2003 The Daily Journal Corporation.
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August 19, 2003

'Battered Women's Syndrome' Perpetuates Harmful Stereotypes of Victims
By Nausheen Hassan

Laws in all 50 states recognize some version of battered women's syndrome, which purports to explain the psychology of battered women's behavior. The concept is important, but for years domestic violence experts have urged moving away from battered women's syndrome terminology. The U.S. Department of Justice issued a report in 1996 calling on advocates to do away with the term. Instead, they believe that the phrase "battering and its effects" better describes the true nature of abusive relationships. States are to be commended for enacting much-needed laws dealing with battering.

But is it asking too much to discard antiquated and counterproductive terminology? The problem with using the phrase battered women's syndrome is that it perpetuates stereotypes that harm victims of battering. Battered women's syndrome implies that an abused person must be a woman, that she must be "suffering" from a syndrome or disease that is curable, that she has pathological problems and that there is only one authentic version of how she is supposed to respond to the battering. Moreover, if a victim fails to meet these criteria, supposedly she doesn't suffer from battered women's syndrome. These assumptions are absurd. They castigate abuse victims as cuckoo even though battering and its effects can have serious physical, emotional, economic, psychological and social consequences.

The syndrome is not a mental disease. Instead, battering and its effects have a pervasive impact than can result in many different methods of coping with the abuse. The California legal system should lead the effort to address hopelessly outdated terminology. Our state paved the way on domestic-violence law, but the language is stuck in the distant past. Even People v. Humphrey, 13 Cal.4th 1073 (1996), confessed in a footnote that battered women's syndrome is a defective term. However, it continued using the term throughout the rest of the opinion.

The state Legislature has tried to address the problem, as well. California Evidence Code Section 1107, dealing with the admissibility of expert testimony on battered women's syndrome, was amended in 2000 to rename it the provision on "battered women's experiences." Was this a watershed moment in the history of domestic-violence legislation, making California a pioneer into the new millennium? Hardly. This amendment changed only the title, leaving the remaining battered woman syndrome wording in the statute intact.

Many agree that the term is bad. So why not get rid of it? Once the courts and lawmakers expressed their discontent with the outdated phrase, one would assume that later statutes or case opinions would have been affected. This, however, has not happened. Take California Penal Code Section 1473.5, for example. Enacted in 2002, the statute creates a new ground for submitting a petition for habeas corpus. Petitioners can submit the writ if they were convicted of murder for killing their abuser but were not allowed to present expert testimony on battered women's syndrome. Why was the term used in this Section? Because Evidence Code Section 1107 uses the phrase, despite the renaming amendment in 2000.

While the title of Section 1107 touts its new-and-improved terminology, the 2000 amendment had no effect on the wording of Penal Code Section 1473.5. Cases in the state courts also continue to use battered women's syndrome terminology, despite Humphrey. The administrative branch is equally ambivalent. The Board of Prison Terms, whose members are appointed by the governor and oversee parole for the state correctional system, conducts investigations into parole cases in which domestic violence may have played a role. The board uses the term battered women's syndrome for these investigations, even though it has acknowledged the phrase's inadequacy. It claims to continue using the term for convenience. In a July 25 press release, Gov. Gray Davis, announcing his support for SB 784, which extends the sunset clause of Penal Code Section 1473.5, described the recent habeas statute as allowing women to raise battered women's syndrome as a legal defense.

That Davis signed the bill is laudable. However, the ex-governor's press release unwittingly perpetuated one of the most damaging misconceptions about battering: So-called battered women's syndrome is a defense to murder. Battering is not a defense to murder. In fact, it isn't a defense to anything. However, evidence of battering is relevant for traditional defenses that have existed in our legal traditions for centuries. For example, self-defense is often raised to defend against murder charges. When a battered woman kills her abuser, very often she does it in self-defense. When expert testimony on battering and its effects is admitted into the murder trial, it helps the jury decide whether the defendant has met the requirements for acting in self-defense.

Expert testimony on battering can address different defenses, as well, in addition to performing other functions such as negating intent, rebutting prosecution theories, explaining why the battering victim behaved in a certain manner or buttressing the victim's credibility. To use self-defense as a defense, a defendant must demonstrate that her actions were committed out of an honest and reasonable fear of imminent harm. Expert testimony on battering and its effects is indispensable for showing that her fear meets both prongs of this test. Also, a juror may wonder why the battered woman did not leave the relationship if she felt threatened, rather than resorting to violence herself. An expert witness could explain that a battered woman faces even more danger immediately after she tries to flee the relationship.

The expert also could point out that, in the opposite scenario, in which the homicide is committed by the abuser against the battered woman, studies indicate that the batterer frequently escalates the level of violence against the victim in the days and weeks immediately before killing her. This type of expert information addresses whether the defendant's belief was both honest and reasonable. Thus, rather than being a new, separate defense, battering evidence is simply considered by judges and juries while evaluating traditional defenses or other key components of a case. When it comes to embracing a contemporary view of battering, California should be setting the trend for the rest of the nation. We have enacted groundbreaking legislation - Penal Code Section 1473.5 - that is unparalleled in its recognition of how crucial battering and its effects can be in evaluating criminal cases.

So far, we are the only state in the country to re-examine cases of abused individuals who were convicted of murder without the benefit of expert testimony on battering. The California Habeas Project, a collaboration of the California Women's Law Center, the University of Southern California Law School Post-Conviction Justice Project, and Free Battered Women (formerly the California Coalition for Battered Women in Prison), is working to implement this 2002 law. The state Supreme Court has an opportunity to address the terminology issue in an upcoming case and do away with the term battered woman syndrome. The court has granted review in People v. Brown, 2003 WL 190790, in which a battering issue will be addressed.

The court opinion easily could introduce a shift in the battering terminology that we need in this state. A few sentences is all that is required, explaining that in using "battering and its effects" the court refers to, at a minimum, the notions underlying what was formerly called battered women's syndrome.
Moreover, the court should stress that this shift embraces concepts integral to understanding domestic violence that previously have been excluded from the limiting, pathology-focused nature of battered women's syndrome terminology. Only then will replacing battered woman syndrome with battering and its effects truly make a practical difference in California law.

Nausheen Hassan
is the Audrey & Sydney Irmas Fellow at the California Women's Law Center in Los Angeles and the southern California coordinator of the Habeas Project.

Action Committee for Women in Prison
1249 N. Holliston
Pasadena, California 91104