Legal Defences for Battered Women who Kill: The Battered Woman Syndrome, Expert Testimony and Law Reform. by Juliette Casey. Submitted in satisfaction ofthe requirements for the degree ofPh.D in the University ofEdinburgh 1999. \ <, I certify that this thesis is entirely my own work and that no part ofit has been published previously in the form in which it is now presented. I dedicate this thesis to the memory ofEmma Humphreys. TABLE OF CONTENTS. Introduction 5 Part One 10 Cases for the Individualisation ofthe Reasonable Man in Provocation. .................. .. 10 Introduction 10 Chapter One ................................................................ .. 20 Interviews with Advocates ..................................................... .. 20 Introduction 20 The Advocates and their Responses . .. 21 Chapter Two................................................................ .. 38 Feminism and Law 38 Introduction 38 Part One: General Discussion ofFeminism 39 British Feminist Jurisprudence 39 American Feminist Jurisprudence 45 Part Two:Feminism, Honour and Provocation 52 Introduction 52 Honour and the Original Four Categories ofProvocation 53 The Man ofHonour, Anger as Outrage and Reason 58 The man ofHonour, Anger as Loss of SelfControl and Passion . .. 62 Feminism, Honour and Provocation in Mawgridge's Adultry Category 65 Feminism, Honour and Proportionality 67 Feminism, Honour and Reasonableness 69 Conclusion to Part One 74 Part Two 80 A Comparative Analysis ofEach ofthe Three Defences in Britain 80 Introduction 80 Chapter Three ............................................................... .. 81 SelfDefence ................................................................ .. 81 Introduction 81 The Law on SelfDefence in Scotland 85 Historical Introduction ........................................................ .. 85 The Modem Law on SelfDefence . .. 87 Imminent Danger 88 Duty to Retreat .............................................................. .. 92 Proportionality .............................................................. .. 94 The Law on SelfDefence in England ............................................ .. 101 Historical Introduction ....................................................... .. 101 The Modem Law on SelfDefence ". ............... .. 102 Imminent Danger 109 Duty to Retreat ............................................................. .. 112 Proportionality ............................................................. .. 113 Problems with SelfDefence and Certain Solutions 116 Chapter Four. .............................................................. .. 128 Diminished Responsibility .................................................... .. 128 Introduction 128 The Law on Diminished Responsiblity in Scotland 130 Historical Introduction ....................................................... .. 130 The Modem Law on Diminished Responsibility in Scotland. ......................... .. 139 The Law on Diminished Responsibility in England . .. 152 The Modem Law on Diminished Responsiblity in England. .......................... .. 152 Diminished Responsibility in Britain as a Solution to the Problems Posed by Battered Women who Kill 160 Chapter Five ............................................................... .. 164 Provocation 164 Introduction 164 The Law ofProvocation in Scotland 164 Provocation and SelfDefence 164 The Nature ofthe Provocation. ................................................ .. 168 Delay 175 Proportionality .. ........................................................... .. 183 The Law on Provocation in England 185 The Nature ofthe Provocation 187 Delay 190 Proportionality .......................... .. 199 The Reasonableness Test 201 Problems with Provocation in Britain and Certain Solutions .......................... .. 220 Part Three. ................................................................ .. 230 Battered Woman Syndrome and Provocation: A Skeleton Proposal for the Representation of Battered Women who Kill 230 Introduction 230 Chapter Six. ............................................................... .. 234 Battered Woman Syndrome and Substantive Law .................................. .. 234 The Syndrome 234 The United States Approach. .................................................. .. 254 The Canadian Approach 256 The Australian Approach ..................................................... .. 261 The British Approach ........................................................ .. 265 An Outline Proposal for the Representation ofBattered Women who Plead Provocation in Britain 268 An Assessment ofthe use ofBattered Woman Syndrome Evidence 280 Chapter Seven 290 Battered Woman Syndrome Evidence and the Law ofEvidence ....................... .. 