Domestic violence: how the law fails women

September 9, 1992

By Karen Fletcher

Dagma Stephenson killed her husband on September 29, 1991, after 22 years of violent abuse at his hands. Her Queensland Supreme Court trial ended on the evening of August 19, 1992, when the jury found her not guilty of either murder or manslaughter: they accepted that she had acted in self-defence.

Dagma Stephenson's life with William Frederick Stephenson was unbearable, but she bore it, somehow, for 22 years. She tried to escape by every method available: the police, women's refuges, apprehended violence orders, restraining and protection orders. He always found her. Once she eluded him for two years, but he found her and their children, and threatened to throw acid in her face if she did not allow him back. Court orders meant nothing; he simply tore them up.

Stephenson attempted to shield her children from the reality of their parents' lives, but it was impossible to shield them completely. At Dagma's trial her eldest daughter, Christina, gave evidence that she had once seen her father knock her mother to the floor and rape her. She said her father had on other occasions threatened her mother with a 30-cm instrument with a hooked, pointed steel head, which he called his "picket".

Despite this evidence and eyewitness testimony from Christina that her mother had stabbed William Stephenson in self-defence during an attack by him, it remained extremely difficult for the defence lawyers to convince the jury to acquit Dagma Stephenson completely.

Green Left Weekly spoke to Zoe Rathus (coordinator of the Brisbane Women's Legal Service, chairperson of the Queensland Domestic Violence

Council and solicitor assisting with the defence of Dagma Stephenson) about the case. She said that the difficulty for the defence was at least partly due to the legal construction of "self- defence".

"Self-defence is constructed in criminal law very much within the paradigm of male behaviour: There is a fight. In the heat of the fight man A comes at man B with weapon, man B picks up a similar weapon, uses similar force, and kills man A.

"This assumes protagonists of equal physical strength and fighting ability. It doesn't apply to domestic violence, because not only are you talking about a man and a woman with, usually, a significant difference in physical strength, you're also talking about a history which has demonstrated very clearly that one of them is physically dominant."

Rathus says it is rare for a woman's self-defence to meet that legal definition. Studies of women who killed violent husbands show a very high percentage have killed within hours of an act of violence against them, but not at the precise time. "The women generally do not feel able to respond immediately; they have to wait until the situation and the dynamics have changed.

"They often kill when the man is asleep, or very drunk or passed out, or is walking away after a violent attack. Those acts do not fall within the traditional legal definition of self-defence.

"But if you really understand the dynamics of domestic violence, you know that when those women kill subsequent to a major physically violent attack they are really acting in self-defence."

In order to successfully argue self-defence in a case where a person has been killed, "reasonable apprehension of death or grievous

bodily harm" must be proven. It is therefore relevant to consider whether the accused person could have escaped, and whether the amount of force, or the type of weapon they used, was "reasonable" in the circumstances.

But what is "reasonable" for a woman who has endured 22 years of domestic violence? If she could escape from the particular attack, would she be able to escape the next time? If she "fought fair" and used the same type of weapon her attacker used, would she be able to overcome his physical strength?

The application of so-called "objective" tests of "reasonableness" have traditionally been made using the standard of "the reasonable man". Feminist lawyers have for many years pointed out that these standards don't apply to half the population. Despite this, the "reasonable man" remains embedded in legal formulations. As a result, under Australian (and English) law, a woman who kills her husband while he is asleep could not possibly have acted in "self-defence", but a man who kills his wife because she was nagging him may well have been "provoked".

Dagma Stephenson killed her husband during a violent attack. Her daughter Christina gave evidence that on the night he died William Stephenson was drunk and threatened his wife with a chair, holding it above his head and screaming demands that she find his car keys. He lunged at his wife and wrestled with her, beating her about the head. Christina saw blood on her father and heard him say, "Look what she's done. She's stabbed me." She said her father then staggered to the front lawn, where he bled to death.

Rathus says the jury obviously had trouble fitting even this scenario within the confines of the legal definition of self-defence.

"It wasn't until I waited with the family and the client for 32 hours, while the jury thought about it, and they all kept saying, 'Why is it taking so long?', that I really started to understand how the jury must be feeling. Watching them coming back in and asking for redirections time after time, we started to see the legal stress they were under.

"The hardest issue for the jury was, I think, trying to establish whether 'self-defence' was available as a defence, because they had to be satisfied that the accused was in 'serious apprehension of death or grievous bodily harm'.

