashley and Harry Cohen to alter the
law on provocation, and has continued to resonate through media coverage of
similar cases since. In doing so it has drawn attention to the apparently
haphazard quality of justice experienced by battered women who kill: Sara
Thornton received a life sentence for murder when she stabbed her violent,
alcoholic husband after an argument during which he told her that he would kill
her as she slept; Jane Scotland received a non-custodial sentence for man-
slaughter when she bludgeoned her husband to death after twenty-two years of
'mental torture', physical ill-treatment and the sexual abuse of their daughter,9
and Pamela Sainsbury received a two-year suspended sentence for manslaughter
on the ground of diminished responsibility from a trial judge who took the view
that her violent and jealous husband had 'psychologically paralysed' her. More
recently Kiranjit Ahluwalia's appeal against her murder conviction was allowed
by the Court of Appeal on the ground that the trial judge had refused to admit
evidence of the defendant's endogenous depression, presumably the result of
continued battering.10 A retrial was ordered and, her plea of diminished
responsibility having been accepted by the prosecution on the grounds that she
was suffering from 'battered woman syndrome', she was sentenced to three
years' and four months' imprisonment, which time she had already served."
In many cases there appears to be little to distinguish between killings which
lead to non-custodial penalties and those which result in the mandatory life
sentence for murder. While this is to a certain extent inevitable in a jury-based
criminal justice system, the problem is aggravated in the context of battered
women who kill by the inherent unsuitability of the partial defences of provoca-
tion and diminished responsibility upon which they presently rely.'" Not all
6 Birmingham Crown Court 31 July 1991, unreported. The Free Sara Thornton Campaign's literature
highlighted the contrast between these remarks and Judge J's reminder to the Thornton jury 'that there are many,
many unhappy, indeed miserable, husbands and wives. It is a fact of life.'
' In respect of the unfettered admission of complainants' sexual history evidence in rape trials (now altered by
the Sexual Offences (Amendment) Act 1976, and the marital rape exemption (removed by the House of Lords in R
v R [1991] 4 All ER 481).
1 In 1987, 37.5 percent of women and 26.6 percent of men who killed spouses were convicted of murder
(Edwards above, n 4). The presentation of Home Office statistics (produced on 17 October 1991 in a written answer
to Sir John Wheeler, MP), which show that 1987 was the only year between 1982 and 1989 in which a higher
proportion of women than men were convicted of murder rather than manslaughter, is criticized by S. Bandalli
'Provocation from the Home Office' [1992] Grim LR 761.
P The Independent, 24 March 1992.
'o Ahluwalia [1992] 4 All ER 889.
" See discussion of Alhuwalia in Edwards, 'Battered Woman Syndrome' [1992] NLJ 1350.
12 Diminished responsibility and provocation (ss 2 & 3 respectively of the Homicide Act 1957) are partial
defences in that, if successfully pleaded, they result in manslaughter convictions rather than complete acquittals. In
many cases battered women who kill avoid murder convictions primarily because of prosecution willingness to
accept pleas of guilty to manslaughter on facts which might not establish either of the partial defences were they to
be tested at trial-see A. Ashworth 'Sentencing in Provocation Cases' [1975] Crirm LR 553 at 561 & J. Horder 'Sex,
Violence & Sentencing in Domestic Provocation Cases' [1989] Crim LR 566.
510 Oxford Journal of Legal Studies VOL. 13
battered women who kill their abusers do so under the same circum
strike back in the midst of physical attack; some in response t
some use force in the aftermath of an attack or in anticipation of
perhaps are motivated by feelings of revenge. This together wi
number of defendants concerned13 makes generalizations difficult
of the defence or partial defence most appropriately pleaded by
on the exact circumstances of her case. This paper will seek to
that self-defence (whether at common law or under section 3
Law Act 1967) should be more often considered as a possible d
those cases whose facts do not correspond with the tradition
defence.4
Proposals for improving the defence of battered women who kill in the UK
tend to focus on the modification or re-interpretation'5 of the provocation
defence, and a new approach to provocation would be of assistance to some
battered women who kill. It will however be argued that self-defence more
adequately reflects the facts of many cases and that, properly understood and
applied, it may be more likely to result in an acquittal than either provocation or
diminished responsibility would be to avoid a murder conviction. A movemen
towards the use of self-defence in situations other than those which involve
traditionally paradigmatic applications of its principles would continue a tren
started about ten years ago in the United States'6 and which has also found
favour more recently with the Supreme Court of Canada in Lavallee." In some
respects the current UK law of self-defence avails itself more readily to such a
application than does the law in Canada or in many US jurisdictions,'8 but such
movement involves a rethinking of the traditional view of self-defence and
consideration of the possible use of expert evidence in the defence of battere
13 Edward (above n 4) states that between twelve and twenty-one battered women kill their spouses in the UK
each year.
14 Self-defence is properly analysed as negativing an element of the offence, that is, the unlawfulness which is an
element of every offence, rather than as a defence properly so called. This has important implications for the role of
the defendant's mistake of fact, for a discussion of which see Beckford [1988] AC 130, discussed below.
Nevertheless, throughout the paper self-defence will be referred to, for the purposes of convenience, as a defence.
'5 S. Yeo 'Provocation Down Under' [1991] NLJ 1200, Edwards (above, n 4). Cf C. Wells 'Domestic Violence
and Self-Defence' [1990] NLJ, 127.
`6 In People v Diaz No 2714 (Supreme Court Bronx Co., New York 1983) the Supreme Court of New York
accepted a plea of self-defence from a woman who shot her abusive husband as he slept. He had threatened to kill
her after beating her, raping her, and forcing her to submit to being raped by a stranger. The Court accepted her
claim that her fear of him overcame her as she watched him sleeping. More recently, however, the Supreme Court
of Kansas refused to follow suit in State v Stewart 243 Kan. 639 where it ruled that, a woman who killed her
sleeping husband could not, as a matter of law, plead self-defence.
'7 [1990] 1 SCR 852 discussed below. This decision marked a change from the traditional approach, discussed by
J. Castel in 'Discerning Justice for Battered Women who Kill' 48 Toronto Faculty of Law Review 229, 231, of
advising battered women to plead insanity or diminished capacity.
8t The Canadian Criminal Code RSC 1985, c C-46, s 34 requires, in order to acquit a defendant who has killed or
caused grievous bodily harm in repelling an assault, that her apprehension of death or grievous bodily harm was
'reasonable', and that she believed 'on reasonable and probable grounds' that she could not otherwise defend
herself. Although the US Model Penal Code (3.04) states merely that 'the use of force upon or toward another
person is justified when the actor believes that such force is immediately necessary for the purpose of protecting
himself against the use of force by such other person on the present occasion', most US states require a 'reasonable'
belief in imminent danger. In the UK there is no requirement that the defendant's belief in the existence of a threat
was reasonable, the defendant being entitled to an acquittal if her use of deadly force was reasonable on the facts as
she saw them-Beckford (above n 14, discussed below).
women who kill. This latter point is particularly important in the light of the
recent acceptance by the Court of Appeal of the admissibility of expert
psychiatric evidence of the effects of continued battering.19" An attempt will be
made here to transpose some of the Canadian and US reasoning into the UK
context, to review the problems that have arisen, and to suggest how their
repetition could be avoided here. Before turning to a discussion of self-defence
and its potential for the defence of battered women who kill, however, the failure
of the present law to provide even a partial defence for many such defendants will
be briefly discussed.
The problems incurred by battered women killers who attempt to plead
provocation have been documented elsewhere,20 and this paper shall do no more
than point to a few recent cases in which the defence has failed in order to
illustrate its unsuitability for many women who kill abusive partners. The rule in
Duffy2' that the defendant's loss of self-control must be 'sudden and temporary
in order to found the defence led to an unfavourable jury direction in Thornton
where the defendant had left the scene of provocation and fetched a knife before
returning and stabbing her husband. In Duffy, a case itself concerned with
homicide by a battered woman, the Court of Appeal approved the statement of
Devlin J (as he then was) that a 'long course of conduct causing suffering and
anxiety are not by themselves sufficient to constitute provocation', and that
'circumstances [such as a history of abuse] which induce a desire for revenge are
inconsistent with provocation'. 12 While the judge's power to determine the
sufficiency of the provocation has since been removed by section 3 of the
Homicide Act 1957,23 the Court of Appeal in Thornton expressed the view that
the 'sudden and temporary' requirement was particularly important in cases
involving cumulative provocation24 in order to distinguish those who killed in the
heat of passion from those who had time to reflect and regain control before
killing deliberately. In Ahluwalia too, the Court of Appeal refused to jettison the
'sudden and temporary' rule. Lord Taylor CJ ruled that the defence 'would not
as a matter of law be negatived simply because of the delayed reaction in cases of
women subjected frequently over a period to violent treatment, provided that at
the time of the killing there was a sudden and temporary loss of self control',25
but stated that it remained open to the judge to draw the attention of the jury to
'9 Ahluwalia (above, n 10).
20 See Edwards (above, n 4), Yeo (above, n 15), L. Taylor, 'Provoked Passion in Men and Women: Heat-of-
Passion Manslaughter and Imperfect Self-Defense' 33 UCLA LR, 679.
21 [1949] 1 All ER 932.
2 Ibid, 932.
2 Which, according to Lord Diplock in Camplin, [1978] 2 All ER 168, 173 required that the defence be left to the
jury in any case where 'there is evidence on which the jury can find that the person charged was provoked (whether
by things done or by things said or by both together) to lose his self-control'.
24 See M. Wasik 'Cumulative Provocation and Domestic Killing [1982] Crim LR 29. Wasik states that
'[c]umulative provocation defies precise description, but typically it involves a course of cruel or violent conduct by
the deceased, often in a domestic setting, lasting over a substantial period of time, which culminates in the victim of
that conduct, or someone acting on his or her behalf, intentionally killing the tormentor'. He found evidence that
the courts were sometimes willing to accept pleas of provocation in such cases where the provocation immediately
before the killing was very minor, and even sometimes where there was no such provocation (see his discussions of
Wright (The Times 18 November 1980) and Ratcliffe (The Times 4 December 1980).
25 Above, n 10, 896.
any delay between provocation and response. 'The longer the
stronger the evidence of deliberation on the part of the defend
declared, 'the more likely it will be that the prosecution will n
tion'.26 The interpretation of the 'sudden and temporary'
adopted by the Court of Appeal in Ahluwalia might be of som
battered women killers in that it links the requirement of su
nature of the loss of control itself rather than, as was apparent
case, to the relationship in time between the provocation and th
The court's approval, however, of previous authority includin
Thornton (where a delay of seconds was commented unfavoura
judge whose jury direction the Court of Appeal approved of), t
readiness to order a retrial on the basis of diminished responsib
provocation, must cast doubt on any interpretation of the de
forward on behalf of battered women who kill.
Even if Lord Taylor's words were interpreted to allow the provocation defence
where a woman delayed before acting in response to provocation, section 3 of the
Homicide Act requires the jury to consider 'whether the provocation was enough
to make a reasonable man do as [the defendant] did'. Although the Court of
Appeal in Thornton accepted that the defendant's history of abuse would affect
the reasonableness of her response to provocation (despite approving the
remarks of Judge J at first instance that it would be difficult for the jury to
consider the defendant's behaviour reasonable given the existence of alternatives
'like walking out or going upstairs'), the trial judge in Ahluwalia directed the
jury that '[t]he only characteristics of the defendant about which you know
specifically that might be relevant [to the gravity of her husband's provocation to
her] are that she is an Asian woman married, incidentally, to an Asian man, the
deceased living in this country'.27 The Court of Appeal rejected the argument
that the defendant's history of abuse at the hands of her husband amounted of
itself to a characteristic with which the reasonable man could be imbued for the
purpose of assessing whether her behaviour was reasonable, although Lord
Taylor did leave open the possibility that evidence of a specific disorder such as
'post-traumatic stress disorder or battered woman syndrome or any other
specific condition' might amount to such a characteristic, provided it was of a
sufficiently permanent nature.1 Again, and despite accepting that the medical
evidence before them might have required a different ruling on the reasonable
26 Ibid, 896.
27 Edwards (above, n 4), 1380.
28 The 'permanence' requirement was laid down by the Court of Appeal in Newell (1980) 71 Cr App R which
endorsed the New Zealand case of McGregor [1962) NZLR 1069. Lord Taylor's suggestion that evidence of a
specific disorder could be considered a 'characteristic' for the purposes of the reasonable man test may be