290 Introduction 290 The Knowledge and Experience and Ultimate Issue Rules ofEvidence 291 The Jury's Knowledge and Experience. .......................................... .. 293 The Ultimate Issue 299 The Knowledge and Experience Rule ofEvidence 306 The Influence of Turner in England ............................................. .. 309 Normality and Abnormality 309 Personality Disorder and Personality in Lowery 314 Ordinary Experience 318 Turner and Battered Woman Syndrome Expert Testimony in Canada, The United States, Australia and Scotland 327 Conclusion 334 Bibliography. .............................................................. .. 340 Appendices. ............................................................... .. 357 ACKNOWLEDGEMENTS. The first person whom I would like to acknowledge is Professor Beverley Brown. As a mentor and friend she was largely responsible for making my early days in Edinburgh some ofthe most happy and intellectually rewarding of my life. For her kindness and support as well as the hours and hours of stimulating supervision which we had while she was in Edinburgh I will always be grateful. More recently, Professor Zenon Bankowski, Professor Sandy McCall Smith and Mr David Sheldon guided me through to submission. I would like to thank all three for their encouragement and support. I would also like to thank a number ofpeople for their sound advice at crucial stages in this thesis: Dr. Peter Young, Dr. Caitriona Carter and Elizabeth Kingdom. I am equally grateful to a number ofpeople who made life considerably more easy in the closing stages. The staff at the law library, in particular Mrs Crozier, and Crystal Webster from the computing support services who helped me with the technical side ofthings. Completing this thesis would not have been possible without the financial support which I received from a number of different sources. I would like to thank the Law Department, the British Federation of Women Graduates, the Clark Foundation for Legal Education, the President's Award and George More of More and Co. solicitors. I would also like to thank my part-time employers Lynne and Andrew for being so flexible and understanding. A vital aspect ofthis thesis comprises an empirical study into how advocates practising at the Bar in Scotland viewed cases involving battered women who kill. To those nineteen advocates whom I interviewed I would like to extend my deepest thanks. In particular, I would like to thank two advocates, Edgar Prais and Ruth Anderson for their help over and above the call ofduty. Equally vital was the time I spent with Dr. Mairead Tagg of Greater Easterhouse Women's Aid who helped me to navigate the psychological literature as to the effects of male violence on women. I am very grateful to her for her support and generosity. I would also like to thank Mark Stephens of Stephens Innocent Solicitors for affording me the opportunity to see how a case involving a battered woman who kills is dealt with in England. There is one group ofpeople whose support, understanding and humour was invaluable; those 1 friends with whom I shared the post-graduate office. In the early days there was Miriam Aziz, Henriette Piene, David Berry, Murray Earle, Nathalie Potin, Christophe Kervegant, Fotini Papoudakis, and Rachael Wadia while more recently Peggy Dwyer, Oddny Arnardottir, Stephanie Eaton, Anna Verges, Michael 0' Neil, Niamh Nic Shuibhne and Tom Takahashi all helped me at various different stages to keep my feet on the ground. So many people have come and gone throughout the course ofthis thesis. To those who remained constant throughout lowe an inexpressible debt. As ever, my family was a tremendous source ofstrength and support and I am grateful to them for willing me towards submission from afar. However, on daily basis it was David who remained steadfast during the highs and lows of the thesis. I thank him for his selflessness, patience and understanding which in no small way helped me to bring this particular chapter to an end. 2 ABSTRACT. Law's representation ofwomen has long been a source ofdebate among feminists. In this thesis, I engage with this debate on a number ofdifferent levels specifically in the context ofbattered women who kill. Although three defences are commonly canvassed, self defence, provocation and diminished responsibility, I limit my proposal for reform to the defence of provocation. My particular proposal involves looking at the possibility ofcombining expert testimony on the battered woman syndrome with the substantive elements ofthat defence in Britain. In part one I begin by setting the defence ofprovocation in its proper doctrinal framework. Thus, in the introduction I argue that provocation is properly conceptualised as a partial excuse. Using Fletcher's theory ofthe individualisation