Editor’s Note: In this post, Moksha Kothari argues for the inclusion of export testimonies in instances of domestic retaliatory violence. It is argued that an expert can help judges better understand the psychological impacts of prolonged domestic violence that often results in retaliatory actions.
When gender was still a binary concept, men and women, in a patriarchal society were allotted certain roles and responsibilities to be fulfilled flawlessly. While men were to protect the family from the evils outside the house, women were confined to homes and given the role of raising the family. This role of men outside started creeping inside the house as men assumed the power to ‘chastise waywardly women of the house’. They were bequeathed with the power of using force to maintain the ‘chastity’ of their wives, and ‘keep them in line’. Thus, for a very long time, ‘domestic violence’ was state-sanctioned use of force to maintain order in the family designed to maintain society’s status quo. Over time, these ‘protectors’ turned into an evil that the family needed safety from.
With the advent of the Second Wave of Feminism in 1960s, the world saw a new revolution where women fought for their socio-legal rights and highlighted the various forms of violence they face. These rights were recognized internationally in the year 1979, when the Convention of Elimination of Discrimination Against Women [“CEDAW”] was adopted by the United Nations. However, this joy was short-lived as the countries only enacted half-hearted legislations to deal with violence against women. While India ratified the CEDAW in the year 1993, a legislation dealing with domestic violence was passed only in 2005 with the Protection of Women from Domestic Violence Act. However, not only has this Act failed to provide a better life for ‘battered women’, it does not even contemplate women engaging in retaliatory violence.
In this paper, the author elucidates retaliatory violence by “battered women” and enumerates the need for expert evidence for the applicability of the Battered Woman Syndrome in the Indian Judicial System.
The “Battered Woman Syndrome”
For years’ courts around the world excluded battered women who killed their husbands from the category of spousal homicides, which were considered ‘crimes of passion.’ This meant battered women often faced harsher punishments for their crimes. This prompted American Psychologist Dr. Lenore Walker to formulate the Battered Woman Syndrome, which is now categorized under Post Traumatic Stress Disorder. She enumerated three distinct phases that affect “battered women”, i.e. the tension-building phase, the acute battering phase, and the love contrition phase, which are collectively known as ‘The Walker Cycle’. While the third phase marks the tendency of women to stay in the relationship with a hope that someday things might become better, the occurrence of this cycle throughout the marital life leads to the development of ‘learned helplessness’. Here, the women feel they are devoid of the ability to remove themselves from the toxic situation. The continuous psychological impact, it is argued, should force the courts to consider the special circumstances under which a homicide is committed rather than only applying the law. This was first done in India in 1978 in the case of Manju Lakra vs State of Assam.
There, the accused was a woman who bore the brunt of her alcoholic husband’s violent tendencies. During one such altercation, she snatched a piece of wood in his hand and beat him to death. Purely based on the law at the time, she would have been guilty of culpable homicide amounting to murder. However, the Guwahati High Court recognised her plight as a ‘battered woman’ and found no mens rea. Hence, the court convicted the accused for culpable homicide not amounting to murder and sentenced her to five years’ imprisonment.
The Court was of the opinion that exception 1 to Sec. 300 of the Indian Penal Code [“IPC”], i.e. ‘grave and sudden provocation’, was applicable to this case as the deceased’s previous conduct of domestic violence was provocative enough for the accused to take such a step. The Court referred to Dr. Walker’s ‘Battered Woman’s Syndrome’, while enumerating the reasons some women retaliated instead of simply leaving the household.
While hinting at the need for gender-neutral jurisprudence, the court listed various precedents in which courts have charged a husband for manslaughter and not homicide because of the previous ‘promiscuous conduct of the wife’. The Court stated that under Sec. 304B of the IPC, in cases of incessant abuse, one cannot consider aggression by a woman to be an improbable reaction as opposed to suicide.
The Need for Expert Testimony on Battered Woman Syndrome
While the Guwahati High Court is to be lauded for its understanding of the Battered Woman Syndrome, it is pertinent to note that the facts of this decision were limited to the traditional interpretation of “grave and sudden provocation” which excludes ‘sustained provocation’. In several cases of spousal homicide, the wife may commit the crime only after a significant interval from the most recent provocation.