inconsistent with the decision in Roberts (1990) Crim LR 51 where the Court of Appeal allowed the defendant's
deafness to be taken into account insofar as it was relevant to the gravity of the provocation to him, but ruled that his
tendency to irrational violence, itself the result of his prelingual deafness, could not be considered a characteristic of
the reasonable man. Insofar as the 'post-traumatic stress disorder or any other specific condition' had an effect on
the defendant's powers of self-control, its admission as a characteristic would offend the very purpose for which the
objective test exists, that is, to prevent the accused being given the benefit of poor self-control even where, as in
Roberts the weakness was the result of a characteristic itself admissible into the 'reasonable man' test.
man test had it been available to the trial judge, the 'Court of Appeal took the
view that the trial judge's direction was correct in law and ordered a retrial on the
basis that expert evidence of the defendant's 'endogenous depression' should
have been considered, not in the context of the provocation defence, but in
relation to diminished responsibility which had not been pleaded at the first trial.
Ahluwalia's release has been hailed as a 'landmark' in that '[fJor the first time,
in a case where a battered woman kills her husband the court has taken on board
as of legal relevance evidence of the psychological effects on her state of mind of
living in a battering relationship'.29 The declaration of the admissibility of
psychiatric evidence may enable future defendants to mount challenges to jurors'
perceptions of domestic violence although the American experience, discussed
below, suggests that such evidence often operates as a double-edged sword. This
aspect of the decision should not however be allowed to obscure the fact that the
Court of Appeal's favouring of diminished responsibility over provocation in
this case will most probably have the effect that the future defence of many more
battered women will be argued on the basis of diminished responsibility. This
course is not without its practical difficulties, as section 2 of the Homicide Act
requires that the impairment of mental responsibility relied upon in a diminished
responsibility plea results from an 'abnormality of the mind (whether arising
from a condition of arrested or retarded development of mind or any other
inherent causes or induced by disease or injury)' rather than merely from a
serious emotional upset. This definition does not, on the face of it, apply to
women who can see no escape from violence except through their own use of
force, and prosecutors may not always be so ready to accept flawed pleas of
diminished responsibility as they showed themselves in the Ahluwalia case.
Relying on diminished responsibility may in many cases be tantamount to
flinging the defendant on the mercy of the prosecution, which tactic, even if
successful, renders her vulnerable to institutionalization.30
Research suggests that many battered women kill in order to escape the threat
of death or serious injury, or to protect their children.3' Insofar as this is the case,
they should be afforded the same defence as is available to men who kill for the
same reasons although, given their relative safety in the private sphere and the
greater likelihood of their physical parity with potential attackers, in different
circumstances. This paper does not seek to argue that battered women should
automatically be acquitted on the basis of self-defence; nor does it seek to argue
that they should be given preferential treatment by the courts. It does put
29 Edwards (above, n 11).
o A. Ashworth Principles of Criminal Law (1991), 249-50 records that, between 1984 and 1986, almost half of the
229 cases of manslaughter on the ground of diminished responsibility were dealt with by way of hospitalization
orders under the Mental Health Act 1983, and a further 35 percent by way of prison sentences ranging from life (10
percent of all disposals) to less than four years (a further 10 percent).
31 Contrary to the apparent assumption that battered women who kill generally do so out of the desire for revenge
(see judicial comments in Duffy (above, n 21), and in Thornton (above, n 5), Walker suggests (Terrifying Love (1989)
at 201) that the anger many battered women who kill their abusers feel towards their deceased partners is part of the
recovery process, the killings having been committed in fear. See also Totman (n 48) & Browne, (n 46) below.
Edwards too, (above, n 11) reports that 'if we listen to the vocabulary of battered women who kill, they talk in
language of self-defence . . .'
forward the position that the reasons for which they kill must be
in the determination of their criminal liability, that the tradition
defence must not be allowed to prevent the application of it
appropriate cases where battered women kill, and that misinfor
about women's responsibility in their own abuse must not be
them justice.
Self-defence32
Self-defence can be pleaded at common law and under section 3(1) of the
Criminal Law Act which states that '[a] person may use such force as is
reasonable in the circumstances in the prevention of crime'. Although section
3(2) provides that section 3(1) replaces the common law wherever the force is
used for a purpose mentioned in section 3(1), the Court of Appeal in Cousins33
took the view that the common law and statutory defences co-existed and there
are as yet no recorded appellate decisions where self-defence has been pleaded
under section 3(1). In any case, section 3(1)'s 'reasonable in the circumstances' is
a very vague standard and although the question of reasonableness is one of fact,
it is probable that the jury would be directed, in accordance with common law
self-defence, that the use of force could not be reasonable unless it was both
necessary and proportionate34 to the harm which the defendant sought to
prevent.
The concepts of necessity and proportionality, through which reasonableness
will be judged, have developed at common law largely through cases concerning
male defendants. The importance of previous cases lies, not merely in the strictly
legal sense of the precedents they set (which are technically irrelevant to issues of
fact such as reasonableness), but in the model they create of the type of cases in
which a particular result is obtained. The generalized nature of legal rules means
that they must be interpreted in every case in order to determine whether or not
they fit the facts. While in many cases the interpretive process will be automatic
(whether a complainant is a 'woman' for the purposes of a rape charge35 will
rarely be an issue), in others the issue is less clear and will fall to be interpreted
by the court. This may be a matter for the judge (where for example the question
is whether a transsexual is legally a man or a woman), or for the jury. This latter
happens not only where the jury has to decide whether or not the defendant
behaved in a particular way, but also where the question concerns a concept such
as that of reasonableness, where the jury has to assess the facts as found against
an essentially unquantifiable standard. Where this is the case, the jury will of
32 The term 'self-defence' will be used here for the sake of convenience, rather than the more accurate 'private
defence'. This is not to obscure the fact that women who kill may do so to protect their children as well as
themselves.
" [1982] QB 526, discussed by G. Sullivan [1983] 46 MLR 79. This paper will proceed on the basis that the
defence of self- or private-defence is the same at common law and under s 3, and will use the term 'self-defence' as
the typical case discussed is where a woman uses force primarily to protect herself.
3 A. Ashworth 'Self-defence and the Right to Life' [1975] CLJ 282 & above, n 30, 114-122.
35 Under ss 1 of the Sexual Offences Acts 1956 & 1976, only women can be raped.
necessity focus on an idealized model of what is reasonable and assess the
defendant's conduct against this standard.36 The relative scarcity of female
killers has resulted in a paradigmatically male ideal model and this, together with
the incompatability of aggressive force with stereotypical feminity, means that
the apparently gender-neutral concept of reasonableness is actually weighted
against the female defendant." It is perhaps for these reasons that many cases in
which women kill in order to protect their own lives or those of their children are
simply not perceived as instances of self-defence.
Even where women kill in the course of a violent attack upon them, defence
lawyers and the courts are apparently blind to the possibilities of a self-defence
plea. Janet Gardner, for example, killed her abusive partner in the midst of a
violent attack by him. He had his hands around her neck and was beating her
head against the kitchen doorway when she grabbed a knife from the wall and
fatally stabbed him. He had regularly beaten, kicked and punched her over a
period of five years, and had on one occasion attempted to slit her throat. She had
tried to escape him on many occasions but her will had been broken on each of
these occasions by his persistence in tracking her down and renewing his attacks
upon her. The Court of Appeal, in replacing her five-year sentence for man-
slaughter on the ground of provocation with a two-year probation order on the
basis of psychiatric evidence that she was suffering from severe depressive illness
triggered by years of abuse, warned that there were 'exceptional circumstances'
in the case and opined that the year she had already spent in jail was sufficient to
'expiate in some measure the guilt she must feel for the rest of her life'.38 The way
in which this case was approached by lawyers and the courts may be contrasted
with the acquittal the previous day of one Barry Crane, who had shot and killed a
man in the course of an argument. Crane had earlier been accused of 'inconsider-
ate parking' by his victim, and had produced a self-loading pistol when an
argument developed between them shortly afterwards in a pub. The deceased
lunged at Crane with a knife. Crane shot him twice, the second shot was fatal.
The judge directed the jury to acquit Crane on the grounds that the prosecution
had failed to prove that he was not acting in self-defence.39 Crane was fined for
possessing a fire-arm without a certificate: no apparent mention was made of any
need to expiate his guilt over the death. It is clear, then, that self-defence is not
3* For a discussion of the role of 'ideal narratives' in judicial decision making see P. Nehrot 'The Fact of Law' in
G. Teubner (ed) Autopoeitic Law: A New Approach to Law & Society.
" P. Crocker records that in the US, the courts have been so uneasy about finding women's use of force
reasonable that, even in those cases which have fitted the traditional model of self-defence to the extent that the
defendant struck out whilst actually under attack, 'the defendants found it necessary to introduce evidence of prior
severe or life-threatening attacks by the victim to counter the cultural assumptions that women are unable to
perceive danger reasonably'. See Crocker 'The Meaning of Equality for Battered Women Who Kill Men in Self-
Defense' (1985) 8 Harv Women's LJ 121, 143 citing Smith v State (Georgia Supreme Court, [1981] 247 Ga 612),
Strong v State (trial court, [1983] 251 Ga 540), and State v Borders (Florida District Court of Appeal, [1983] 433
So 2d 1325). Crocker also points out the dangers inherent in using such evidence to support the reasonableness of
the defendants use of force: 'the same evidence may be used to cast doubt on the severity of the attack in question
because she did not respond similarly to prior beatings. This could lead the jury to conclude that her perception of
danger at the time she acted in self-defense was unreasonable and that the degree of force used was excessive'.
s The Independent, 30 October 1992.
* The Independent, 29 October 1992.
readily advanced on behalf of battered women who kill. It wi
argued that this is more the result of the male ideal model of th
the principles upon which the defence rests, and that argu
principles may be used to counteract the prejudice inherent
afford the defence, not only to women like Janet Gardner w
violent attack, but to all those whose use of force is reasonable in the circum-
stances properly considered.
In assessing whether the defendant's use of force was reasonable, the court will
first consider whether her use of force was necessary. Where the defendant kills
her abuser in the midst of a violent attack by him, it is likely that her only
alternatives to the use of force would consist of submission or flight. There may
be circumstances under which submission might be the only reasonable course
(where overwhelming physical force would be required to prevent the infliction
of a very minor harm"), but submission is untenable as an option in the context
of the repeated, severe, and frequently life-threatening attacks suffered by many
battered women. As far as the possibility of flight is concerned, while there is no
absolute duty to retreat before using force in self-defence,41 '[I]t may in some
cases be only sensible and clearly possible to take some avoiding action'42 and a
'demonstration by [the defendant] at the time that he did not want to fight is, no
doubt, the best evidence that he was acting reasonably and in good faith in self-
defence'.43 Where avoiding action is 'sensible and clearly possible' the use of
force by the defendant will not be 'reasonably necessary' and will not therefore
fulfil the requirements of self-defence. There are cases (when, for example, an
argument between strangers threatens to escalate into physical violence) where a
defendant might reasonably be expected to back-off or to flee. However, where a
woman is attacked by her partner in her home, to require her to flee from that
attack is to require her to leave her home. Even at the time when a duty to retreat
was assumed, that duty did not arise where it would have entailed a retreat from
the home.44 Further, where the woman has children in the home, to require her
to flee from violent attack would be, in many cases, to require her to leave those
children with her attacker. These factors must weigh in the assessment of
whether her use of force was necessary in the circumstances as must the futility
or perceived futility of flight as anything other than a temporary measure. The
lack of adequate social welfare and low-cost housing45 and wide-spread percep-
tion of the police as hostile towards or at best apathetic in dealing with
40 This point is discussed below in relation to the proportionality requirement.

