BATTERED WOMAN SYNDROME

{footnote}CHECK Cal. Evid. Code § 1107(a)(West 1995)(evidence admissible on behalf of prosecution but not to show occurence of act or acts charged).
CHECK Ellis, 656 A.2d at 31-32 (expert testified that actions of kidnapping and sexual assult victim consistent with BWS); State v. Castro, 756 P.2d 1033, 1044 (Haw. 1988); State v. Frost, 577 A.2d 1282, 1288 (N.J. Super. Ct. App. Div. 1990).{/footnote}[643]
§ 1. Generally.
§ 2. Prosecution Use of Expert Testimony.
§ 3. Defense Use of Expert Testimony.
Bibliography.

1. Generally

Battered Woman Syndrome (BWS) refers to certain behaviors and feelings commonly exhibited by victims of repeated physical or mental abuse by their spouse or other partner. The syndrome was originally described by Lenore E. Walker.{footnote}Lenore E. Walker, The Battered Woman (1980).
See also Lenore E. Walker, The Battered Woman Syndrome (1984); Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds 51 (1989).{/footnote} The two major elements of BWS are the "cycle of violence" and "learned helplessness."

The cycle of violence has three phases which may be summarized as (1) heightening tension with many abusive incidents, (2) an explosion of violence, (3) the batterer’s remorse and attempt at reconciliation, and then the cycle repeats. "Learned helplessness" describes the tendency of someone who is exposed to seemingly random abuse to become passive and feel powerless.

2. Prosecution Use of Expert Testimony{footnote}{/footnote}[645]

Expert testimony as to BWS has been held admissible to explain why a prosecution witness recanted her original allegations of criminal conduct against the defendant.{footnote}Arcoren v. United States, 929 F.2d 1235, 1241 (8th Cir. 1991), cert. denied, 502 U.S. 913 (1991) (victim recanted grand jury testimony); State v. Borrelli, 629 A.2d 1105, 1108 (Conn. 1993); State v. Cababag, 850 P.2d 716 (Haw. Ct. Ap.), cert. denied, 853 p.2d 542 (Haw. 1993); State v. Frost, 577 A.2d 1282, 1288 (N.J. Super. Ct. App. Div.), cert. denied, 604 A.2d 596 (N.J. 1990); State v. Bednarz, 507 N.W.2d 168, 172 (Wis. Ct. App. 1993).
See generally Cal. Evid. Code § 1107 (1996):

(a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women’s syndrome, including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.
CHECK State v. Stringer, 897 P.2d 1063, 1069 (Mont. 1995); Pruitt v. State, 164 Ga. App. 247 (1) (296 SE2d 795); State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984).
CHECK People v. Christel, 537 N.W.2d 194 (Mich. 1995); United States v. Brown, 891 F. Supp. 1501 (D. Kan. 1995); State v. Riker, 869 P.2d 43 (Wash. 1994)(declining to discard Frye standard in favor of Daubert standard); Hill v. State, 507 So.2d 554 (Ala.Cr.App. 1986) (applying Frye standard, ruling testimony inadmissible; Ex parte Hill, 507 So.2d 558 (Ala. 1987) (dictum).{/footnote} It has also been held admissible to prove nonconsent where sexual assault is charged.{footnote}State v. Ciskie, 751 P.2d 1165, 1170 (Wash. 1988).{/footnote} It has also been held admissible to establish that a killing was intentional and not the product of insanity.{footnote}State v. Baker, 424 A.2d 171 (N. H. 1980).{/footnote}

It has been held impermissible for an expert to testify that the victim suffers from BWS,{footnote}Arcoren v. United States, 929 F.2d 1235, 1241 (8th Cir. 1991), cert. denied, 502 U.S. 913 (1991); State v. Bednarz, 507 N.W.2d 168, 171 (Wis. Ct. App. 1993).{/footnote} but permissible to testify that her behavior is consistent with that of abuse victims.{footnote}State v. Bednarz, 507 N.W.2d 168, 171 (Wis. Ct. App. 1993).{/footnote} The expert may not comment on the victim’s truthfulness.{footnote}People v. Christel, 537 N.W.2d 194, 201 (Mich. 1995).
But see Ibn-Tamas v. United State, 407 A.2d 626 (D.C.1979)(admissible to show defendant’s credibility).{/footnote}

