This paper will focus on explaining why trying to categorize "Battered Woman Syndrome Cases" under one defense is not only simplistic, but naive and unjustified. The defenses available to battered women who kill should be specific to the circumstances of the case, as violence which occurs in an intimate and private sphere cannot be adequately understood unless it is analyzed in its specific context.
There is a clear difference between women who kill their abusers as a result of their psychological state, and those who do so by exercising their lawful right to self-defense. For this reason, it will concentrate on the distinctions between battered women who suffer from BWS and kill their abusers in non-confrontational situations, and battered women who do not suffer from BWS and kill in confrontational situations.
TABLE OF CONTENTS
CHAPTER 1
INTRODUCTION
CHAPTER 2
THE CURRENT LEGAL FRAMEWORK
Voluntary Manslaughter by Reason of Diminished Responsibility
Self-Defence
CHAPTER 3
NON-CONFRONTATIONAL CIRCUMSTANCES
Battered Woman Syndrome
BWS As A Medical Condition
Non-Confrontational Killings and Diminished Responsibility
CHAPTER 4
The Traditional Doctrine of Self-Defence
The Subjective Standard of Necessity
The Objective Standard of Reasonableness
CHAPTER 5
JUSTIFICATICATORY vs EXCUSATORY DEFENCES
Justificatory Defences
Excusatory Defences
CHAPTER 6
CONCLUSION
BIBLIOGRAPHY
Journal Articles
Books
UK Case Law
USA Case Law
Acts of Parliament
Online Newspaper Articles
Websites
Online Reports
‘Once battered women are allowed to speak, they will be able to tell their own stories. And to know a battered woman's story is to understand, without a doubt, why she has killed'
Dr. Lenore Walker
To all the women that have suffered at the hands of a man, or lost their lives at the hands of a man. You are not alone, and your struggles will be heard.
I would like to say a special thank you to my mother, who pushed me to become the strong woman that I am today. I love you.
CHAPTER 1 INTRODUCTION
The criminal courts have had trouble dealing with domestic abuse cases adequately.1 In 2017, 1.2 million2 women experienced domestic abuse in England and Wales, with two women being killed per week in England by an ex-partner/partner.3 As Harriet Harman MP explained in 2008, ‘86% of domestic homicides are committed by men, and the victims are their female partners.’4 However, what the courts are still learning to do, is deal with the flipside of domestic violence: cases regarding battered women who kill their abusers.
American psychologist Lenore Walker built the foundation of Battered Woman Syndrome (BWS) in response to the legal difficulties battered women faced in situations where they killed their abusers. Walker established BWS as a subcategory of PTSD, which seeks to explain the psychological state of women who have been abused by their intimate partner.5 According to Walker, battered women who kill are the ones who come out on the other side of domestic violence, ‘riding it’s spiraling cycle to one irrevocable, inevitable end.6 However, what Walker’s theory fails to address is the diverse nature of domestic violence, and how it affects each woman differently. By attempting to apply BWS to all victims of domestic violence, Walker only perpetuates stereotypes and portrays victims of abuse as ‘incapable of exercising reason and responsibility’.7
Academics tend to disagree on the most appropriate way to address BWS cases, with some advocating to justify battered women who kill on the grounds of self-defence8, and others excusing them under the partial defence of diminished responsibility.9 This paper will focus on explaining why trying to categorise BWS cases under one defence is not only simplistic, but naive and unjustified. The defences available to battered women who kill should be specific to the circumstances of the case, as violence which occurs in an intimate and private sphere cannot be adequately understood unless it is analysed in its specific context.10 There is a clear difference between women who kill their abusers as a result of their psychological state, and those who do so by exercising their lawful right to self-defence. For this reason, it will concentrate on the distinctions between (i) battered women who suffer from BWS and kill their abusers in non-confrontational situations, and (ii) battered women who do not suffer from BWS and kill in confrontational situations.
