A Right to Kill for Women: Battered Woman Syndrome and Law

battered woman syndrome

By Akansha Chaudhary


‘One is not born, but becomes a woman’ [1], the phrase by Simone de Beauvoir presented the difference between sex and gender. It simply provided an insight that an individual is born with certain genitalia thereby referring to our ‘distinct physiologies’ [2] whereas gender refers to our ‘learned identity’ [3] as portrayed by the society. The societal norms attributed under the terminologies of masculinity and femininity tend to operate on extreme ends. As provided by Ann Oakley that the portrayal aims to validate the notion of the personality of the two sexes flowing from their biological differences [4].

A ‘real man’ [5] retains the title of a superior being with the power to conquer the world and holds a position of a breadwinner of the family. He is brave, an extrovert with confidence in his actions and endowed with the ability to manipulate his surroundings. A woman is a damsel in distress, to be restricted within the private sphere of a house. She is ‘introverted and domesticated and emotionally labile’ [6]. The
assignment of the respective gender roles relying on patriarchal notions tends to create power relations where the former holds a superior position whereas the latter holds an inferior one [7].

To nullify the defiance of power dominance, a relationship often takes a gruesome turn of physical, sexual and psychological abuse experienced by women at the hands of their partners. This ‘battering behaviour’ [8] was not paid much heed in the private sphere. Often women would bear the abusive behaviour due to their social standing, pressure to uphold the relationship and their economic dependence. However, some battered women retaliate against their abusers to end the suffering and there have been some cases where women have killed their partners as the last resort due to the absence of necessary support and no means of escape [9].

The current criminal judicial system has remained uncertain regarding the inclusion of ‘Battered Women Syndrome’ (BWS) as a defence particularly for homicide due to its technicalities and the inclusion of mental health however, the existing defences by the judicial system remain inadequate for their implementation as they are broadly based on male experiences thereby disregarding the experience of women as provided by Sarah Tarrant. [10]

Therefore, this paper aims to ascertain whether the recognition of Battered Woman Syndrome in law provides women with an undisputed right to kill or whether it takes into consideration the position of women in gendered power relations?

What is Battered Women Syndrome (BWS)?

Battered Women Syndrome is a descriptive terminology used to classify the actions and reactions of women who have been constantly abused by their partners or spouse [11]. The research conducted by Dr. Leonare E. Walker concluded that the definition of a battered women refers to a woman, married or unmarried in an intimate relation with their partners who has perpetually faced physical and psychological abuse by her partner in order to coerce her into fulfilling his wants and needs while disregarding her rights endowed upon her as an individual. She believes that she has no control over her batterer’s behaviour. Dr. Walker provided a cycle which perpetually takes place consisting of three stages in the respective cases [12].

The first stage of ‘tension building’ [13] consists of minor episodes of negative reactions. This includes small actions which can be resolved by an apology such as the partner raising his voice and then apologising. At this stage, a woman aims to ensure that her actions do not result in any adverse reaction thereby putting his needs over hers and remaining complacent to pacify his moods. An increase in the degree results in the second stage, ‘acute battering incident’ [14] where a woman is subjected to violent physical abuse and the third stage refers to a ‘period of concrite’ [15] where their partners tend to portray that all the incidents which took place was merely because they lost control otherwise. He constantly asks for forgiveness, showers her with presents and kindness. Therefore, the behaviour and the mood of the partner oscillates from a loving behaviour to a monstrous one and vice versa [16].

It also provided for the inclusion of the theory of ‘learned helplessness’ [17]. As a result of the violence, battered women believe that there is no scope of putting an end or reducing this torture and they live in a constant state of fear. Since the woman still faces extreme abuse despite of her efforts of preventing it, this leaves her with the outlook of no escape [18]. This does not render the feeling of helplessness by the battered limits her responses to only such actions which will protect her. The fear instilled in women by their partners through death threats and beating as a consequence refrains the women from running away or seeking help [19].