4, In Bird [1985] 1 WLR 816 the Court of Appeal overruled previous dicta to the contrary.
42 Palmer v R (Privy Council) [1971] A.C. 814, 831-2 per Lord Morris of Borth-y-Gest.
43 Bird (above, n 41, 820) quoting Smith & Hogan Criminal Law, 5th ed (1983), 327.
11 For a discussion of this see D. Lanham 'Defence of Property in the Criminal Law' [1966] Crim LR 368.
4s The sale of much of the council house stock, together with massive reductions in public sector house building,
has reduced the alternative accommodation available to women who wish to leave abusive partners. For a discussion
of the difficulties faced by battered women who seek permanent rehousing from local authorities see Joseph
Rowntree Foundation 'Findings: Local Authority Responses to Women and Children Escaping from Domestic
Violence' (Housing Research Findings No 85, April 1993). Even the short-term option of a refuge is one that is
under increasing threat as a result of spending cuts associated with central government controls on local
government spending.
'domestics', together with an often well-founded fear, of retaliation,46 prevent

many women from leaving their abusers. Even without trawling the murky
waters of the so-called 'battered woman syndrome'47 it is clear that, viewed from
the woman's perspective, her use of force might be the only way to escape an
escalating spiral of violence which she believes will end with her death.48
Where the defendant uses force in response to a perceived, rather than an
actual attack, she may still be entitled to plead self-defence. Lord Griffiths stated
in Beckford v R that 'a man about to be attacked does not have to wait for his
assailant to strike the first blow or fire the first shot; circumstances may justify a
pre-emptive strike'."4 In order to render a pre-emptive strike necessary, how-
ever, the defendant must, in the words of the Lord Justice General Lord
Normand in the Scottish case of Owens v HM Advocateso have 'believed that he
was in imminent danger', a requirement applied by the Northern Ireland Court
of Appeal in Devlin v Armstrong to uphold convictions arising out of the 'Battle
of the Bogside'. The defendant had claimed that her participation in rioting was
justified by her belief that, if the police entered the area, they would unlawfully
assault the people therein and damage their property. The Court of Appeal
declared that the danger she claimed to apprehend was not 'sufficiently specific
or imminent to justify the actions she took as measures of self-defence' given that
the police were at that time 'in the throes of containing a riot in the course of their
duty'.s' The so-called imminence requirement might appear to deny self-defence
to a woman who uses force other than in expectation of an attack which she
believes is just about to occur, and is perhaps why many such killings are not
readily perceived as being by way of self-defence. In the leading case of Palmer v
R, however, Lord Morris laid down no inflexible rules about imminence but
simply stated that '[I]f the moment is one of crisis for someone in imminent
46 In 'Battered Women, Dead Husbands' 10: 1 Loy of LA Int & Comp LJ 1, 13 at note 53, S. Graffe cites the
German Bis der Tod Euch Scheide EMMA, January 1980 22, 'Ninety-nine out of 100 cases in which men beat, shot,
choked, stabbed or burned their mates to death, the woman was attempting to break out of the relationship'.
A. Browne's study of forty-two women from fifteen American states who were charged with the murder or
attempted murder of partners (When Battered Women Kill, 1987) discovered that many of them had previously left
their partners but had been followed and forced to return. Many had continued to be intimated long after leaving
and had found police protection ineffective. As a result they became convinced that they could not escape their
partners. Browne however records that their killings were not generally planned, but tended to be in response to an
attack of unprecedented severity after which the woman would finally use force to defend herself or her offspring.
'4 L. Walker The Battered Woman (1979) & Terrifying Love (1989) and the discussions thereof in M. Buda &
T. Butler 'The Battered Wife Syndrome: A Backdoor Assault on Domestic Violence', 23 Journal of Family Law
359. The so-called 'battered woman's defence' is discussed below.
4s J. Totman The Murderess: A Psychosocial Study of Criminal Homicide (1978) conducted a study of women
serving prison sentences in a Californian prison for killing their partners. 67 percent of the women said that they
killed their husbands to protect themselves and/or their children, generally believing that the incident that resulted
in their abuser's death was more severe or life-threatening than any that had preceded it. Browne's study (above,
n 46) contrasted forty-two battered women who did kill their abusive partners with 205 who did not. She could find
no psychological differences between the women, but found that the abusive partners of those women who killed
were generally more frequently intoxicated, more frequently abusive, more likely to have threatened to kill someone
other than themselves, more likely to have abused a child or children as well as their partners, and more frequently
and more seriously abusive towards their mates in a manner which more frequently included sexual assault. She
found that the women who killed saw the use of force as the only way they could protect themselves and/or their
children'.
49 Above, n 14, 144.
5" [19461 SC(J) 119 at 125.
5' [19711 NI 13 per Lord MacDermott CJ at 33.
danger he may have to avert the danger by some instant reaction.
all over and no sort of peril remains then the employment of forc
of revenge or punishment or by way of paying off an old scor
aggression. There may no longer be any link with a necessity o
passage, far from requiring that the defendant be under threat of
before being allowed to use force in self-defence, makes it clear that the
proximity of the expected attack is merely a factor to be considered in determin-
ing whether the defendant's use of force was necessary, or whether it was 'by way
of revenge'.
Where the defendant killed in the context of a one-time adversarial encounter,
a strict view of imminence is appropriate as, unless the attack is actually under
way or is almost immediately threatened, the defendant will have alternatives to
the use of force. He may flee or contact the police or others for assistance, in
which case the use of force would generally be unnecessary and therefore
unreasonable. There are other cases, however, where the use of force by the
defendant may be manifestly reasonable despite the absence of an immediate
physical threat. Where, for example, someone is held hostage by terrorists who
let him know, expressly or by implication, that he is to be seriously injured or
killed within the next few days, it is unlikely that the courts would require him to
wait until a weapon was actually raised to him before they allowed him to use
violence against his captors.53 The danger which could be seen as imminent here,
if imminence is required,54 is the second-order danger of the hostage finding
himself in a position where the threat of later violence will become inescapable,
rather than the first-order danger of physical violence itself. He cannot be
entirely sure that his captors will carry out their threat to kill him, but neither can
he reasonably be expected to postpone his use of force until a time when he will
most probably not be able to defend himself, given the numerical superiority of
his captors or the fact that they are armed and he is not. His only feasible method
of escape from the threatened danger might be to seize an opportunity to attack
while his captor is asleep or otherwise vulnerable. The fact that his captors have
put him in the situation where he has to make unpalatable decisions to avert what
he considers to be the threat to his life or safety must mean that the role of the
imminence requirement (to exclude, so far as possible, the use of force against an
attack which may never occur, or from which non-violent methods of escape
52 Above, n 42, 831-2.