"Although the husband was quite a tormenter he had very rarely injured her in a way that could be called grievous bodily harm. Probably the closest he came to it was on one occasion he kicked her in the back just after she'd had a back operation. I think that the 'serious apprehension' requirement was what they were trying to grapple with. What they had to decide was whether, even though he had never done it before, she was being reasonable in believing that she was at that level of risk at that moment."

Christina Stephenson gave evidence that her father had once returned home, in breach of a restraining order, and declared that he didn't care if he went to jail because when he got out he would kill the whole family. In this context, Dagma Stephenson's fear for her life might seem reasonable to the lay person, and more especially to anyone with a knowledge of domestic violence, but the traditional application of the law forces the jury to look at the event itself, and physical evidence of harm, not to the history of the relationship or the patterns of domestic violence.

Nevertheless, Rathus believes that at least one member of the jury (seven women and five men) would have brought the benefit of first-hand knowledge of domestic violence to the decision-making process.

"On that jury at least one person must have had a significant history of domestic violence in their life. At the very least one of them must have known someone, perhaps a sister or a friend, who had experienced serious domestic violence.

"The chances of not getting someone like that on [the jury] are a lot slimmer than the chances of getting someone."

The jury finally decided, that Dagma Stephenson's case fitted into the traditional legal definition of self-defence. Other women who have killed violent partners some hours after an attack, however, have ended up in jail with convictions ranging from manslaughter to murder, or, at best, acquittals for insanity.

Traditionally, the main option for defence lawyers in these cases has been to argue insanity, mental impairment or diminished responsibility, thereby placing the woman at risk of being held in a psychiatric facility for an indefinite period, or at best having a murder conviction reduced to manslaughter. It was only in the late '70s that the self-defence strategy was first suggested, by two female lawyers in the United States, as a possibility for defending women who murdered in response to physical or sexual assault.

In recent years, following the failure of the self-defence strategy due to its seeming inability to deal with female experience, a legal notion known as the "battered woman syndrome" has been developed.

The "syndrome" was first described by clinical psychologist Lenore Walker (author of The Battered Woman, 1979), who wrote that a "battered woman" is "... a woman who is repeatedly subjected to any forceful physical or psychological behaviour by a man in order to coerce her to do something he wants her to do without any concern for her rights ... in order to be

classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman."

Walker's theory was that women subjected to repeated violence become immobilised, passive and unable to act to improve their situation. She labelled this psychological state "learned helplessness", a term borrowed from the work of Martin Seligman, whose experimentation on animals demonstrated that exposure to unavoidable painful stimuli can render animals passive, helpless and unable to escape when given the opportunity.

The "battered woman syndrome" has been used in US courts since the early '80s. Here it was argued for the first time in 1991 in South Australia, and has been used in two subsequent cases, one in SA in 1991 and one in NSW last March.

In a legal context, "battered woman syndrome" refers to expert evidence on domestic violence and "battered women" as a group, in order to counteract the restrictiveness of the "objective test of reasonableness". It is supposed to enable the jury to make allowances for women who suffer from the "syndrome" and not judge them by the standards which would be expected of the "reasonable man".

Zoe Rathus says the lawyers in the Stephenson case deliberately chose not to argue the syndrome, largely because they felt there was a strong enough case for a straight "self-defence" plea. Rathus also has serious problems with a defence which focuses on the mental state of the victim, rather than on the physical danger to which she responds:

"I don't like the word 'syndrome' and the

psychologising of the behaviour. Yes, it is true that a long history of domestic violence means that those women have been subjected to an experience which produces certain psychological effects, in the same way that anyone who is tormented for any length of time will suffer some psychological fallout, but giving it a name like that, as if it is some kind of illness, places the whole emphasis and focus on the victim, rather than on the perpetrator, and makes it look like domestic violence is an illness as opposed to something that is created by male violence towards women."

Rathus also points out that the definition of the "syndrome" is restricted to a very specific group of women and may not be available to women who don't fit the profile exactly.

"The 'battered women syndrome' defence risks ... excluding women who don't fit the definition. There will be women who don't fit the picture the jury expects after hearing the definition of the syndrome.

"If you give the jury a lot of information about domestic violence, a lot of general information about how people respond, and then the woman perhaps seems to be very confident, rational and articulate, and doesn't fit what the jury has been told, then she may be excluded from the defence."