A battered woman who takes the time to wait for her husband to fall asleep, throw petrol on him and burn him alive11 (non-confrontational situation) should not be considered as factually similar as a woman who stabs her abuser during a violent attack12 (confrontational situation). Both these women are victims, and neither are ruthless killers.13 The term ‘battered woman’ will be used throughout this paper as a woman who has experienced domestic violence. This dissertation will focus specifically on two types of women: battered women who are suffering from BWS and kill their abusers in non-confrontational situations; and battered women not suffering from BWS, who kill their abusers in confrontational situations. While this paper acknowledges the complex realities of battered women and does not assume that all women fit in an either-or category, the purpose of this dissertation is to focus on the two specific situations expressed above.
The non-confrontational situations will be defined throughout this paper as circumstances where a battered woman, after having suffered years of psychological and/or physical trauma, kills her abuser when they are vulnerable (for example, asleep or intoxicated) and are no threat to the battered woman at that particular time. These scenarios have been described as ‘morally perplexing’14, as we can be easily tempted to argue that a battered woman is justified in killing her abuser. Some academics have attempted to argue this justification through the theory of forfeiture, maintaining that ‘a person, by his willing, ongoing, egregious conduct may forfeit his right to life’.15 However, to justify a battered woman who kills her husbands in a non-confrontational circumstances ‘unduly expands the lawful use of deadly force’ and contradicts ‘our belief in the general sanctity of human life’.16 For these reasons, this paper will argue that non-confrontational attacks should be approached through voluntary manslaughter, and partially excuse battered women on the grounds of defence of diminished responsibility.17 The history of extensive trauma is incredibly important in regards of both psychological and legal aspects. As evidence of the importance of battered women’s psychological state, this paper will refer to Pierre Janet’s ‘dissociation theory’18, which focuses on patients with previous traumatic experiences, as well as Walker’s BWS. The focus will be drawn to these theories to review the psychological composition of women who have suffered from domestic abuse. The aim of this will be to argue that a battered woman suffering from BWS does not have the criminal responsibility needed to satisfy a murder conviction.
On the other hand, confrontational attacks will be depicted as scenarios where a battered woman, in the midst of a violent row with her abuser, kills him through actions of self-defence. Although there has been a rise in academic literature advocating for self-defence in battered women cases, it has not been readily available in law. This is mostly due to the ‘reasonableness of force’19 requirement, as well as the male standard the defence sets. This paper will therefore explain why selfdefence should be openly available to battered women cases in confrontational situations, with a specific a focus on why force is reasonable in regard to the usage of weapons, and why the current ‘reasonable person test’ is biased towards male defendants.
In order to achieve a well-rounded and in-depth examination of the law regarding battered women, this paper will engage mainly in a combination of doctrinal and interdisciplinary methodology. It will engage not only in the existing law, but also the socio-political and psychological conditions that partake in the construction of legal principles. It will also engage in a comparative analysis by looking at how the American legal system has aimed to tackle cases regarding battered women who kill.
Chapter 2 will begin by identifying the current law of diminished responsibility and self-defence, and how it has been applied to cases of battered and battered women in the past. Chapter 3 will evaluate Walker’s BWS and assess its appropriateness in cases of non- confrontational killings. Chapter 4 will instead examine how the law of self-defence has failed battered women in the past and explore possible avenues to rectify this. Finally, Chapter 5 will argue that the distinctions between confrontational and non-confrontational circumstances are grounded in the theories of defences. To achieve this, it will assess the differences between diminished responsibility and self-defence on the grounds of justificatory and excusatory defence theories.
CHAPTER 2
THE CURRENT LEGAL FRAMEWORK
To adequately analyse the defences available to battered women, and consequently establish the most accurate, we must first take a look at the specifics of the law of voluntary manslaughter and self-defence. This paper will argue for an individualistic examination of battered women cases, and with this the belief that each case is unique to the woman’s trauma and circumstances. Due to the highly unpredictable nature of abusive relationships,20 it would be naive of the English Justice System to apply a single legal principle to all cases of domestic abuse ending in a death. Battered women are part of a diverse group:21 some are economically dependent on their abusive partner,22 others suffer mental illnesses, and many also fight back.23
Due to the high sensitivity of these cases, it is of the utmost importance to differentiate battered women and avoid creating a monolithic profile which neatly categorises them. This paper will therefore argue for the differentiation between non-confrontational killings and confrontational killings. Women who kill their abusive partners in non-confrontational situations should be able to successfully plead diminished responsibility, due to an abnormality of the mind caused by BWS. On the other hand, women who kill their abusive partners in confrontational situations, in the midst of their partner violently attacking them, should be able to successfully plea selfdefence, and be acquitted of all wrongdoing.