53 This question was raised by Wilson J in Lavallee (note 17, 889). P. Robinson 2 Criminal Law Defences (1984)
56-7 uses the example of a sinking ship to illustrate the potential irrationality of a rigid application of the imminence
requirement: if the sailors know, at a time when they are close to shore, that the ship will sink in a few days because
it has developed a slow, steady leak, must they wait until the danger is 'imminent' and they are far from shore before
they become justified in committing mutiny in order to save their own lives? Or may they take the opportunity to
avoid certain danger when they are in a better position, being close to shore, to escape with their lives?
5 Clause 47 of the Draft Criminal Code states that '[a] person does not commit an offence by using such force as,
in the circumstances which exist or which he believes to exist, is immediately necessary and reasonable-(c) to
protect himself or any other person from unlawful force or unlawful injury'. The reinterpretation of 'imminence' as
immediacy appears to tighten the defence, but the contextualization of immediacy in the 'circumstances' actual or
perceived might facilitate consideration of the wider circumstances including the defendant's fears that failure to
seize an opportunity would immediately place him in danger of a later, inescapable attack.
might become available) is outweighed by the unayailability to him of any
realistic options besides submission and resistance. The more commonly avail-
able alternatives of flight and seeking out assistance have been denied him by the
actions of his prospective attacker. To allow the attacker to profit from their
unavailability by having his captive forced to wait obligingly until he is attacked
or just about to be attacked before himself engaging in physical resistance, would
be Kafkaesque.
A strict view of 'imminence', then, should not, on the authority of Palmer,
cause an otherwise arguable plea of self-defence to be jettisoned where there is no
realistic alternative open to the person threatened. The lack of immediate
physical peril would not prevent a hostage's use of force from being necessary
and therefore potentially reasonable, although the requirement of proportion-
ality would still have to be satisfied. The same is true of a battered woman who
believes55 that an attack will (or may56) occur before she is able to effectively
escape, and that she must therefore strike while her prospective attacker is made
vulnerable by sleep or alcohol. She, like the hostage, is caught within a
potentially life-threatening situation. Just as the hostage might take the view that
a desperate bid for freedom might result in his death rather than his freedom, so
too might the battered woman believe, and believe reasonably, that any attempt
to escape would carry with it the risk of death rather than the promise of
freedom. The possibilities of seeking police protection or of simple flight may
not constitute adequate alternatives to the use of force as she may know from
experience that either measure is simply a temporary one. Many abusive men use
the threat of even greater violence to prevent their partners leaving the abuse,
and one recognized aspect of continued abuse is the perception it creates in the
abused person of the abuser as all-powerful, inescapable. The difficulties of
using expert evidence of the psychological effects of abuse are discussed below,
but even without such evidence the courts have accepted that a defendant's
failure to seek police protection in the context of duress will not necessarily
prevent her from relying on the defence. In Hudson & Taylor Widgery LJ stated
that the jury should 'have regard to his age and circumstances, and to any risks to
him which may be involved in the course of action relied upon' in deciding
whether such an opportunity was reasonably open to the defendant 'so as to
"5 A threat may be implied rather than express. Where an abuser has in the past behaved in a particular way
before launching an attack, a repetition of this behaviour might in itself, although innocent to the onlooker, amount
to an implied threat to the victim of previous attacks. E. Schneider 'Equal Rights to Trial for Women: Sex Bias in
the Law of Self-defense' (1980) 15 Harv Civil Rights--Civil Liberties LR 623, 634 states that 'battered women have
learned to be attentive to signs of escalating violence and to modify their behaviour in response to these danger
signals in order to pacify violent husbands. Subtle motions or threats that might not signify danger to an outsider or
to the trier of fact acquire added meaning for a battered woman whose survival depends on an intimate knowledge
of her assailant'. Beckford (above, n 14) further establishes that, where a woman believed at the time when she used
force that she was under imminent threat of attack by her partner, the fact that he might never have launched such
an attack, or might have launched it at a later stage, is not relevant to the question of reasonableness.
S6 How certain must our hostage be that he will not be rescued before his captors kill or seriously injure him? The
fact that the shipwrecked sailors in Dudley & Stephens (1884) 14 QBD 273 could not know that it was necessary for
them to eat their young companion, in the sense that they could not know that they would not be rescued anyway
before they starved to death, is not conclusive here as he was not the source of the threat to them, unlike the captors,
and so could not be taken to have forfeited any of his rights under the law.
render the threat ineffective as a defence'.57 Applying thi
context of self-defence, the jury should have regard to any
defendant by her abuser. That such threats are frequently no
by the studies carried out by Angela Browne and others,58 a
commonplace news reports of men seeking out and continuin
killing estranged partners.59 Even in the face of increased p
treat the issue of 'domestic violence' as a crime, the death ofV
the domestic violence unit of Stoke Newington police station
the absence of any guarantees.60
If the jury is satisfied that the defendant's use of force may h
in the circumstances as they appeared to her to exist, they sh
whether her response was proportionate to the extent of the th
to her to exist. The proportionality requirement61 has devel
concerning male defendants, and is generally taken to dema
attack and defence. This is justifiable where the adversaries
strength, but may operate unfairly where the attacker is ma
female, particularly where she knows from experience that u
by her to an unarmed attack by him may result in an escalat
Where the force used by the defendant is judged excessive in rel
threatened, neither section 3 of the Criminal Law Act nor the common law will
assist her and she is liable to be convicted of murder in the absence of any other
defence. The harshness of this rule is however mitigated in practice by the
recognition that 'a person defending himself cannot weigh to a nicety the exact
measure of his necessary defensive action'. While the defendant's belief in the
level of force required is not conclusive of the question, the jury should be
instructed to treat as 'the most potent evidence' of the reasonableness of such
force the fact that 'in a moment of unexpected anguish a person attacked had
done only what he honestly and instinctively thought was necessary'.62 Although
Lord Morris's reference to 'a moment of unexpected anguish' appears to
privilege the traditional concept of self-defence in the context of a sudden, one-
off attack, its importance lies in the recognition that the objective question of
whether the defendant's use of force was reasonable must be assessed in the light
5' [197112 QB 202, 207. The Court of Appeal refused to deny the defendants the defence of duress on the ground
that the threat to them was not immediate.
58 Above, nn 46 & 48.
"9 See for example the report of Newton, The Times 31 October 1992. The defendant, whose wife had fled him
after twenty years of abuse at his hands, tracked her down to the refuge where she was hiding, broke in and stabbed
her at least twelve times, killing her. He was convicted of manslaughter on the basis of diminished responsibility.
6o The Independent 3 March 1992. Patel was stabbed twelve times with a lock knife by her husband with whom
she was attempting a reconciliation after having left him as a result of his abuse.
6' The requirement of proportionality is discussed by Ashworth (above nn, 30 & 34) who quotes the Report of
the 1879 Royal Commission on the Law Relating to Indictable Offences. The Report observed that a law which
required only that the use of force by the defendant was necessary 'would justify every weak lad whose hair was
about to be pulled by a stronger one in shooting the bully if he could not otherwise prevent the assault' (cited 1975 at
296-7). In Palmer, (above, n 42, 831) too, Lord Morris stated that 'Some attacks may be serious and dangerous.
Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of
retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts
someone in immediate peril then immediate defensive action may be necessary'.
62 Per Lord Morris in Palmer ibid, 832.
of her circumstances, a recognition which is as valuable to the woman whose
reaction is the product of months or years spent under a Damoclean sword of
threatened violence, as it is to the man whose ability to rationally assess the
measure of response required to a sudden attack is adversely affected by the
unexpected nature of that attack.
In Wanrow63 the Washington Supreme Court recognized that any instruction
limiting self-defence to the use of equal force denied women defendants the
equal protection of the law. The trial judge refused the defendant's self-defence
plea on the ground that she had used unequal force in the shape of a gun against
an unarmed man. The words of the Supreme Court bear repetition:
The impression created [by the trial judge] that a 5'4" woman with a cast on her leg and
using a crutch must, under the law, somehow repel a 6'2" intoxicated man without
employing weapons in her defence, unless the jury finds her determination of the degree
of danger to be objectively reasonable-constitutes a separate and distinct misstatement of
the law and, in the context of this case, violates the respondent's right to equal protection
of the law'."
The decision marked a turning point in the US in its recognition that reasonable-
ness must be assessed in the context of the defendant's own circumstances, and
that therefore factors such as the disparate physical size, strength and training of
defendant and deceased would have a bearing on the reasonableness of the force
used by her.65 This individualized approach to the question of reasonableness
allows proper consideration of the circumstances under which women kill, and is
necessary to counterbalance the bias against women defendants which results
from the paradigmatically male structure of traditional self-defence. The object
is not to give women or battered women any special consideration, as might be
appropriate in particular cases in an excuse-based defence, but rather to
recognize and compensate for existing bias.
Pleading Self-Defence
Given the current ideal model of self-defence, it is clear that attention has to be
drawn to its inequitable application to women who kill to protect themselves, in
order that they may successfully plead self-defence in response to murder
charges. In the absence of challenges to the common assumptions about when
force is necessary in response to actual or threatened violence, and about the level
of force which a woman might reasonably use against an unarmed man, such
women will be unable to successfully plead self-defence. Judicial resistance to
acquitting women in these circumstances is evident from US cases such as State
v Stewart where the court ruled that, as a matter of law, the defendant could not
plead self-defence when she killed her sleeping husband, taking the view that to
63 88 Wash 2d 221.
6 Ibid, 240.
6" The court in Lavallee (above, n 17) explicitly recognized that disparate size and training could also be taken
into account in assessing the reasonableness of a pre-emptive strike by the defendant.
allow such a plea would be to 'leap into the abyss of anarchy
made by UK judges which have illustrated an apparently wilf
realities of private violence;67 and from the Australian developm
defence of provocation to cover typical cases of battered w
Tolmie argues that the reluctance of the courts to categorize
killings as self-defence is rooted partly in the ideology of family
To recognise that women may be trapped and justified in fighting for

