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BATTERED WOMEN SYNDROME - NEED FOR A LEGAL DEFENSE
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BATTERED WOMEN SYNDROME - NEED FOR A LEGAL DEFENSE
AUTHORED BY
- SHIVIKA GOYAL
Introduction:
The family is meant to be a safe
haven, a loving, nurturing place guided by a moral code of compassion and
selflessness that shields its members from the perils of an authoritarian state
and from the anarchistic incursions of private third parties. But in some
unfortunate situations, the family can cease to be a haven and become instead,
a centre of oppression, raw will and authority, violence and brutality, where
the powerful economically and sexually subordinate and exploit the powerless.
Domestic Violence is not a phenomenon uncommon in India[1]. Women have been facing domestic
violence or intimate partner violence since ages. Even in modern times their
situation has not changed, women continue to suffer violence in their homes. It
may be sexual abuse that she may have witnessed as a girl at the hands of some
elder of her family or domestic/ intimate partner violence at the hands of her
husband. The area of this article is
limited to domestic violence. Women who have been subjected to prolonged
domestic violence may exhibit psychological and behaviour symptoms. The
situation may worsen to such an extent where the subordinate partner
experiences a state of helplessness, when she can’t escape and at the same time
it is not possible for her to live with her batterer, so she may kill the
abusive partner after suffering at their hands. She does this when she finds
herself in a do or die situation, to save her own life she may find killing the
batterer a viable option. While the inadequacies of Protection of Women
from Domestic Violence Act, 2005[2] are often discussed in Indian,
battered women who retaliate are rarely or never mentioned[3].
Battered
Woman Syndrome:
‘‘Battered woman syndrome’’ (BWS) is a psychological theory propounded
by Dr. Lenore Walker to aid in explaining why battered women choose to kill
their batterer instead of simply leaving them[4]. She developed a theory studying the
cycle of abuse known as the ‘Walker Cycle Theory’. A battering relationship
goes through three distinct phases, which are explained by the ‘Walker Cycle
Theory’[5]. The first is the ‘tension building
phase’, during which there are verbal fights between the man and the woman.
This leads to an ‘acute battering incident’, i.e. the second phase, during
which the batterer is overcome with irrational hatred and anger. These two
phases are then followed by a ‘loving contrition’ phase during which the
batterer repents his acts and profusely apologizes, promising to never do it
again. This operates as a ‘positive reinforcement to remain in the
relationship’. However, this is a continuous cycle of violence, which soon
leads to the ‘tension building phase’. This cyclical violence leads to ‘learned
helplessness’, a psychological state of mind introduced by psychologist Martin
Seligman where battered women believe that they are in a helpless situation.
According to the theory of learned helplessness, a woman who experiences
constant abuse may become paralyzed and feel stuck in the relationship for all
time.
When a woman is abused repeatedly in
spite of her best efforts to stop it, she loses all hope of ever being able to
flee because she believes that escape is not possible[6]. It gives her the impression that
the batterer has unlimited power, limits her options for responding, and
eventually the woman's spectrum of reactions to the battering becomes erratic
as it escalates into violence. They stay with their abusers because they
believe they are in a dejected state over which they have no control.