Voluntary Manslaughter by Reason of Diminished Responsibility The law regarding voluntary manslaughter gives partial defences to defendants on trial for murder. These include loss of control and diminished responsibility. Partial defences are used in cases where the crime bears all elements of murder, but the offence is reduced to voluntary manslaughter due to special circumstances.24 Although the consequences of manslaughter remain severe, they differ from a murder conviction as the judge has more discretion regarding sentencing.25 With a murder conviction, the sanction is a mandatory life sentence.26 However, even though a judge can give a sentence of life for manslaughter, the average determinate custodial sentence is 14 years.27 The allure of a partial defence is self-evident: no requisite for a mandatory life sentence, and possible reductions when considering guilty pleas give defendants hope of less severe sanctions. This paper will seek to establish a partial defence of diminished responsibility brings the most legitimate result in cases where a BW kills her abuser in non- confrontational circumstances.
The original law regarding voluntary manslaughter by diminished responsibility was established under section 2(1) of The Homicide Act 1957:
‘Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind ... as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing’.28
The old law focused only on the abnormality of the mind, further defined by an objective reasonable person test from the case of Byrne as ‘a state of mind so different to that of ordinary human beings that the reasonable man would term it abnormal’.29
Further developments of the law brought about increased clarification. Section 52 of the Criminal Justice Act 2009 amended it to include medical evidence in regards to mental functioning. It expanded the law by including that a defendant must suffer from an abnormality of mental functioning which:
‘(a) arose from a recognised medical condition,
(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1a), and
(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.’30
The cornerstone of diminished responsibility is found in the requirement for an abnormality of mental functioning. The first case heard under the amended section was R v Brennan,31 where the court emphasised the need of expert medical evidence.32 A greater emphasis on medical evidence should be considered a win for battered women who seek to claim DR. Gleason found that the levels of psychopathology in a sample group of battered women showed extreme depression, PTSD, anxiety disorder and OCD.33
The inclusion of a recognised medical condition element is again linked to the desire to bring the law more in line with medical understanding and definitions. It is now necessary for the condition to be recognised in the Diagnostic and Statistical Manual.34 The inclusion of this subsection was of immense importance for battered women. The case of Ahluwalia35 was a landmark in legal principle; having suffered years of psychological and physical abuse by her husband, one night while he slept, she threw petrol over him and set him alight. She was convicted of murder, and no medical evidence was reported to the jury36. The Court of Appeal later held that by omitting to mention her sufferance of BWS and 'major depressive disorder' to the jury,37 her murder conviction was ‘unsafe and unsatisfactory’.38 It was the first case which successfully plead DR while sustaining a BWS diagnosis in the UK.
To satisfy diminished responsibility, the defendant’s mental functioning must be substantially impaired by at least one of the requirements in section 1A.39 The main difficulty regarding this section of the Act is its overlapping elements with the defence of insanity,40 which tend to be a more acute version of impairment of mental functioning. It is important to note that this paper will not be discussing a defence for battered women under the plea of insanity. Battered women can suffer from mental illnesses, but this does not equate to them being mentally insane. In regard to s1A(a)41, a substantial impairment of the defendant's understanding of the nature of their conduct, could mean that the defendant does not know what she is doing. S.1A(b) holds that the defendant must not be able to form rational judgments, therefore their ability to tell right from wrong must be substantially impaired. The Law Commission has explained this as a woman suffering from PTSD, due to violent abuse suffered by her husband, believes that only burning him to death will rid the world of his sins.42 This example is akin to the circumstances in Ahluwalia, thus encapsulating BWS incredibly accurately. And lastly, S.1A(c) states that the defendant must not be able to control herself.
