Fact Sheets

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Did you know that...? | Incarcerated Survivors

What's wrong with the term ‘Battered Woman Syndrome Defense’?

Dear [journalist]:

Thanks for writing such a great article in the [X newspaper, date] on battered women in prison. I have cut it out and sent it to a woman doing time at VSPW, where Brenda Clubine is apparently starting a new group for battered women incarcerated for crimes related to domestic violence. I was the expert witness for three of these women who are now at VSPW, as well as for other women who are now free.

However, there is one sentence in the article with which I disagree. You talk in the [...] paragraph about "battered woman syndrome" being "permitted as a defense." The term battered woman syndrome is very problematic, and many of us domestic violence experts have long ago stopped using the term. In fact, the Ca. Alliance Against DV submitted an amicus brief in People v. Evelyn Humphrey, the only Ca. Supreme Court case to deal with this issue; in that 1996 decision, the high court cites our brief in footnote 3, noting the many reasons that the term "BWS" is very problematic.

And the National Institute of Justice issued a lengthy report in 1996 which strongly recommended doing away with this term, as it is too monolithic, implying that all battered women have the same response to the abuse. It also implies that battered women are crazy, reinforcing old and incorrect stereotypes. Instead, the NIJ recommended that we talk about "battering and its effects."

Along the same lines, Ca. Evidence Code 1107, which includes the term "battered woman syndrome" was amended in 2000 to add subdivision (e). This subdivision states that from now on this code section shall be known as the Expert Witness Testimony on Battered Women's Experiences Section of the Evidence Code. The legislative history for this change, which can be found at www.leginfo.ca.gov, explains some of the problems with "BWS" terminology. In spite of this change, some of my colleagues still face judges who insist that they testify about "BWS" and have disqualified them because they are not willing to testify about this "syndrome." (Perhaps you could write about this problem in another Chronicle story.)

Furthermore, there is no "BWS defense." Evidence of domestic violence can be relevant to many defenses, including self defense (perfect and imperfect), duress, the issue of imminence, etc. However, it never has been and never will be a defense in and of itself. People who have heard that it is a defense usually react negatively, believing that battered women are saying that because they were beaten, they had a right to kill the batterer. This of course is not true, and can create a backlash against battered women who commit crimes where the domestic violence was in fact relevant to a traditional defense.

So in the future I hope that you will use "battering and its effects" or "expert testimony about domestic violence" instead of "BWS." Additionally, I hope that you will not imply that domestic violence evidence is a defense to murder or any other crime.

Thank you again for writing about this topic.

Sincerely,

Nancy K. D. Lemon, J.D.

Lecturer, Domestic Violence Law, Boalt Hall School of Law,
Member, Board and Policy and Research Committee of Ca. Alliance Against DV
Steering committee member, Ca. Coalition for Battered Women in Prison
Expert Witness and Consultant