According to Walker, battered women, having no control over their abusive
situation, gradually become passive and believe that it is impossible to
escape, even when escape is objectively a possibility. Thus, ‘learned
helplessness’ coupled with socio-economic and cultural pressures, in India
especially, causes a battered woman to stay in an abusive relationship,
Concept of
Diminished Responsibility:
Battered women sometimes use physical
force to kill their batterers, this may not happen in every case but there have
been cases in India as well as in foreign jurisdictions where women have killed
their batterers. In the United Kingdom in R v Duffy[7] the development started with
recognizing BWS within the category of provocation; labelling it as prolonged
provocation. In this case, the defendant used a hatchet and a hammer to kill
her husband, who had been abused her for a long time, while he was
asleep. During the trial, Devlin J. used the following words, which the
Court of Appeal believed might legitimately be interpreted as a classic
instruction to a jury- “Provocation is some act, or series of acts, done by the
dead man to the accused which would cause in any reasonable person, and
actually causes in the accused, a sudden and temporary loss of self-control,
rendering the accused so subject to passion as to make him or her for the
moment not master of his mind.”[8]
A few years later in the case of R
v Ahluwalia[9], a similar incident took place where
a wife murdered the husband because of torture and suffering. The court
recognized the concept of diminished responsibility and held that that rather
than experiencing an instant loss of self-control, women who have been
repeatedly exposed to violent treatment over time may respond to the last act
or words with what he terms a "slow-burn" reaction. The delayed
response in these situations does not, by itself, negate the subjective part of
the provocation defense, so long as the alleged provocation induced a "sudden
and temporary loss of self-control" at the time of the killing. So, the
concept of diminished responsibility was applied in this case. Nonetheless, the
likelihood of the prosecution claiming negative provocation increases with the
length of the delay and the strength of the defendant's proof of deliberate
actions. Therefore, if a defendant's mental condition significantly hampers
their comprehension of their actions' nature or their capacity to exercise
self-restraint, it could lessen their responsibility for the committed offense.
Indian
scenario:
These women may be charged with a
criminal offense of murder[10]. When women kill their batterer,
they frequently assert that they acted in self-defense rather than denying
their involvement in the crime. In some cases, battered women may claim that
they were insane at the time of the killing or they may take the defense of
provocation. Evidence of BWS may be offered to substantiate the claims of
self-defense, provocation and insanity. Consequently, there is no particular
legal defense known as the "BWS defense"; rather, information
regarding battering and its effects is presented to help the judge decide
whether the defendant is guilty or innocent based on allegations of insanity or
self-defense. It is difficult to fit the BWS in traditional defenses of
self-defense, provocation and insanity. There is a high possibility that the
case may not fit within the available defenses, when the woman was actually in
an abusive relationship. The judgment of the court may vary in each case and
justice may be denied in certain cases.
In the year 2013, in the Manju
Lakra v. State of Assam[11] case, the Guwahati High Court
dismissed murder charges against Manju Lakra, acknowledging that domestic
violence sometimes forces battered women to kill their spouses. Instead, Manju
Lakra was found guilty of culpable homicide[12] that did not qualify as murder.
Manju Lakra was the victim of ongoing domestic abuse in this instance. One day,
she became so tired of the abuse that she grabbed the piece of wood her husband
was using to beat her and struck him. He passed away from his wounds. This
ruling is historic because it represents the first instance in Indian history
of a battered woman killing her partner using provocation as a defense[13]. But this might not be the finding
in every case. Every time such an incident happens, the accused wife will have
to fit her case in the available defenses[14] and if she is not able to do so, she
can be given life imprisonment even when it is not her fault.
Let us examine if the current defense
mechanism given under section 300 Indian Penal Code, 1860 is adequate for
protecting the interested of a battered woman or not.
Defense of
provocation:
Prolonged provocation or a series of
act that constitute provocation has been most commonly used as a defense by
battered women. It is a defense that, in India, lowers the charge of murder to
that of culpable homicide[15]. Feminist scholars have criticized
the Penal Code for following a gendered approach that is in favor of men[16]. The claim is that the definitions
of "imminent attack," "reasonable person," and "grave
and sudden," which are related to the defenses of provocation and
self-defense, were developed without taking into account the viewpoints and
experiences of women.[17] They have in the past reduced the
punishment for murder cases by recognizing the justifications of "sexual
jealousy and injured vanity" and established exclusions for acts of
violence committed by men[18]. Additionally, they have used
"grave and sudden provocation" against males who kill in order to
uphold patriarchal ideas of honor, such as adultery[19]. But its applicability to mistreated
women who react differs dramatically. The use of severe and abrupt provocation
ignores women's reactions, particularly when it comes to domestic abuse. The
defense often leaves out battered women who take revenge after a cooling-off
period because it does not take into account the BWS theory. It is not easy to
fit a women’s case in provocation but the contrary is true for men. This
omission from the creation of laws raises concerns about the law's equality,
legitimacy, and universality.