The rationale behind diminished responsibility holds that the defendant lacks capacity in comparison to the ordinary person, thus providing them with an excusatory defence. Chapter 3 of this paper will discuss in what situations BW should seek a partial defence under diminished responsibility, and why it is the most appropriate defence for them.
Self-Defence
Self-defence is a justificatory defence, providing a complete defence to any charge of fatal or non-fatal violence, including murder.43 It accepts the defendant has both the actus reus and mens rea of the act, however the fact that the victim posed a violent threat justified the defendant to protect themselves. As previously stated, this paper will argue that certain battered women are not guilty of murder. These cases will encompass battered women who kill their abusers during a violent attack by their partner. Self-defence allows for individuals to protect themselves against a threat, and this chapter will set out why battered women who kill their abusive partners in confrontational situations should be included under the defence.
Self-defence originates from a number of different sources.44 Defence of the person is governed by the common law.45 Lord Morris, in the case of Palmer set out the basic principles of self-defence - ‘It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.’46 The law of self-defence was recently reviewed in The Criminal Justice Act and Immigration Act 2008,47 to add clarification on the operation of the existing common law and statutory defences.48 Section 76 dictates the element of reasonable force for self-defence. Firstly, the degree of force must be reasonable to the defendant in their circumstances. Secondly, if the defendant had a mistaken belief, self-defence can still succeed if the mistake was a reasonable one to make.49
The question relating to the necessity of force is subjectively assessed. The defendant will not be able to use self-defence if they are acting out of revenge,50 as this level of force would be unlawful. This could be problematic in cases of battered women, as it could be easily argued by the prosecution that they were taking out their revenge on their abusers after years of torment.
The question of reasonableness is an objective test which the jury must assess,51 although the test contains both subjective and objective elements. This test was described in Owino as “a person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be.”52 However, the degree of reasonableness needed is discussed in the case of Palmer, where it was established that a person defending himself ‘cannot weigh to a nicety the exact measure of his necessary defensive action’.53 The jury must take this into consideration and decide whether a person in that ‘moment of unexpected anguish.’54 From the above quotes, we understand that the defence is of an ‘all or nothing’55 nature. If the force is more than objectively reasonable in the circumstances the defendant believed to be in, the defence will fail. Whether defendant believed the force was reasonable is irrelevant.
The Crime and Courts Act 2013 states that in relation to the standard of reasonableness, the case must first be distinguished as a householder or non-householder case.56 Section 5(A) states that:
5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.57
This allows for a defendant to use disproportionate force to defend themselves against an intruder in their home. A householder may use disproportionate force, as long as it is not grossly disproportionate. This does not give a householder free rein to use any level of force, but a level that is reasonable considering the circumstances the defendant believed to be in.58
In deciding these factors, the court will need to consider the individual facts of each case, including the personal circumstances of the defendant and the threat posed. The types of characteristics the jury is allowed to consider remains restrictive. In the case of Martin,59 the court held that the defendant’s physical characteristics could be taken into consideration. The case of Press,60 introduced psychological characteristics. It was held that the defendant’s PTSD was relevant, as it could have caused defendant to mistakenly judge the need to use force, and then exceed what was reasonable in the circumstances. Even if his belief was absurd, as long as it was genuine, he could still raise the defence. The introduction of physical and psychological characteristics is of monumental importance to battered women. It allows both their physical aspects, like being weaker and smaller than their abuser, as well as psychological trauma be taken in consideration.
A last factor which needs to be considered, is the use of weapons. As a general principle, use of weapons is not considered reasonable.61 However, in a response to the Law Commission’s Consultation Paper 173,62 HHJ Goddard QC stated that the reasonableness test provided in common law may leave BW in an unjust position - ‘such a woman may use a weapon against an unarmed but violent man. I believe that I could properly direct a jury that the use of a weapon in circumstances does not per se rule out self-defence’.63 The rationale behind self-defence is that the defendant is justified in their actions due to the rightness of their act. If a threat is posed on an individual, they have the right to protect themselves against this threat. Therefore, this paper will argue in Chapter 4, that in situations where a BW finds herself being violently abused by her partner in her own home, SD is the most equitable criminal defence available.