The inclusion of factors such as the societal norms upholding the value of marriage, financial dependence on their abuser and the inadequacy of the present remedies for battered women. In the absence of means of escape, women tend to adopt survival techniques which are confused with provocation. To break free from the cycle in order to protect herself and her sanity, a woman may strike back which in some cases may result in injury and in rarity of cases in death of their partners [20]. The commonly adopted defence by the battered woman is self-defence as the act is in retaliation of acts conducted by her partner and in order to protect herself [21].

However, there are two criteria which compromise the application of this defence which is the reasonable apprehension of imminent danger or grievous bodily harm and the delay in reactions. Another aspect relates to the different intensity of reactions thereby giving rise to the different scenarios of a woman injuring her partner whereas a woman killing her partner as self- defence requires the force used for retaliation to be reasonable [22].

This disregards the nature and the acts of violence which a battered woman has to endure. However, a frequently asked question during the evaluation of the actions of the respective women is why doesn’t she leave, why did she have to adopt a route which violates the law or why doesn’t she just get a divorce?

Status of women in the private sphere and the answer to “why doesn’t she just leave?”

One of the most prominent reason for a woman not leaving is her social position in a patriarchal society [23]. The supremacy of the man as the head of the family and with the liberty to control the lives of his wife and children provides him with undue power and authority [24].

As aforementioned by Ann Oakely, the classification of man or woman automatically associates the individuals with the stereotypical personality constructed by the society including an assignment of a particular manner to conduct themselves and the roles which they need to adopt. [25] These habits are not biologically present but culturally acquired right from their treatment upon birth and till their adulthood [26]. The society showcases an obvious preference of sons over daughters as showcased by the multitude cases of female infanticide, in 2016, Asian Centre for Human Right stated that there are 1.5 million female foetuses being aborted every year [27].

Another criteria adopted for determining the sex differences which although not absolute is aggression [28]. Parental upbringing plays an important role in classifying the boys as rowdy and girls as sensitive. The passive behaviour of a boy is discouraged as it is expected from them to immediately retaliate whereas the aggressive behaviour of a girl is discouraged as it destroys the stereotypical image of a sensitive being [29].

The ignorance of the actions during childhood results in men exercising that aggression as a means to asset dominance. Ann Oakely also provided that women tend to feel guilty and experience anxiety rather than anger which can be the result of their upbringing to fit into the sex roles [30]. The role endowed upon the woman by the society makes it difficult for her to leave when faced with brutal physical and psychological violence.

The representation of the two sexes also decides division of labour 31 which an individual can adopt therefore, the bold men finds employment in blue collared jobs whereas the fragile woman takes up domestic work or employment associated with teaching, caretakers and so on which bars the prospect of economically independent women as different types of jobs entail different amount of income [32].

In some cases, the batterer exercises authority by disallowing his wife from working and where a woman does work, there is a deliberate attempt to sabotage her work performance [33]. As provided by a 2014 report established by U.S. Department of Justice, violent partners would threaten if they continued their jobs, harass them by coming to their workplaces and physically prevented them from leaving by increasing the intensity of the physical abuse thereby resulting in frequent absenteeism [34].  The psychological effect as the aftermath also affected their employment as it resulted in low self- esteem and being ‘overly emotional and anxious’ [35].

The society also portrays a connection between ‘reproductive and economic tasks.’ [36] The role of a woman to bear a child in order to continue the lineage serves as a frequently used argument in order to bar the women from entering economically favourable jobs. It is assumed that since, a woman eventually has to embrace motherhood, there is no need for her to work to just to leave the job in order to tend to her children [37]. The entire burden and the difficulties of bringing up a child is imposed on the woman in terms of motherhood thereby completely disregarding the existence of fatherhood which is equally necessary [38].

Then there is the argument of the difference in physical strength and energy between a man and a woman
to carry out the tasks thereby providing that the domestic work suits a woman as it requires less strength which results in minimum exertion [39]. This doesn’t stand much ground as woman have replaced men during wars to perform the manual labour or fight the opponents and in the current times employment requires intellect. The culmination of all these factors creates an economic dependency of women on their partners thereby forcing them to stay with their batterers.