most intimate relationship validates many women's experiences in a
the ideology of familiness. The characterisation of the family as p
instead to have operated to create a sphere in which women are i
invisible and placed beyond the protection of the legal system. Rec
women find the family life threatening also necessitates examining d
and attitudes by which violence against women is institutionalise
society."
This reluctance is all the more understandable in view of the fact that, in the
words of Wilson J in Lavallee:
Far from protecting women from it the law historically sanctioned the abuse of women
within marriage as an aspect of the husband's ownership of his wife and his 'right' to
chastise her. One need only recall the centuries old law that a man is entitled to beat his
wife with a stick 'no thicker than his thumb'... One consequence of this attitude was that
'wife battering' was rarely spoken of, rarely reported, rarely prosecuted, and even more
rarely punished. Long after society abandoned its formal approval of spousal abuse
tolerance of it continued and continues in some circles to this day.69
It was not until 1991 that the English Courts, arguably contrary to the intention
of legislation passed as recently as 1976, removed husbands' freedom to rape
their wives,70 and the financial dependency historically forced upon women by
their husbands' automatic ownership of their goods still finds its existence in
women's loss of entitlement upon co-habitation or marriage to most social
security benefits. It is therefore essential, where women kill in response to a
perceived threat from an abusive partner to their life or the lives of their
children, that juries are made aware of the circumstances of the case, including
the history of violence and its effects on the woman's perceptions of the threat of
violence, as well as to the effect of the relative disadvantages of many women in
" Above, n 16, 648. In the UK a direction along these lines would give rise to an appeal. In Attorney-Generalfor
Northern Ireland's Reference [1977] AC 105, 137 Lord Diplock stated that 'What amount of force is "reasonable in
the circumstances" ... is, in my view, always a question for the jury in a jury trial, never a "point of law" for the
judge'. In Cousins (above, n 33), too, on a plea relating to the use of pre-emptive force in self-defence, the Court of
Appeal overturned the defendant's conviction on the ground that the trial judge had refused to leave the defence to
the jury given the lack of 'immediate jepardy' to the defendant.
I6 See the discussion of Thornton. Edwards (above, n 4) also reports the statement of Lord Dunpark in the
unreported case of Greig, HM Advocate v Greig that 'there is evidence before you that the deceased was a bully, that
he assaulted his wife from time to time and that he made her life a misery. The remedy of divorce or judicial
separation is available to end this torment'.
68 Above, n 4, 66.
SAbove, n 17, 872.
T0 In R v R (above, n 7) the House of Lords ruled that the word 'unlawful' in s I of the Sexual Offences Act 1976
did not restrict the prohibition against rape to men who were not married to the woman concerned.
terms of passive socialization and physical size, strength and training. This
approach would not afford women defendants favourable legal treatment; it
would, rather, go some way to addressing the prejudice against them that is built
into the system by virtue of its development through typically male cases of self-
defence. In the context of self-defence, then, the male standards of necessity and
proportionality, together with the current failure adequately to address the
reality of extreme violence under which many women exist, must be recognized
and compensated for in the application of the self-defence standard to battered
women who kill.7'
The decision of the Court of Appeal in Ahluwalia establishes that battered
women may be able to adduce expert evidence of the psychiatric effects of
continued abuse, but a successful plea of self defence requires the recognition
that a battered woman's perceptions of danger may be affected by her situation,
rather than that that situation has rendered her psychiatrically abnormal. The
difficulty lies in the refusal of the UK courts, following Turner,72 to admit expert
psychiatric evidence relating to defendants who were not suffering from an
abnormal mental condition at the time of the alleged offence. In Turner, Lawton
LJ stated that 'If on the proven facts a judge or jury can form their own
conclusion, then the opinion of an expert is unnecessary. ... The fact that an
expert witness has impressive qualifications does not by that fact alone make his
opinion on matters of human nature and behaviour within the limits of normality
any more helpful than that of the jurors themselves; but there is a danger that
they may think it does'. The principle in Turner was applied to expert
psychological evidence in Neeson & Ors, where the trial judge refused to admit
evidence of the effects of mob hysteria on human behaviour (the defendants were
charged with a number of offences arising out of the killing of two British Army
officers at the funeral of an IRA man who had himself been assassinated at an
earlier funeral). McCullom J ruled that the evidence, which was intended to
'explain the behaviour that might be engaged in by, or reactions that might occur
in, unusual situations' was inadmissible on the grounds that the jury were
capable of forming their own conclusions 'about matters which are part of the
sum of human experience and knowledge and are readily recognizable by
ordinary people'.73
If the reactions of a funeral crowd driven towards at speed several days after
the person they had assembled to bury had himself been assassinated at another
funeral is seen as being 'part of the sum of human experience and knowledge', it
is unlikely that a court would accept that the same is not true of the reactions of a
battered woman to the use or threat of physical force. Short of claiming that the
71 The current prejudices in fact do not operate only against battered women but, in so far as they ignore the
disparate physical size, strength and training of women and men, together with the fact that women are socialized
into believing (generally accurately) that they are incapable of resisting even an unarmed man without some kind of
weapon, they reduce the chances of any woman successfully pleading self-defence.
72 [1975] QB 834 at 841.
" (1990) Belfast Crown Court, unreported. For a discussion of this case and of the admissibility of expert
psychiatric evidence generally, see Mackay & Colman 'Excluding Expert Evidence: a Tale of Ordinary Folk &
Common Experience' [1991] Crim LR 800.
battering has produced psychiatric abnormality sufficient to a
ished responsibility under section 2 of the Homicide Act, it i
defence counsel could persuade the courts that expert evidence
such abuse has anything to add to jurors' understanding of a
tions of danger and the reasonableness of her response to it. Further, an
examination of the US experience calls into doubt the potential value of such
evidence even if it were to be deemed admissible by the UK courts in an
extension of Ahluwalia.
Early US theorists such as Elizabeth Schneider argued that evidence of the
psychological effects of repeated assaults could be utilized, together with lay
evidence about the history of defendant and deceased, in order to combat the
prejudice inherent in the traditionally male model of self-defence, to 'equalize
the positions of male and female defendants by recognizing their differences' and
to allow the question of reasonableness to be assessed in the light of all the
circumstances relevant to the defendant." In the event, however, decisions about
whether or not to admit such evidence have often been based on the courts'
assessment of the reasonableness of the defendant's actions, testimony ofte
being excluded in the non-traditional confrontation cases75 on the basis that t
battered woman's behaviour was unreasonable. In cases where the battered
woman's act of self-defence took place in the context of actual physical asault, t
US courts have admitted expert evidence of the effects of prolonged abu
'apparently because they doubt the reasonableness of a battered woma
perception of danger'.76 Where such evidence has been admitted it has frequent
been used to construct a stereotypical battered woman, rather than to counter t
male 'perceptions of danger, immediacy and harm [which] inform the perceptio
of what constitutes a reasonable physical response' and to 'explain why a battere
woman might reasonably perceive danger, use a deadly weapon, or fear bod
harm under circumstances in which a man or non-battered woman might no
When women failed to fit the stereotype (where for example they had fou
back before) the evidence would often then be put to one side and their con
judged against the standard of the 'reasonable man' without consideration of
17 E. Schneider (above, n 55, 623).

