Historic domestic violence appeal
By Anne O'Casey
A "Freedom Bus", carrying 30 of the many supporters of Heather Osland, arrived in Canberra in the early hours of April 23. We had travelled from Melbourne and Bendigo to be present at the High Court appeal against her conviction and sentence to 14½ years' jail by the Victorian Supreme Court in October 1996 after a jury found her guilty of murdering her violent husband, Frank Osland.
There are no provisions for defendants to attend their own High Court appeals, so Heather remained anxiously awaiting news at the Melbourne Metropolitan Women's Prison, where she is serving her sentence.
Heather Osland, 51, experienced 13 years of physical, sexual and psychological abuse from her husband. Physical abuse ranged from constant pushing and slapping, being dragged by the hair or ears, to full force punches to the face and body.
Sexual abuse was ongoing. Forced vaginal, oral and anal penetration resulted in recurring medical difficulties.
Psychological abuse included Frank's control over all activities and the imposition of strict rules. Heather needed Frank's permission to shower, to walk from one room to another, to watch television, to eat and even to enter the house. Frank stopped Heather talking to her four children from a previous marriage and forced her to observe the abuse of her children and pets.
Heather's son David had been living with his mother and Frank in order to minimise the harm to her. He and the other children feared their mother would be killed.
Over the years, Heather made several attempts to leave. She sought assistance from police on many occasions and took refuge with friends and neighbours. There were numerous separations. The abuse did not stop.
After years of abuse, with no possibility of escape and under the threat of death, David and Heather killed Frank in self-defence.
At the trial in which Heather was convicted, the jury were unable to reach a verdict for David, now 29. At his retrial, he was acquitted of all charges on the grounds of self-defence.
Despite the fact that David struck the lethal blow and Heather did not herself use violence, Heather's Supreme Court appeal in August 1997 was unsuccessful.
Heather sought leave to appeal to the High Court, and this was granted on February 13, 1998. More than 150 supporters of all ages and walks of life packed the courtroom.
The High Court appeal, led by Dr Jocelynne Scutt, was conducted on a number of grounds. The first was the inconsistent verdicts.
This was also the first time that the High Court has been asked to consider the law of self-defence with respect to women who have been subjected to domestic violence.
The legal defences of self-defence requires that the defendant believed on reasonable grounds that it was necessary in self-defence to do what she did.
It is only at the point of sentencing that information about the victim's violence will be taken into account. It is at this point that the "battered woman syndrome" has been used to reduce sentences for a number of women.
The test for self-defence was framed historically in terms of strangers meeting for the first time and facing immediate violence: for instance two men in a bar room brawl. It was assumed that a woman would act in self-defence only if she were faced with immediate violence and if all other avenues, such as running away, were unavailable.
Self-defence in current law raises serious issues in its application to women in domestic violence situations. For example, a woman may kill a violent partner while he is asleep or otherwise not an "immediate threat". How is a jury to decide whether she had "reasonable grounds" for believing she had to kill?
Scutt addressed these issues in addition to highlighting difficulties with the battered woman syndrome. Developed by US psychologist Lenore Walker, this argues that the woman has been psychologically affected by the pattern of violence she has suffered so that she is reduced to a depressed state and suffers from "learned helplessness".
Scutt and a number of other feminist scholars, such as Helen Brown from Latrobe University, have pointed to the problematic nature of learned helplessness. One of the most obvious weaknesses is the failure to explain the paradox of abused women taking the very pro-active step of killing their abuser — a step requiring resolve and sense of purpose.
Battered woman syndrome also allows the expert witness, the psychiatrist or the psychologist, to speak, rather than the woman on trial reporting her feelings, reactions and experiences.
Scutt chose to use the term "battered woman reality" to draw attention to the fact that women like Heather Osland are not deluded, insane or pathologically helpless. Heather's response may then be better understood as both reasonable and rational.
Scutt argued that women like Heather have not learned helplessness, but that it is useless to try to get help from the police or outside sources.
The battered woman syndrome focus acts to remove any emphasis, analysis or attention on the man's behaviour. At present, courts cannot see the chronic violence of the deceased male without focusing on the woman as mad.
Feminist scholars argue that the focus must be shifted to the common dynamics of violent relationships. Judges and juries must be educated about the common techniques of abuse, such as isolation, food and sleep deprivation, ritualised abuse and repeated degradation and humiliation.
Then, the woman's actions in killing a tyrannical spouse can be understood as reasonable and necessary in self-defence.
The defence was conducted on a total of seven grounds and is seeking an acquittal, or, failing that, a retrial.
Pauline Spencer, community lawyer and spokesperson for the support group, commented, "Dr Scutt clearly indicated that this case was not asking for women in Heather's situation to be exempt from murder laws or for women generally to be given special treatment, just that the laws of self-defence be open to women's experience as well as men's".
The High Court has reserved its decision.
[Anne O'Casey is making a documentary about the case. For more information or to make donations, contact the Heather Osland Release Group at Brimbank Community Centre, 822 Ballarat Road, Deer Park Vic 3023, ph: (03) 9363 1811.]