The current law gives hope of establishing the fine line between justice for battered women and respect for the rule of law. Chapter 3 will further discuss why battered women who kill their husbands in non- confrontational situations should be offered the partial protection offered by diminished responsibility and will take a closer look at BWS and the psychological effects it has on women. Chapter 4 will discuss BW who kill in confrontational situations. It will look at the gender stereotype of self-defence, and the difficulties it brings to battered women. Finally, it will discuss why self-defence should be an available defence for battered women and why it would bring best achieve the criminal law’s goals of justice.
CHAPTER 3 NON-CONFRONTATIONAL CIRCUMSTANCES
This chapter will focus on situations where a battered woman kills her abuser in non-confrontational circumstances. For the purpose of this paper, ‘non-confrontational’ will be defined as situations where the abuser does not pose an active threat to the battered woman; for example, if he is asleep or unconscious due to intoxication. The purpose of this chapter will be to discuss Walker’s BWS in detail and review the psychological composition of women who have suffered at the hands of their abusive partners. Having had this discussion, it will then turn to analysing the law of diminished responsibility in relation to BWS, and assess how a BW’s fragmented mental state drives her to lacking the criminal responsibility needed to be guilty of murder. To conclude this discourse, it will state why battered women who kill in non- confrontational situations should abide to diminished responsibility and should not engage in pleas of self-defence.
Battered Woman Syndrome
Dr. Lenore Walker defined BWS as a condition suffered by ‘a woman who has been physically, sexually, or seriously psychologically abused by a man in an intimate relationship, without his regard for her rights, in order to coerce her into doing what he wants her to do at least two times, often in a specific cycle’.64 Continuous cycles of abuse affect a woman’s mental state in various ways.
The main outcome is the development of learned helplessness: a psychological process which limits a woman’s reaction to certain situations.65 Learned helplessness works as a numbing mechanism, which affects the parts of the brain a battered woman uses to think, how they feel, and the way they behave.66 By limiting the brain’s responses to situations, battered women find themselves being unable to predict the effect their behaviour would have. This development subsequently makes battered women likely to simply use the most predictable method of protecting herself if she perceives danger.67 For the battered woman, it carries little weight that the method she uses might lead to the end of the batterer’s life, her primary objective is to protect herself as efficiently as possible. Women who have endured years of repeated beatings tend to suffer from low self-esteem,68 and in the absence of this self-worth they find themselves resigning to the unavoidable nature of the abuse.69 The state of learned helplessness thus acts as a psychological paralysis for battered women. As the beatings continue, each time more brutal, the woman’s focus shifts from trying to understand her batterer, to surviving.70
Walker uses a three-phase pattern to describe the cycle of violence experienced by women in abusive relationships. Firstly, the couple experiences a tension building phase. As the batterer’s rage increases, both individuals sense an ‘impending loss of control’,71 and the synced desperation between them does nothing but fuel more tension in the household. Walker describes the battered woman’s behaviour in this phase as ‘a double-edged sword’72: the more appeasing her actions are, the more the partner legitimises his right to abuse her. The second stage develops into an acute battering incident. The battered woman holds absolutely no power in this stage, and how long the phase lasts is completely up to the abuser.73 The battering reduces the battered woman to a state of constant fear and anxiety, which lengthens her perception of fear beyond the initial battering period.74 This psychological state leaves the women feeling ‘psychologically trapped’, and often do not experience the emotional collapse rooted from their trauma until weeks after.75 The final stage of the cycle of violence was described by Downs as the ‘loving contricton’76 phase. This stage creates an illusion of bliss felt by both the batterer and the battered woman. The moments of peace brought by this phase allow battered women to keep hold of the dream life they wish to have with their partners,77 it allows them to believe they are the only people who can support their partner’s emotional stability.78 Therefore, they refuse to leave; and the state of learned helplessness reinforces the why she undoubtedly believes he will change, despite an outsider regarding it as an unreasonable belief. As the relationship progresses, the frequency of the beatings rises and becomes crueller, until eventually the phase of peace isn't as distinct.79
BWS As A Medical Condition
Walker categorised BWS as a subcategory of Post-Traumatic-Stress- Disorder80 (PTSD), explaining that the high intensity of abuse battered women are exposed to can effectively stimulate a development in their coping responses to the trauma.81 This consequently reduces their ability to successfully escape from further trauma. Similarly to other PTSD victims, battered women tend to show symptoms such as cognitive disturbances, high arousal symptoms, and high avoidance symptoms.82 Cognitive disturbance causes battered women to suffer from repetitive intrusive memories, and in order to keep those at bay they develop a strategy based on denial.83 High arousal symptoms lead them to be hypervigilant to any signs of potential danger coming from their partners.84 This hypervigilant state can be an explanation as to why a battered woman might attack her batterer in a situation which to an outsider seems like a moment of peace. The high avoidance symptoms on the other hand, cause battered women to fall into severe depressions.85 Combining the surging depression with their state of denial, the women tend to end up isolating themselves, and thus only exposing themselves to their abusive partner.