Defense of
insanity:
The test of insanity as
laid down in M’Naghten case[20] is to demonstrate that the
defendant has a serious mental disorder that prevents them from understanding
the seriousness of the crime. The law distinguishes between "medical
insanity" and "legal insanity," and only "legal
insanity" is taken into account when determining insanity. Therefore,
having a mental illness or having weak intellect and emotions as a result of
medical or mental illnesses is insufficient justification to warrant defense[21]. The stringency of the M'Naghten
criteria is out of sync with current psychiatric knowledge, as there may be
situations in which the accused is aware of the "nature and quality of the
act" but yet commits the act out of an "irresistible impulse" brought
on or not by a mental illness. The Indian Supreme Court, however, limits
insanity to the M'Naghten standards and rejects the "irresistible
impulse" standard. It is a distortion of traumatized women who understand
the nature of the crime and are forced to kill their traumatizers for
their own protection to claim the defense of insanity or irresistible insanity.
They think that because of the serious danger to their life, killing their
partners is the only way to escape the violence. So, it is not possible for a
battered women to claim the defense of Insanity.
Act done in
Self- defense:
It is astonishing that, in spite of
the fact that a battered woman is forced to kill her abusive partner out of
self-preservation or necessity, no such woman has been able to successfully
argue self-defense in an Indian court. In Manju Lakra[22], self-defense is neither discussed
nor debated.
The following four requirements must
be met for a self-defense plea to be accepted[23]: i) The defendant must believe that
they were in immediate risk of unlawful bodily injury; ii) they must use a
reasonable level of force to avert the threatened harm. iii) The defendant
cannot be the aggressor iv) There is no safe haven to withdraw to.
This defense is typically employed
when a defendant feels that they are about to be threatened and reacts by using
physical force to hurt the aggressor. Self-defense is not seen as practical
since the reality of battered women killing their partners does not align with
the conventional understanding of self-defense. For instance, an abused woman
frequently murders her abuser when the violence has finished or when there
doesn't seem to be a threat right away. Additionally, it is argued that killing
her husband does not constitute the use of justifiable force, particularly
after the attack has finished. Additionally, battered women are sometimes
questioned about why they have not left such relationships or why did they not
register a case against their husband.
Path ahead:
It is ample clear that the current
regime of legal defenses in unable to address the issue of Battered Women. She
is hanging by a thread; she doesn’t know if she’ll be able to fit her case in
the existing regime of legal defenses or not. So, it becomes necessary to
create a particular defense that will take into account the situations of
abused women. It would be extremely unjust to punish a woman for the State's
inability to give her sufficient protection, even though there aren't many
Indian women who kill because of abusive relationships. In this case, a
brand-new comprehensive defense could be developed to handle the predicament of
abused women who take the lives of their abusers. Such a defense would have to
be justificatory in nature, reducing the liability of the assaulted lady. In
addition, the language used in the provision should make it apparent that
although it is primarily designed for women in violent situations, men can also
take use of it. Maintaining this standard while providing a comprehensive
defense is necessary to prevent formal gender neutrality from erasing the
reality of domestic abuse victims. Both men and women could be victims of
domestic abuse, though largely in present times it is women. But law must be
forward looking and cater to the needs that might arise in future. Battered
syndrome should be incorporated as a defense in The Indian Penal Code providing
protection to both the genders. Plus, there can be counselling sessions for the
battered women or men in case if any to bring them out of the turmoil and help
them start their life afresh.