Another aspect to be taken into consideration is the inadequacy in the external support and the mode of redressal. The formulation of policies and legislations fail to consider women upon the respective headings as they have never been participated in this sphere [40]. The inclusion is barred on the account that a woman is a private being therefore, the addition of her experience is not required in formulating general laws [41].

The division of private and public sphere allows often allows violence by men without any repercussions [42]. The reliefs provided by the Criminal Justice System are not sufficient. Even when a woman approaches the court in the initial stages, the orders provided by the courts are not effective or adequately implemented.

In Regina v Kiranjit Ahluwalia [43], the court granted three injunctions to the abused wife. The first was granted in 1983, till that time the violence recorded by the court provided that the husband had hit her head three to four time with a telephone and had pushed her while she was pregnant that resulted in her injuring hand. The second injunction was issued when the accused held her neck and threaten her with a knife. Regardless of the court orders, the abuse continued as he again threatened to kill her and poured hot tea all over her and eventually it intensified. Kiranjit Ahluwalia set her husband on fire not with the intention to kill but to scare her husband in order to prevent her suffering [44].

Focusing on the respective case, the victim did approach the court for aid however, she still had to face continuous torture. The prominent defences of self-defence and provocation do not fit the experience of women as the legal system is dominated by men therefore, the question which arises is whether the battered woman syndrome can be use as a legal defence in such circumstances in order to comprehend the physical and mental sufferings of the victim justly?

Will Battered Woman Syndrome as a defence give women undisputed right to kill or will it provide a standing for women’s experiences?

Focusing on the battered women that kill, the two primary defences adopted are self-defence and provocation [45]. The legal principle of self- defence requires the fulfilment of certain ground. It provides that the person who acts is retaliation must be faced with imminent threat of death or serious bodily harm, the use of deadly force must be necessary in order to avoid or prevent such harm and the intensity of the force or action must be proportional [46]. The same is determined through the test of a reasonable man [47]. This defence holds good when a woman kills her batterer during an acute battering incident as there is imminent danger to her life due to acts of her batterer.

The nature of her relationship and the occurrence of the abuse in the past will serve in her favour as provided in State v. Wanrow [48], that the facts and the circumstances faced by the defendant before the killing are admissible. This also creates an apprehension that the same conduct can take place again.

However, this defence does not include battered women who killed their partners in their sleep or when one was not looking. Therefore, the assumption or certainty that she killed her partner because there was certainty that he would abuse her in the future will not come under the ambit of self-defence [49]. As provided in State v Patri [50] where a woman who was perpetually abused by her husband shot him in the back after a heated argument. She was convicted of manslaughter and the defence of self-defence did not stand as there was no imminent danger.

Another defence adopted is that of provocation which requires the loss of self-control to be ‘sudden and temporary’. In Duffy [51], the court provided that the actions of the past alone and the need for revenge for the sufferings will not constitute provocation. As the delay in action gives rise to deliberate intention to kill [52]. However, in Ahluwalia [53], the court provided that the delayed reaction cannot serve against the defendant who has undergone constant abuse however, there should be sudden and temporary loss of self-control at the time of killing. It constituted the syndrome as a partial defence to provocation and accepted the ground of diminished responsibility [54].

BWS was introduced in the legal system has been as a sub-topic of post-traumatic stress disorder through the option of introduction of an expert psychological or psychiatric testimony [55]. The coexistence of a psychological aspect with the defences provided by the law provides the inclusion of the hardships faced by women. Psychological arguments provide specific reasoning regarding the behaviour of an individual and answers as to why that individual is not responsible for his or her actions [56]. The testimony aims to introduce the syndrome and its effects in order provide reasons as to why did the battered woman kill or
her reasons for not leaving her partner [57].

Psychologists believe that such testimonies play a vital role as it helps in justifying the defence of self-defence which is frequently used. This would help the jury or the judge understand the state of mind and the reasonableness of the imminent danger faced by the defendant and add credibility to her experience in case of no evidence or witnesses [58]. Elizabeth Schnieder provided that the inclusion of psychological
effects as evidence with the abused faced by the defendant in the past can be useful in justly determining the outcome of a case in a ‘male-model of self-defence’ [59].