French psychologist Pierre Janet developed a theory based on dissociation, which expands the realm of PTSD.86 Janet’s dissociation theory represents a process by which ‘certain mental functions ... operate in a more compartmentalised ... way, usually outside the sphere of conscious awareness’.87 Janet discovered that patients with unresolved traumatic experiences became more suggestible to ideas introduced by darker parts of their brain.88 His explanation of this fragmentation of consciousness was due to the dissociated nuclei in the brain became independent from the individual’s core personality, and developed in response to traumatic events.89 As the trauma gradually engulfs the individual, the central personality is weakened, and the tendency to dissociate becomes stronger. This often occurs to such an extent that allows alternative state of consciousness to fully dominate the core personality.90 The process of dissociation thus makes the individual more suggestible, as Bernheim proposed.91 He hypothesised that PTSD causes the personal consciousness to be suppressed by the dissociated nuclei, which is not an arduous task since the individual’s consciousness has become so narrow that they are often not in themselves in the first place.92
[...]
1 Quash, R., ‘Battered Women Who Kill Their Abusers: The Admissibility of Expert Testimony on the Battered Woman Syndrome to Support a Claim of SelfDefence' (1991) 20 Colonial Law 1, 1.
2 The Guardian, 'One woman dead every three days: domestic abuse in number' (December 2017) <https://www.theguardian.com/public-leaders- network/2017/dec/14/domestic-abuse-violence-women-femicide-review-refuge- cuts-in-numbers> (Accessed 28th November 2018).
3 Ibid.
4 The Guardian, 'An End to an Easy Way Out' (2008) <https://www.theguardian.com/commentisfree/2008/jul/29/law.ukcrime?CMP=aff_1 432&awc=5795_1543411804_f1006ed1d91e42ee88bad9bbb60c8570a> (Accessed 28th November 2018).
5 Walker L., Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Collins, 1989) 35.
6 Ibid, 4.
7 Downs D.A., 'More Than Victims: Battered Women, the Syndrome Society, and the Law' (University of Chicago Press, London, 1996), 7.
8 Browne A., When Battered Women Kill (Free Press, 1987); Lenore Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Collins, 1989); Krause J., 'Distorted Reflections of Battered Women Who Kill: A response to Professor Dressler' (2007) 4 Ohio St. J. Crim. L. 555.
9 Dressler, 'Battered Women and Sleeping Abusers: Some Reflections' 2006 Ohio State Journal of Criminal Law, Vol 3:457.
10 Browne A., When Battered Women Kill (Free Press, 1987), 179.
11 R v Ahluwalia 1992 4 All ER 889.
12 R v Gardner (1993) 14 Cr. App. R. (S.) 364.
13 Walker L., Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Collins, 1989), 12.
14 Dressler, 'Battered Women and Sleeping Abusers: Some Reflections' 2006 Ohio State Journal of Criminal Law, Vol 3:457, 1.