Rathus' fears are a reality in the United States. There, in one case a woman was denied the "battered woman" defence because she did not fit the psychological profile and because she had made attempts to escape her abuser. In another case it was denied because she had experienced only one prior incident of physical abuse, and in another because she had fought back!

Rathus has seen many women survivors of domestic violence in her time as a solicitor with the Brisbane Women's Legal Service. Her experience

of these women, she says, is quite opposite to the "battered woman syndrome" profile:

"'Learned helplessness' is really a disgusting notion", she says. "In fact, what one starts to notice about women who have been through violent relationships is their incredible resourcefulness, their ability to cope with raising a family, budgeting, working, in the face of incredible abuse. They are anything but helpless.

"There is no doubt that law enforcement agencies and systems reinforce the incredible difficulty that women have leaving. The helplessness is in the system. The helplessness is in the public agencies which have failed to provide the appropriate responses to violence, not with the women who have been in those relationships."

"Learned helplessness" and the "battered woman syndrome" hark back, alarmingly, to the days when insanity or diminished responsibility were almost invariably argued in spouse homicide cases against women.

The facts are that one in three Australian women has experienced or will experience violence at the hands of a husband, de facto or boyfriend, that only last century it was legal for a man to beat his wife as long as he used a stick no thicker than his thumb and that Australia remains a deeply sexist society.

In a society so riddled with male violence, is predictable that lethal self-defence, when used by a woman, will be labelled "unreasonable", "irrational" and even "insane".

In Backlash, Susan Faludi describes the reintroduction of "masochism" as a psychiatric disorder, allegedly suffered mainly by women, into the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders in 1985.

"Masochism" diagnoses were fashionable in the Victorian era, but vanished early in this century as women such as psychoanalyst Karen Horney began to point out that so-called "natural" female masochism was more likely to be the unnatural product of a sexist social system of rewards and punishments. Faludi notes that "... by the 1970s the notion of an innate female masochism seemed a quaint relic, more a jocular buzzword than a defensible psychoanalytic theory".

Backlash documents a struggle between the American Psychiatric Association (APA) panel reviewing the professional manual and feminists on the APA's Committee on Women (including the chair of the committee) over the inclusion of the "masochistic personality disorder", a disorder which included traits such as "'choosing' people who 'mistreat'" one and "remaining in relationships in which others exploit, abuse or take advantage." The women lost the battle (all feminists were purged from the committee), and a new female "ailment" entered the books.

Faludi writes: "the panel neatly summed up female socialisation and stamped it a private, psychiatric malfunction".

It appears that the use being made of the "battered woman syndrome" in US Courts may also be part of a backlash against feminist jurists and their attempts, since the '70s, to expose the hidden (and not so hidden) gender bias of the law.

The Stephenson case is one rare — perhaps the only — case in Australia in which self-defence has been successfully argued, without the "assistance" of battered woman syndrome evidence, to obtain a complete acquittal for a woman accused of spouse homicide after a history of domestic violence.

The attitude of Australian judges to battered woman syndrome evidence does not appear to be markedly different to that of their US counterparts. In the 1991 South Australian case, the chief justice of the South Australian Supreme Court said:

"... methodological studies by trained psychologists of situations of domestic violence have revealed typical patterns of behaviour on the part of the male batterer and the female victim ... women who have suffered habitual domestic violence are typically affected psychologically to the extent that their reactions and responses differ from those [expected by people] who lack the advantage of an acquaintance with the result of those studies ..."

He goes on to say that the expert testimony of a psychologist would be relevant primarily "... to establish a pattern of responses commonly exhibited by battered women ... to compare with what would be expected of women generally, that is to say women of reasonable firmness, who should find themselves in a domestic situation such as that in which the applicants were ..."

Zoe Rathus acknowledges that a lawyer's job is to get the best possible result for a client within the confines of the legal system, but believes that battered woman syndrome evidence should be used only if straight self-defence is not an option.

She says that the Queensland Domestic Violence Council has made a submission to the Queensland Criminal Code Review Committee recommending the enactment of a specific statutory defence to murder and manslaughter in cases where there has been a history of domestic violence.

Naturally, it would be better to see a total overhaul of the legal system, so that both male and female experience shaped the law. But while the current legal system remains steeped in sexist traditions, women will be obliged to continue to

struggle to fit their experience, somehow, into its presumptions and definitions, or to graft on "exceptions" to the general (sexist) rule.

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