7s In People v White [1980] 90 Ill App 3d 1067 the defendant shot her husband after an argument during wh
had threatened to whip her. She armed herself and shot him as he moved rapidly towards her. Expert ev
relating to the credibility of her great fear of bodily harm at that time was excluded, and its exclusion upheld
appellate court, on the ground that it was irrelevant to her perception of what happened at the time she kille
husband. In State v Thomas [1980] 66 Ohio St 2d 518, too, the Ohio Supreme Court affirmed the exclusio
evidence of the effects of three years of battering on a woman who shot her partner during an argument o
ground that the jury could understand and decide the self-defence argument without it-discussed by C
(above, n 37, 140-141).
76 Ibid, 138-139. See Smith v State [1981] 247 Ga 612, where the defendant shot her partner when he preve
her leaving her apartment immediately after he kicked, choked and beat her, Strong v State [1983] 251 Ga 540
the defendant stabbed her husband after he knifed her, and State v Borders [1983] 433 So 2d, 1325 whe
defendant stabbed her husband after he punched and kicked her and threw her against the wall-discuss
Crocker ibid, 142-3.
7t Ibid, 127. In State v Kelly 33 Wash App 541, for example, the Washington Appeals Court took the view t
the expert evidence which was admitted as to the effects of prolonged abuse was relevant, not to the reasonab
of the defendant's actions, (taking the view that the jury were competent to assess this for themselves) but
previous inability to leave the relationship.
fact that a woman's, especially a battered woman's, perceptions of danger might
reasonably differ from those of a man.78
The focus on whether a defendant conforms or fails to conform to the
stereotypical model of the 'battered woman' is perhaps inevitable when reliance
is placed on an expert's evidence of the effects of such abuse. In any case, the
usefulness of any such evidence is questionable given the fact that the defendant,
by virtue of having killed her abuser, has behaved in contradiction to the
stereotypical battered woman's characteristic passivity. Even if such evidence
were to be admitted by the UK courts, it might serve only to distract jurors'
attention from the question of whether or not the defendant's use of violence in
the immediate situation was reasonable given her size, strength and perception of
danger, and cause them instead to base their decision on their assessment of the
reasonableness of the defendant's failure to leave the abuser, a failure for which
she is not officially on trial. Although someone who seeks out violence delibera-
tely79 will not be able to plead self-defence if she later uses force to defend herself
from it, English law creates no duty in the defendant to avoid places where she
may lawfully be,80 and she may arm herself against an anticipated attack.8s If a
defendant will not be prevented from pleading self-defence where he walks down
a street where he knows he may be attacked,82 or makes and stores petrol bombs
in anticipation of an attack on his shop, it is inappropriate that a woman's failure
to leave her own home should be used to cast doubt on her plea of self-defence.
This was explicitly recognized by the Supreme Court of Canada in Lavallee
where Wilson J, delivering the unanimous decision of that court, stated:
it is not for the jury to pass judgement on the fact that an accused battered woman stayed
in the relationship. Still less is it entitled to conclude that she forfeited her right to self-
defence for having done so ... the traditional self-defence doctrine does not require a
person to retreat from her home instead of defending herself. A man's home may be his
castle but it is also the woman's home even if it seems to her more like a prison in the
circumstances. If, after hearing the evidence ... the jury is satisfied that the accused had a
[reasonable] apprehension of death or grievous bodily harm and felt incapable of escape, it
must ask itself what the 'reasonable person' would do in such a situation.8"
"' A recent example of this is to be found in the decision of the US Court of Appeals (8th Circuit) in US v
Whiretail 956 F 2d 857. The court upheld a (2nd degree) murder conviction where the defendant's contention that
she was suffering from 'battered-woman syndrome' and that she had killed her abusive partner in self-defence had
been rebutted by evidence that she herself had been violent in the past and that she was not, therefore, covered by
the 'battered-woman defense'.
" Browne ([1973] NI 96.
so Field [1972] Crim LR 435.
" Attorney General's Reference (No 2 of 1983) [1984] QB 456, where the Court of Appeal approved the acquittal
on explosives charges of a man who made and stored petrol bombs to defend himself and his shop after the latter
had been attacked and damaged during riots. His defence, on a charge of making an explosive substance in such
circumstances as to give rise to a reasonable suspicion that he had not made it for a lawful object, was that his object
in making the bombs was lawful under s 3 Criminal Law Act. Thus a woman who prepares herself in readiness for
an attack by an abusive spouse will not exclude herself from pleading private defence.
82 Field (above, n 80).
83 Above, n 17, 888-889 (citations omitted). Under English law the apprehension of force would not have to be
reasonable in order to afford the defendant the defence (above, n 14). This approach may be favourably contrasted
with that Roskill LJ who stated the view in Owen [1972] Crim LR 324, discussed in Ashworth (above, n 12), that a
woman who failed to leave a violent marriage had willingly exposed herself to violence and that therefore she bore
some blame for that violence.
Where a battered woman reacts to an actual attack by her abuser,
given the opportunity to express her perception of anticipated dan
of the deceased's previous behaviour towards her, it is questio
expert opinion on the psychological effects of abuse would be o
to the defence. This is all the more true in view of the fact that a mistaken belief
in the existence of a threat need not be reasonable in the UK in order to found a
claim of self-defence. If the defendant creates some doubt in the minds of the
jurors that she believed herself to be under threat of imminent attack, the fact
that a reasonable onlooker would not have realized the significance of a
movement or threat from the deceased that the defendant knew had preceded
serious violence in the past, should have no bearing on their assessment of her
actions. The test of whether her response to that perceived attack was reasonable
is an objective question only to the extent that her views of the necessity for
force, and of the level of force required in response to the perceived attack, are
not conclusive, but are nevertheless, according to Lord Morris in Palmer, 'the
most potent evidence' of the reasonableness of such force."
Where the defendant does not claim that she foresaw violence as an immediate
possibility, it will still be possible in many cases, even in the absence of expert
evidence of 'learned helplessness'85 to explain why her use of force was neverthe-
less necessary. In many of the US cases the defendant had on one or more
previous occasions attempted to leave her partner, but had been sought out and
forced to return by his threats of further harm to herself or her children if she did
not. There is no reason to suppose that the situation would be found to be very
different here. In other cases the attack which ended with the death of the abuser
will have occurred after the defendant has left the shared home or involved the
police86 or both, in which case the threatening presence of the abuser will itself
constitute evidence that action beyond flight or police involvement is necessary
effectively to safeguard her life and safety, or the lives and safety of her children.
In yet other cases the defendant will have been prevented from leaving by the
knowledge or belief that her abuser will track her down and kill her if she does.
The need for secrecy as to the whereabouts of women's refuges illustrates the
dangers experienced by battered women who leave, and it is virtually impossible
for women to disappear completely from their abusers.87 Many will have
common acquaintances or friends, and the situation is not assisted by the
potential leverage given to abusing men by the emphasis of the 1989 Children
Act on dual parenting even after divorce.88 Women are pursued and attacked
s4 Above, n 42, 832.