It is unsettled whether a defendant has a right to compel the prosecution to either have the victim submit to a psychiatric evaluation by a defense expert or abandon the issue of BWS.{footnote}See Gilpin v. McCormick, 921 F.2d 928 (9th Cir. 1990)(table disposition affirming refusal to require victim to submit to examination and finding no violation of due process or Confrontation Clause).{/footnote}

3. Defense Use of Expert Testimony

3(a). Self-Defense

The majority of state courts have held that expert testimony as to BWS is admissible on behalf of a female defendant claiming that she acted in self defense to explain why the defendant remained in an abusive relationship and that she reasonably believed she was in imminent peril of suffering death or serious bodily injury danger.{footnote}Md. Code Ann. § 10-916 (1996); Ex Parte Haney, 603 So. 2d 412, 414 (Ala. 1992); People v. Aris, 215 Cal.App.3d 1978, 264 Cal.Rptr. 167 (1989); Ibn-Tamas v. United State, 407 A.2d 626 (D.C.1979); Hawthorne v. State, 408 So.2d 801 (Fla.Ct.App.1982); Chapman v. State, 258 Ga. 214, 367 S.E.2d 541 (1988); Smith v. State, 277 S.E.2d 678 (Ga. 1981); People v. Minnis, 455 N.E.2d 209 (Ill. App. 1983); State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986), over’d on other grounds, State v. Stewart, 243 Kan. 639, 763 P.2d 572 (1988); State v. Hundley, 236 Kan. 461, 693 P.2d 475 (1985); Commonwealth v. Rose, 725 S.W.2d 588 (Ky.1987), over’d in part, Commonwealth v. Craig, 783 S.W.2d 387 (1990); State v. Anaya, 438 A.2d 892 (Me. 1981); Banks v. State, 608 A.2d 1249 (Md. App. 1992) (applying Md. Code Ann. § 10-916 (1996)); State v. Hennum, 441 N.W.2d 793 (Minn.1989); State v. Williams, 787 S.W.2d 308 (1990); State v. Clay, 779 S.W.2d 673 (Mo.App.1989) (applying statute); State v. Kelly, 478 A.2d 364, 377‑78 (N.J. 1984); State v. Gallegos, 719 P.2d 1268 (N.M. 1986); People v. Torres, 128 Misc.2d 129, 488 N.Y.S.2d 358 (1985); State v. Leidholm, 334 N.W.2d 811 (N.D.1983); State v. Koss, 551 N.E.2d 970 (Ohio 1990); Bechtel v. State, 840 P.2d 1, 9 (Okla. Crim. App. 1992); State v. Moore, 695 P.2d 985 (Or. 1985); Commonwealth v. Stonehouse, 555 A.2d 772 (Pa. 1989); State v. Hill, 339 S.E.2d 121 (S.C. 1986); State v. Furlough, 1990 WL 70068, 1990 Tenn. Crim.App. LEXIS 293 (Apr. 10, 1990); Fielder v. Texas, 756 S.W.2d 309 (Tex. 1988); State v. Ciskie, 751 P.2d 1165 (Wash. 1988); State v. Allery, 101 Wash.2d 591, 682 P.2d 312 (1984); State v. Steele, 359 S.E.2d 558 (W.Va.1987).
See also Cal. Evid. Code § 1107(a) (1996):