However, this has also created an adverse impact as the court allow the psychological testimony in order to define concrete grounds to fit the ambit of battered woman and the ones which do not are judged by the standard of ‘reasonable man’ [60]. This again excludes women from the legal sphere as each individual suffers from different scenarios. Lavelle v. Lavelle [61] also excluded the argument of a woman not leaving the house upon the torturous treatment as void and contended that she could plead self-defence.

There is no existence of the syndrome as an independent defence as there is still ambiguity amongst the psychologists as they unanimously do not concur the existence of the three stages [62]. Courts also contend that the inclusion of the syndrome will adversely affect the judiciary from convicting women as the defence of BWS will be exercised indiscriminately thereby providing women with the freedom to kill [63]. Such arguments deviate from the purpose of inclusion of BWS, which is the inclusion of the experience of woman in the pre-existing framework which could not have been presented on the reasons of discriminatory social and cultural norms [64].

Currently, this is the only means provided to the woman to justify her actions based on her circumstances which were involuntarily imposed upon them therefore, the defendant in such cases should be judged upon on the basis of the relationship, the batterer and the society [65].


The law may not discriminate women expressly however, it does so by formulating frameworks from which the social reality of women is excluded. BWS does not provide women with an undisputed right to kill but with a means to present the events which led to the final result. The Criminal Justice System requires ramifications in order to include and comprehend the social status of a woman in the society and to amend the framework accordingly [66].  The elements of the current defences aim to silence the torture faced by women rather than adjudicating upon it justly [67].

Currently, the modes of self-protection for a woman come under the ambit of pre-meditated and the abuse inflicted on them by their partners as ‘chastisement and right’ [68]. BWS does look into the disadvantages position of a woman however, it is not sufficient. The most effective step would be the formulation of BWS as a separate defence to directly counter such cases.


