Defending Battered Women: Everything She Says May Be Used Against Them

• NCJ Number: 151997
• Journal: North Dakota Law Review Volume: 68 Issue: 1 Dated: (1992) Pages: 131-144
• Author(s): I B Nodland
• Date Published: 1992
• Length: 14 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article discusses practical techniques for presenting "battered woman syndrome" evidence in the courtroom on behalf of women who have killed their mates.

Abstract

Most of the theoretical literature on this subject argues that battered woman syndrome should not be considered as a defense by itself but should be used to support "self-defense" as a justification for the homicidal act. To use such evidence otherwise, it is argued, perpetuates age-old stereotypes of women as "crazy," "weak," "dominated," and in need of protection by the legal system. The thesis of this article is that promotion of historical stereotypes may very well be an immediate consequence. The problem is that insistence that diminished capacity defense not be used may seriously limit the kinds of evidence the court will allow and may cost individual women now on trial many additional years in prison and, in some cases, life. If the defendant is truly a "battered woman," her biographical information will contain a wealth of incidents that, as a composite, make her perception of the need to take action to preserve her own life understandable. In the defense of such persons, attorneys must be concerned that the Fifth Amendment right to remain silent is explained and preserved, but ultimately the defense is based on speaking and not on silence. Usual concerns about showing one's hand to the opposition in advance many not apply, and the use of the state's own witnesses to present biographical, medical, and social history is a proven vehicle for gaining acquittals for battered women who have killed their abusers. Defense attorneys should not be too sensitive to academic objections to diminished capacity as a defense in some quest for theoretical purity. In the real world, jurors will decide not whether the defendant was mentally ill but whether or not the defendant was so abused that she had the right to do what she did. 60 footnotes