15 Ibid, 9.
16 Ibid, 12.
17 Section 52, Criminal Justice Act 2009.
18 Van der Hart & Horst, ‘The Dissociation Theory of Pierre Janet' Journal of Traumatic Stress, Vol 2, No4, 1989.
19 Section 76(6), Criminal Justice and Immigration Act 2008.
20 Lenore Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Collins, 1989), p43.
21 Becker, M., ‘The Passions of Battered Women: Cognitive Links between Passion, Empathy, and Power' (2001) 8 Wm. & Mary J. Women & L. 1, p72.
22 McVeigh, K., ‘Domestic abuse: from having it all to a life of hell' The Guardian ( 10th October, 2014) <https://www.theguardian.com/society/2014/oct/10/domestic-abuse-criminalise- coercive-control-emotional-financial-sexual-physical> (Accessed 15th Feb 2019).
23 Becker, M., ‘The Passions of Battered Women: Cognitive Links between Passion, Empathy, and Power' (2001) 8 Wm. & Mary J. Women & L. 1, p72.
24 The Crown Prosecution Service, ‘Homicide: Murder and Manslaughter' <https://www.cps.gov.uk/legal-guidance/homicide-murder-and-manslaughter> (Accessed 8th Dec 2018).
25 Sentencing Council, Manslaughter Sentencing Leaflet, p1 <https://www.sentencingcouncil.org.uk/wp-content/uploads/FINAL-Manslaughter- sentencing-leaflet-for-web1.pdf> (Accessed Dec 8th 2018).
26 Sentencing Council, Murder Sentencing Leaflet, p1 <https://www.sentencingcouncil.org.uk/wp-content/uploads/FINAL-Murder- sentencing-leaflet-for-web1.pdf> (Accessed 8th Dec 2018).
27 House of Commons Justice Committee, Draft Sentencing Council guidelines on manslaughter (HC 658, 2017), p 4 <https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/658/658.pdf> (Accessed 8th Dec 2018).
28 Section 2(1), Homicide Act 1957
29 R v Byrne (1960) 2 QB 396, 397.
30 Section 2(1), Homicide Act 1957, amended by Section 52 Criminal Justice Act 2009.
31 R v Brennan 2014 EWCA Crim 2387.
32 Ibid, para 44.
33 Gleason, W.J., ‘Mental disorders in battered women: An empirical study' (1993) 8 Violence and Victims 1, 53-68.
34 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5, (5th Edn, 2013).
35 R v Ahluwalia 1992 4 All ER 889.
36 Magrath P., ‘Law Report: Classic direction to jury on provocation defence upheld: R v Ahluwalia' The Independent (4 August 1992), <https://www.independent.co.uk/news/uk/law-report-classic-direction-to-jury- on-'provocation-defence-'upheld-r-v-ahluwalia-court-of-appeal-1538094.html> (Accessed 8th Dec 2018).
37 Ibid.
38 Ibid.
39 s1A, CJA 2009.
40 M'Naghten 1843 UKHL J16.
41 s1A(a), CJA 2009
42 Law Commission, Partial Defences to Murder (Consultation Paper No.173, 2004) <http://www.lawcom.gov.uk/app/uploads/2015/03/lc290_Partial_Defences_to_Murd er.pdf> (Accessed November 2018), para 5.121.
43 Law Commission, Partial Defences to Murder (Consultation Paper No.173, 2004) <http://www.lawcom.gov.uk/app/uploads/2015/03/lc290_Partial_Defences_to_Murd er.pdf> (Accessed November 2018), para 4.5.
44 Criminal Prosecution: Service Self-Defence and the Prevention of Crime, <https://www.cps.gov.uk/legal-guidance/self-defence-and-prevention-crime> (Accessed 9th Dec 2018).
45 R v Cousins 1982 1 QB 526.
46 R v Palmer (1971) AC 814, 831.
47 The Criminal Justice Act and Immigration Act 2008.
48 Criminal Prosecution: Service Self-Defence and the Prevention of Crime, <https://www.cps.gov.uk/legal-guidance/self-defence-and-prevention-crime> (Accessed 9th Dec 2018).