  1. Judith Butler ‘Sex and Gender in Simone De Beauvoir's Second Sex.’ (1986) Yale French Studies, no. 72, pp. 35–49<JSTOR, www.jstor.org/stable/2930225> accessed 12 December 2020.
  2. ANN OAKLEY ‘ Sex, Gender and Society (Towards a New Society)’ (1972) (First published by Maurice Temple Smith Ltd in 1972)
  3. Ann (n 2)
  4. Ann (n 2)
  5. Ann (n 2)
  6. Ann (n 2)
  7. Diana Koester ‘Gender and power: six links and one big opportunity’ (2015 )<https://www.dlprog.org/opinions/gender-and-power-six-links-and-one-big-opportunity#:~:text=Inequalities%20between%20men%20and%20women,quiet%2C%20obedient%2C%20accommodating)> accessed on 12 December 2020
  8. Lenore E. Walker ‘Who Are the Battered Women?’ (1977) Frontiers: A Journal of Women Studies, vol. 2, no. 1,, pp. 52–57. JSTOR&lt; www.jstor.org/stable/3346107&gt; accessed 12 December 2020.
  9. Donileen R. Loseke and Spencer E. Cahill ‘The Social Construction of Deviance: Experts on Battered Women.’ (1984) Social Problems, vol. 31, no. 3, pp. 296–310. JSTOR <www.jstor.org/stable/800443>; accessed 12 December 2020.
  10. Stella Tarrant ‘SOMETHING IS PUSHING THEM TO THE SIDE OF THEIR OWN LIVES1 A FEMINIST CRITIQUE OF LAW AND LAWS’ (1990) <http://www.austlii.edu.au/au/journals/UWALawRw/1990/28.pdf>; accessed on 12 December 2020
  11. Regina A. Schuller and Neil Vidmar ‘Battered Woman Syndrome Evidence in the Courtroom: A Review of the Literature.’ (1992) Law and Human Behavior, vol. 16, no. 3,pp. 273–291. JSTOR, www.jstor.org/stable/1394072. Accessed 12 Dec. 2020.
  12. Walker (n 8)
  13. Walker (n 8)
  14. Walker (n 8)
  15. Walker (n 8)
  16. Walker (n 8)
  17. Walker (n 8)
  18. Regina (n 11)
  19. OLA W BARNETT ‘WHY BATTERED WOMEN DO NOT LEAVE, PART 1: External Inhibiting Factors Within Society’ (2000) Trauma, Violence &amp; Abuse, vol. 1, no. 4, pp. 343–372. JSTOR <www.jstor.org/stable/26636286>; accessed 12 December 2020.
  20. Walker (n 8)
  21. Charles Patrick Ewig ‘Psychological Self-Defense: A Proposed Justification for Battered Women Who Kill.’ (1990) Law and Human Behavior, vol. 14, no. 6, pp. 579–594. JSTOR <www.jstor.org/stable/1394137> accessed 12 December 2020.
  22. Stella (n 10)
  23. Ola (n 19)
  24. Ola (n 19)
  25. Ann (n 2)
  26. Ann (n 2)
  27. WUNRN ‘Female Infanticide – Study – Country Data’ (2016) <https://wunrn.com/2016/07/female-
    infanticide-study-country-data/>; accessed on 12 December 2020
  28. Ann (n 2)
  29. Ann (n 2)
  30. Ann (n 2)
  31. Ann (n 2)
  32. Ola (n 19)
  33. Ola (n 19)
  34. Martha Coulter ‘The Impact of Domestic Violence on the Employment of Women on Welfare’ (2004) <https://www.ncjrs.gov/pdffiles1/nij/grants/205294.pdf>; accessed on 12 December 2020
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  36. Ann (n 19)
  37. Ann (n 19)
  38. Ann (n 19)
  39. Ann (n 19)
  40. Stella (n 10)
  41. Stella (n 10)
  42. Susan B. Boyd ‘Can Law Challenge the Public/Private Divide? Women, Work, and Family’ (1996) 15 Windsor YB Access Just 161-185 &lt; https://core.ac.uk/download/pdf/324156975.pdf&gt; accessed on 12 December 2020
  43. R v Ahluwalia [1992] 4 All ER 889
  44. [1992] 4 All ER 889 (n 43)
  45. Stella (n 10)
  46. Rocco C. CIPPARONE, JR.t ‘THE DEFENSE OF BATTERED WOMEN WHO KILL’ (1987) 135 U. Pa. L. Rev. 427  <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi article=3948&amp;context=penn_law_review>; accessed on 12 December 2020
  47. Rocco (n 46)
  48. State v. Wanrow [1978] 91 Wash. 2d 301, 588 P. 2d 1320
  49. Rocco (n 48)
  50. State v. Patri [1980] No. 78-187-CR (Wis. Ct. App. Dec. 19, 1980)
  51. R v Duffy [1949] 1 All ER 932
  52. [1992] 4 All ER 889 (n 43)
  53. [1992] 4 All ER 889 (n 43)
  54. [1992] 4 All ER 889 (n 43)
  55. Ewig (n 21)
  56. Bess Rothenberg ‘We Don&#39;t Have Time for Social Change’: Cultural Compromise and the Battered Woman Syndrome.’ (2003) Gender and Society, vol. 17, no. 5, pp. 771–787. JSTOR www.jstor.org/stable/3594709 accessed 12 Dec. 2020.
  57. Ewig (n 21)
  58. Stella ( n 10)
  59. Stella (n 10)
  60. Stella (n 10)
  61. Lavelle v. Lavelle, 187 A.D.2d 912
  62. David L. Faigman, The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent, 72 (3) VIRGINIA LAW REVIEW, 619-647, 639 (1986)
  64. Ann (n 2)
  65. Michael Dowd, Dispelling the Myths about the ‘Battered Woman’s Defence’: Towards a New Understanding, 19 (3) FORDHAM URBAN LAW JOURNAL, 578 (1991).
  66. Stella (n 10)
  67. Stella (n 10)
  68. Stella (n 10)

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