85 Crocker (above, n 37, 128) reports that repeated physical abuse makes the person abused feel that 'the batterer
is omnipotent, that no one can help her, and thus she limits the number of responses she feels possible or safe to
make'.
86 Even where the police do charge the abuser (an increasingly frequent occurrence), he will frequently be
released on bail back into the family home where the cycle of reconcilisation, tension and attack continues,
exacerbated by the woman's perceived betrayal.
87 Above, n 59.
' See J. Roche 'The Children Act 1989: Once a Parent Always a Parent?' [1991]Jof Soc Wel & Fam L 345, 357-
9 for a critique of the legislation.
sometimes long after they leave their abusive partner, having spent years in fear
of retaliation, never fully setting down new roots but attempting to remain
always one step ahead of their pursuer. Police action is ineffective against such
determined pursuit: a court order cannot physically restrain a man from the
exercise of deadly force and, once broken, it may be too late for the woman to
complain of the breach.
Conclusion
The application of self-defence to many battered women who kill does not
involve any alteration or extension of the defence, rather a rethinking of the way
in which the requirement that the defendant's use of force be reasonable is
applied to cases other than those involving the traditional model of a one-off
adversarial meeting between strangers. Self-defence is frequently regarded as a
justificatory defence, and it is this aspect of it perhaps which underlies the unease
which is expressed about its application in cases other than those in which it has
traditionally been accepted. One judge felt obliged to warn, while directing the
acquittal of a woman who killed her rapist while defending herself from further
attack, that his ruling was 'not to be regarded in any way as a charter for ... rape
victims, to kill their assailants'." J. C. Smith too, while arguing that the analysis
of duress in terms of justification leads to the conviction of defendants who might
be acquitted if duress was viewed as an excuse, states nevertheless that 'even if it
is true that the remedies available are inadequate, to hold that the deliberate
killing of a sleeping or unconscious man is justified or even excused would be, in
effect, to give his victim the right to execute him; and that, surely, cannot be
right'."9 To acquit a defendant who has killed, however, is not, in the words of
Lord Edmund-Davies in Lynch, 'to express approval of the action of the accused
but only to declare that it does not merit condemnation and punishment'.91 Even
if self-defence were properly categorized as a justification, a resulting acquittal
amounts to an admission by the court that the defendant's use of force was the
lesser of two evils. In Lavallee Wilson J expressed the view that the defendant
had had to choose between using force against her partner when he was
vulnarable or accepting 'murder by installment' by postponing any use of force
until an attack upon her was already under way. 'Society gains nothing' from
requiring such a delay 'except perhaps the additional risk that the battered
woman will herself be killed'."2
In any case, the acceptance by the Privy Council in Beckford that the threat to
the defendant, and the reasonableness of her reaction to it, must be judged on the
facts as she saw them makes impossible any analysis of self-defence purely in
6* Judge Hazan in Clugstone, The Times October 1987. The decision is discussed in J. C. Smith Justification and
Excuse in the Criminal Law, 109.
9 Ibid, 117.
9' (1975] AC 643, 716.
' Adopting the reasoning of M. Willoughby 'Rendering Each Woman Her Due: Can a Battered Woman Claim
Self-defence When She Kills Her Sleeping Batterer?' (1989) 38 Kan LR 170, 184.
terms of justification. Further, as Marianne Giles points out,9
defendant's perception of the facts is correct, the approach of
in Palmer, and of the Court of Appeal in Shannon94 and W
emphasized her honest and instinctive belief in the necessity for t
and in the level of force required as to render the test of reaso
subjective. The House of Lords established in Camplin that th
of a defendant's reaction to provocation could not be determ
consideration of her characteristics, and in Ahluwalia Lord Tayl
the reasonableness of the defendant's reactions fell to be consid
of the 'history of [her] . . . marriage, the misconduct and ill-t
appellant by her husband'. So, too, in the context of self-defence,
ness of the defendant's conduct cannot be assessed in a vacuu
assessment of whether she believed that she was under threat of attack and of the
seriousness of an anticipated attack will clearly be influenced by evidence of the
abuser's past conduct. Many women experience abuse as a cyclical occurrence
where a period of increasing tension is followed by physical abuse which is in
turn followed by remorse on the part of the abuser.96 A battered woman might
anticipate an impending attack from signals which have in the past marked the
transition from the period of tension-building to the battering phase. Under such
circumstances, evidence of the cyclical pattern as it has affected the defendant
herself, rather than generalized expert evidence about the nature of woman-
battering, can enable the jury to appreciate her apprehension of danger even
where no threat is apparent to an onlooker. Equally, abuse often escalates in
seriousness between one battering episode and the next, and many women who
kill do so when they fear that they will be unable to survive the next episode.
Again, it is vital that jurors are made aware of the history in order that they may
understand the nature of the threat which the defendant feared. Even where a
woman kills a sleeping partner, evidence of her circumstances may allow a jury to
appreciate the absence of alternatives open to her, so that they may consider the
reasonableness of her actions as they might those of a hostage who sees no
alternative to the proactive use of force against a threat which may be rendered
insurmountable if he waits to be attacked.
Self-defence exists in order to allow citizens to take steps to protect themselves
where circumstances render it necessary for them so to do. Many battered
women are faced with no realistic alternative to the use of force against abusive
partners. The construction of the family as private and the resulting societal
blindness to violence within it, the power inequalities which result from men's
greater earning potential and the resulting economic dependency of many
women, the isolation of many women within their homes and their subsequent
alienation from formal and informal support structures, the unavailability of
93 M. Giles 'Self-Defence & Mistake: A Way Forward' (1990) 53 MLR 187.