49 Section 76(3-4), The Criminal Justice Act and Immigration Act 2008.
50 R v Bird 1985 1 WLR 816.
51 Law Commission, Partial Defences to Murder (Consultation Paper No.173, 2004) <http://www.lawcom.gov.uk/app/uploads/2015/03/lc290_Partial_Defences_to_Murd er.pdf> (Accessed November 2018), para 4.6
52 Owino 1996 2 Cr App R 128, 134.
53 R v Palmer (1971) AC 814, 832.
54 Ibid.
55 Law Commission, Partial Defences to Murder (Consultation Paper No.173, 2004) <http://www.lawcom.gov.uk/app/uploads/2015/03/lc290_Partial_Defences_to_Murd er.pdf> (Accessed November 2018), para 4.7.
56 Section 43(1), Crime and Courts Act 2013.
57 Ibid, Section 76(5A).
58 Section 76(3), Criminal Justice Act and Immigration Act 2008.
59 R v Martin 2002 2 WLR 1.
60 Press v R 2013 EWCA Crim 1849.
61 R v Clegg 1995 1 AC 482.
62 Law Commission, Partial Defences to Murder (Consultation Paper No.173, 2004) <http://www.lawcom.gov.uk/app/uploads/2015/03/lc290_Partial_Defences_to_Murd er.pdf> (Accessed November 2018).
63 Ibid, para. 4.12.
64 Walker L., Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Collins, 1989) 35.
65 Ibid, p36.
66 Ibid, p36.
67 Seligman M., & Groves D., ‘Nontransient Learned Helplessness' (1970) 19 Psychon. Sei., 3, 191-192.
68 Clements, C. , Sabourin, C. , and Spiby, L., ‘Dysphoria and Hopelessness Following Battering: The Role of Perceived Control, Coping, and Self-Esteem' (2004) 19 Journal of Family Violence 1, pp. 25-36.
69 Wallach, S., ‘A Defence for the Battered Woman? Assessing the Adequacy of Legal Defences Available to Battered Women who Kill' (1998) 14 Women’s Studies Journal 1.
70 Downs D.A., 'More Than Victims: Battered Women, the Syndrome Society, and the Law' (University of Chicago Press, London, 1996), p6.
71 Walker L., Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Collins, 1989) 43.
72 Ibid.
73 Ibid, 43-44.
74 Downs D.A., 'More Than Victims: Battered Women, the Syndrome Society, and the Law' (University of Chicago Press, London, 1996), p81.
75 Walker L., Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Collins, 1989) 44.
76 Downs D.A., 'More Than Victims: Battered Women, the Syndrome Society, and the Law' (University of Chicago Press, London, 1996), p81.
77 Becker, M., ‘The Passions of Battered Women: Cognitive Links between Passion, Empathy, and Power' (2001) 8 Wm. & Mary J. Women & L. 1, 17.
78 Walker L., Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Collins, 1989) 45.
79 Wallach, S., ‘A Defence for the Battered Woman? Assessing the Adequacy of Legal Defences Available to Battered Women who Kill' (1998) 14 Women’s Studies Journal 1, 137.
80 Walker, 'Battered Women Syndrome and Self-Defense' (1992) 6 Notre Dame J.L Ethics & Pub, Pol'y 321, 327.
81 Walker L., Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Collins, 1989) 48.
82 Pelochino, A., ‘Justifiable Crimes: Working towards an End to Injustice for Battered Women Convicted of Crimes Spurred by the Abusers' (2005) 36 McGeorge L. Rev. 905, 908.
83 Ibid.
84 Ibid.
85 Ibid.
86 Janet, P., La Médecine Psychologique (L'Harmattan, 1923).
87 Van der Hart & Horst, ‘The Dissociation Theory of Pierre Janet' (1989) 2 Journal of Traumatic Stress 4, 1.
88 Ibid, 4.
89 Ibid, 5.
90 Ibid.
91 Bernheim, H., De La Suggestion (A Michel, 1917).
92 Van der Hart & Horst, ‘The Dissociation Theory of Pierre Janet' (1989) 2 Journal of Traumatic Stress 4, 6.
- Citation du texte
- Sara Vincenzotti (Auteur), 2019, The Criminal Law Defences Available to Battered Women Who Kill Their Abusers. A Psycho-legal Analysis, Munich, GRIN Verlag, https://www.grin.com/document/903668
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