This was seen in the cases of R vs Alhuwalia and R vs Duffy,where the accused-wives killed their husbands when they were asleep. While rejecting the interpretation of ‘sustained provocation’, the Guwahati High Court has in a way rejected the principle of a ‘series of act forming the entire period of provocation’ laid down in the abovementioned English cases as the traditional interpretation cannot fit within its ambit cases of this nature. This problem, to some extent, can be remedied using expert witness/expert testimony.
The importance of expert testimony in understanding the Battered Woman Syndrome is perhaps best laid down by the District of Columbia Court of Appeals in the case of Ibn-Tamas vs United States District of Columbia. There, Dr. Walker was called to give her opinion on the behaviour of the wife. The defence used her testimony to suggest that the accused was not in ‘self-control’ while committing the act and that this temporary psychological impairment was due to a strained marriage which was full of violence.
Further, in the case of State vs Smith, the Georgia Supreme Court further emphasised the need for expert testimony where a battered woman was accused of killing her boyfriend. Relying on the Federal Rules of Evidence, the court stated that an expert opinion was needed when jurors need to draw a conclusion based on matters not in their ordinary experience. The Supreme Court of Canada was also of the opinion that the admissibility of expert testimony would help in debunking the myth that battered women are masochistic and making the courts more empathetic towards their plights. The court added that the testimony will also aid the jurors to understand the reasonability of a battered woman’s perception that there is an imminent threat of death or grievous hurt even though it may not appear prima facie. Further, in an experiment conducted on 200 jurors, researchers Regina A. Schuller and Sara Rzepa concluded that the jurors were more likely to reduce the punishment/acquit a battered woman when provided with an expert testimony to understand the behaviour of the victim.
Expert testimony or expert witness under Indian Criminal Jurisprudence is mentioned under Section 45 of the Indian Evidence Act, 1872. The section lays down the categories under which the Court may call upon an expert in the field to submit the opinion based on a question of fact in the furtherance of justice. Section 45 (b) particularly deals with instances in which the ‘state of mind’ of the accused while committing the crime needs to be ascertained. The opinion of the expert is used to determine whether the symptoms that the accused is exhibiting indicate the incapability of the accused’s understanding of the nature and consequences of the act being committed. The foremost pre-requisite for calling an expert is that the subject-matter falls outside the scope of the experience of the layman.
Forensic psychologists in India assist the court in determining the mens rea in a case through a series of assessments and interviews of the suspect. Forensic psychologists are experts in the field of human behaviour and are trained to see the psychological damage that the domestic violence has caused on the accused which may be outside the ordinary experience of the male-dominated judiciary of the country.
With significant amendments, the legislature has tried to bring the colonial-era IPC at par with today’s society. However, the Act has been criticized by experts for not taking into consideration the experiences of the minorities, especially women. The traditional interpretations of the exceptions of insanity and self-defence by the Courts does not take into consideration the lived experiences of a woman. This is the reason a man’s punishment for homicide of his unfaithful wife and her lover is considered to be grave provocation however, battered women who retaliate fall under none of the defences provided under Code. Therefore, the interpretation depends on the empathy and understanding of the judge towards the victims of domestic violence. While it cannot be expected that the legal system will change overnight, expert testimony will aid in bringing out to the forefront the psychological damage that a survivor of domestic violence goes through.
Recently, the Delhi High Court used the Battered Woman Syndrome to convict an abusive husband of ‘abetment to suicide’ after the death of his wife. However, Dr. Walker’s theory is not full-proof. Experts have raised concerns regarding the categorization of battered women as mentally unfit which may further jeopardize their place in society. Additionally, the association of certain traits with its victims leads to the framing of an ‘ideal victim’ rather than focusing on the domestic violence. Nonetheless, Dr. Walker’s theory has brought about a much-needed change in criminal justice jurisprudence around the world.
*Moksha Kothari is a final year student from NMIMS Kirit P Mehta School of Law.