Conclusion:
The current defenses are inadequate
when it comes to protecting women’s rights. There is a need of reformulation in
the current regime. The reformulation must focus on removing the male-oriented
nature of defenses and taking into account the experiences of battered women
who respond, as well as why they respond. It is completely irrational to assign
blame of any kind to a woman who acts only to preserve her own life or the
lives of her children in such a situation. But having such a defense does not
imply that a woman has the right to kill. This is merely a preventive measure
to ensure that abusive spouses are discouraged from realizing that women now
have access to legal defense. Focusing on violence and protecting the rights of
the battered women will contribute significantly to challenging the traditional
stereotypes that delegitimize the experiences of women. This will help
‘ungender’ the Indian Penal Code and empower the voices of women who are
systematically excluded. Also, a gender neutral defense in the Penal Provision
will help cater to the needs to battered spouse, whether it is men or women.
Providing them rehabilitation and counselling is equally important.
References-
1. Keerthana
Medarametla, BATTERED WOMEN: THE GENDERED NOTION OF DEFENCES AVAILABLE, 13
(2017), published online at manupatra, http://docs.manupatra.in/newsline/articles/Upload/F1D66902-8FAE-4580-BDB1-479D1768B695.pdf
2. LENORE E.
A. WALKER EDD, The Battered Woman Syndrome, Fourth Edition (2016)
3. Bhumika
Indulia, Whether the Defence of Grave and Sudden Provocation be Applied in the
Cases of Prolonged Provocation, SCC Blog (2022), https://www.scconline.com/blog/post/2022/09/02/whether-the-defence-of-grave-and-sudden-provocation-be-applied-in-the-cases-of-prolonged-provocation/
(last visited Feb 07, 2023).
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(last visited May 17, 2023).
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(last visited Feb 11, 2023).
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Context, (2016), https://papers.ssrn.com/abstract=2819322
(last visited Feb 17, 2024).
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(last visited Feb 15, 2024).
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(last visited Feb 13, 2024).
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[1] Shreya Bhandari & Jennifer C
Hughes, Lived Experiences of Women Facing Domestic Violence in India (2017).
[2] Act no 43 of 2005
[3] Shalu Nigam, Battered Women
Syndrome: Applying This Legal Doctrine in the Indian Context, (2016), https://papers.ssrn.com/abstract=2819322
(last visited Feb 17, 2024).
[5] Explained by Lenore Walker in her
book, The battered Woman Syndrome
[6] Zlatka Rakovec-Felser, Domestic
Violence and Abuse in Intimate Relationship from Public Health Perspective, 2
Health Psychol Res 1821 (2014).
[7] (1949) 1 All ER 932, 935
[8] Findings of Justice Delin in R v
Duffy
[9] (1992) 4 ALL ER 889
[10] Murder defined in Section 300 Indian
Penal Code, 1860 and made punishable under section 302 of the code
[11] Manju Lakra v. State of Assam 2013
SCC Online Gau 207
[12] Defined under section 299 of the
Indian penal code and punishable under section 304
[13] For the first time court
recognised that battered women syndrome can be taken as a defence in murder
case
[14] There are 5 defences recognised in
the Indian Penal Code under section 300
[15] Explanation 1 to section 300-
“When culpable homicide is not murder: Culpable homicide is not murder if the
offender, whilst deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the provocation or causes
the death of any other person by mistake or accident.”
[17] Ved kumari, Gender Analysis of
Indian Penal Code, in Engendering laws: essays in honour of Lokita Sarkar
(Eastern Book Company 1999)
[18] Amruta v State of Maharashtra AIR
1983 SC 629
[19] Raghavan Achari v State of Kerela
AIR 1993 SC 203; K.M. Nanavati v. State of Maharashtra AIR 1962 SC 605
[20] All ER Rep 229
[21] Bapu v State of Rajasthan (2007) 8
SCC 66
[22] 2013 SCC Online Gau 207
[23] Darshan Singh v State of Punjab
Criminal appeal 1057 of 2002
Article Information
BATTERED WOMEN SYNDROME - NEED FOR A LEGAL DEFENSE
Authors: SHIVIKA GOYAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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