In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women’s syndrome, including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.
But see Mullis v. State, 282 S.E.2d 334, 337 (Ga. 1981) (trial court properly excluded testimony "where the testimony sought to be admitted related to the reasonable fears of a defendant which could be comprehended by the average juror . . . ."); Buhrle v. State, 627 P.2d 1374, 1378 (Wyo.1981) (inadmequate foundation laid for testimony).
Contra Hill v. State, 507 So.2d 554 (Ala.1986) (dicta); Fultz v. State, 439 N.E.2d 659 (Ind.App.1982); State v. Necaise, 466 So.2d 660 (La.App.1985); State v. Thomas, 423 N.E.2d 137, 139‑40 (Ohio 1981); State v. Felton, 318 N.W.2d 25 (Wis. App.1981), aff’d in part, rev’d in part, 329 N.W.2d 161 (Wis. 1983); {/footnote} By invoking BWS, however, it has been held that the defendant waives her Fifth Amendment right to refuse to submit to a psychiatric examination by a prosecution expert.{footnote}State v. Hickson, 630 So. 2d 172, 176 (Fla. 1993).
Contra Unites States v. Marenghi, 893 F. Supp. 85 (D. Me. 1995); United States v. Bell, 855 F. Supp. 239 (N.D. Ill. 1994).
CHECK United States v. July, No. 90-10457, 1992 WL 57428 (9th Cir. 1992).{/footnote}

3(b). Sentencing

Expert testimony as to BWS has been held properly considered at sentencing to establish that other unchsarged criminal acts were engaged in by the defendant under duress.{footnote}United States v. Johnson, 956 F.2d 894, 899 (9th Cir. 1992)(female defendant’s conviction for selling drugs remanded for resentencing based in part on expert testimony as to Syndrome).{/footnote}

3(c). Exclusion as Constitutional Error

The exclusion of expert testimony as to BWS on behalf of the defense in a criminal case has been held not to violate the Compulsory Process Clause.{footnote}Tourlakis v. Morris, 738 F. Supp. 1128, 1137 (S.D. Ohio 1990); Fennell v. Goolsby, 630 F. Supp. 451 (E.D. Pa. 1985).
Contra Thomas v. Arn, 728 F.2d 813, 815 (6th Cir. 1984), aff’d, 474 U.S. 140 (1985)(Jones, J., concurring).{/footnote} See also COMPULSORY PROCESS CLAUSE.

4. Foundation for Expert Testimony

Expert testimony has been held admissible despite the fact that the expert never treated the subject,{footnote}Hawaii v. Cababag, 850 P.2d 716, 719 (Haw. Ct. App. 1993); People v. Christel, 537 N.W.2d 194, 202 n.25 (Mich. 1995).{/footnote} and would not be in a position to opine as to whether she had been battered without treating her.{footnote}People v. Christel, 537 N.W.2d 194, 205 (Mich. 1995).{/footnote}

Bibliography

Ola W. Barnett & Alyce D. Laviolette, It Could Happen To Anyone: Why Battered Women Stay (1993).
Angela Browne, When Battered Women Kill (1987)
Cynthia K. Gillespie, Justifiable Homicide: Battered Women, Self‑Defense, And The Law (1989)
Annot., Admissibility of Expert or Opinion Testimony on Battered Wife or Battered Woman Syndrome, 18 A.L.R.4th 1153 (1982).
Regina A. Schuller & Neil Vidmar, Battered Woman Syndrome Evidence in the Courtroom: A Review of the Literature, 16 Law & Hum. Behav. 273, 277 (1992)
David L. Faigman, The Battered Woman Syndrome and Self‑Defense: A Legal and Empirical Dissent, 72 Va. L. Rev. 619, 633, 642 (1986)
Walter J. Gleason, Mental Disorders in Battered Women: An Empirical Study, 8 Violence & Victims 53 (1993)
Donald G. Dutton & Susan Painter, The Battered Woman Syndrome: Effects of Severity and Intermittency of Abuse, 63 Am. J. Orthopsychiatry 614 (1993).
Cynthia L. Coffee, Note, A Trend Emerges: A State Survey on the Admissibility of Expert Testimony Concerning the Battered Woman Syndrome, 25 J. Fam. L. 373, 396 (1986)

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