"9 (1980) Cr App Rep 192.
95 [1987] 3 All ER 416.
96 For a discussion of the cyclical nature of much abuse, see Walker (above, n 47).
decent alternative accommodation for women who leave their abusers, the fear of
pursuit and greater injury or death; these factors render many women hostages of
domestic violence and make invisible any escape from that violence except by the
use of force. The way to prevent battered women killing is to provide them with
adequate alternative means of escape from violence, and perhaps then to
condemn those who choose to use violence instead. Such a course of action
would have the effect of saving the lives of battered women as well as those
their abusers. It is however a long-term solution, and one which requires th
commitment of Government rather than the law alone. In the meantime,
society's failure to protect women from violence within their homes must
brought to the fore by defence lawyers and taken into account by those who
task it is to allocate blame.

In Defence of Battered Women Who Kill

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In Defence of Battered Women Who Kill

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In Defence of Battered Women Who Kill

Author(s): Aileen McColgan

Over the last number of years the commonplace nature of p

* Lecturer in Law, King's College, London. I would like to express my thanks to t

40 This point is discussed below in relation to the proportionality requirement.

'domestics', together with an often well-founded fear, of retaliation,46 prevent

52 Above, n 42, 831-2.

To recognise that women may be trapped and justified in fighting for

17 E. Schneider (above, n 55, 623).

s4 Above, n 42, 832.

93 M. Giles 'Self-Defence & Mistake: A Way Forward' (1990) 53 MLR 187.

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