No less a victim: a call to Governor Nixon to grant clemency to two Missouri women.

AuthorStallion, Kristen L.
PositionJay Nixon
  1. INTRODUCTION

    Approximately one in three women in the United States will fall victim to domestic violence in her lifetime. (1) In recent years, an intimate partner killed approximately thirty-nine percent of female homicide victims in the United States; (2) an intimate partner only killed 2.8% of male homicide victims. (3) Battered Woman Syndrome ("BWS") has received broad recognition in an effort to help factfinders better understand how battered women perceive their relationships, and opportunities for escape from abuse, as well as reactions to the cycle of violence. Before the introduction of expert testimony regarding BWS was admissible at trial, women who killed their partners were unable to plead self-defense and often pled guilty or claimed an impaired mental state defense. (4)

    Today, the majority of states recognize the necessity of BWS expert testimony and permit expert testimony regarding battering and its effects. (5) Missouri fist codified the use of BWS evidence to bolster a woman's claim of self-defense in 1987 with the passage of Missouri Revised Statutes Section 563.033. (6) Since that time, many women sought to introduce BWS evidence in support of a theory of self-defense. Two of these women included Donna Biemacki and Amelia Bird, Missouri inmates who were unable to present

    BWS evidence in order to mitigate their harsh sentences after killing their abusers. (7)

    While expert testimony regarding BWS should serve as a benefit to battered women, its admissibility is subject to the trial judge's vast discretion and the jury's perception. Several women, like Donna and Amelia, have received harsh sentences for retaliation against their abusers; the BWS testimony that actually was presented on their behalf provided no mitigation. Clemency, an executive power that allows the governor to mitigate disparities in criminal punishment, is a proper exercise of executive discretion to counteract the wrongs of Missouri trial courts. Governor Nixon should grant Donna and Amelia, as well as many unnamed others, clemency for both the judiciary's misunderstanding of the admissibility of BWS evidence and its neglect to treat battered women as victims of domestic violence.

  2. LEGAL BACKGROUND

    While psychologist Lenore Walker first defined BWS in 1979, many courts did not immediately admit expert testimony regarding BWS. (8) Section 563.033 was not adopted until 1987 and was infrequently utilized by trial court judges. Trial court judges' discretion, in turn, led to the need for governors to exercise clemency in order to mitigate battered women's harsh prison sentences.

    1. The History and Recognition of Battered Woman Syndrome

      The theory of BWS was first developed in the late 1970s and early 1980s. (9) The psychological theory is often credited to Lenore Walker, a clinical and forensic psychologist whose book, The Battered Woman Syndrome, coined the term. (10) Walker conducted a large empirical study to identify whether certain patterns or behaviors were present in abusive relationships." Walker was able to identify several common factors in abusive relationships and developed BWS as a means of defining the behavioral traits of women who suffer from continued abuse. (12) Studies regarding BWS and battering relationships have provided an explanation as to why some women choose to remain with their abusive partners. (13)

      In defining BWS, Walker encapsulated the signs and symptoms of 400 women who were surveyed after having been "physically, sexually, and/or psychologically abused in an intimate relationship." (14) Walker's tension-reduction theory identified three distinct phases in the "Cycle Theory of Violence" of battering relationships. (15) The first of these cycles, the "tension-building" phase, occurs when a woman experiences a minimal amount of physical and verbal attacks from her partner. (16) Because she views the attacks as relatively minor, the woman tends to minimize the significance of the attacks and attempts to conciliate her attacking partner. (17) The woman often blames herself for the abuse and may take it upon herself to rationalize the acts of her partner. (18) The "tension-building" phase may last for a number of years while the woman continues to rationalize the acts of her partner and begins to behave in a way that she believes will help her avoid future attacks. (19) Tension will gradually escalate and increase friction in the relationship. (20)

      Next comes the "acute battering incident" phase. (21) The severity of the attacks will intensify as the tension in the first phase of the cycle results in an uncontrollable discharge of violence. (22) The minor incidents at the onset of the "tension-building phase" become more frequent and intensify to the point that the woman can no longer appease her partner. (23) As the cycle repeats, the woman may be able to predict the approach of the acute battering phase and take steps to shield herself from verbal or physical barrages. (24) The violence may become so severe that the woman begins to fear substantial physical injury or even death. (25)

      The third stage in the cycle of violence occurs immediately after the acute battering phase and is known as the "honeymoon phase." (26) The woman's partner begins to show remorse, as well as what Walker identifies as "contrite loving behavior." (27) Her partner will beg her for forgiveness, promise to never hurt her physically or verbally again, and will resolve to change his ways forevermore. (28) He will be charming and apologetic and eventually convince the woman that he is indeed a changed man. (29) He may make an effort to convince her that his promises are sincere by temporarily giving up alcohol or by looking into counseling or anger management classes. (30) The woman's partner essentially models himself into the man the woman wants him to be and gives her genuine hope that he will change. (31) By the time the woman begins to realize her partner has made a series of empty promises, it is too late--the cycle of violence has restarted its course. (32) As the relationship continues, the time spent in the "tension-building" phase increases, and the period of loving contrition in the "honeymoon phase" decreases. (33)

      And thus the (almost) never-ending cycle of a battering relationship. Walker argued that the repetition of the cycle of violence allows women to develop "learned helplessness." (34) Psychologist Martin Seligman first introduced learned helplessness as a psychological state of mind that may help explain why some women do not leave their abusive partners. (35) Walker reformed this definition to describe a woman losing "the ability to predict that what [she does] will make a particular outcome occur." (36) Walker stated that, after being harmed and lied to time after time, women might begin to believe they lack any sort of control in their relationship and in the abuse they often become subject to. (37) Because the woman feels as if there is no way out of her situation, "the woman becomes increasingly passive, and her motivation and the will to get out of the relationship diminish." (38) This feeling, along with her partner's continued efforts to control and isolate the woman, may lead her to circumvent her support system or to become willfully blind to avenues of escape. (39) Eventually, the woman will feel as if it is impossible to escape her abusive partner. (40)

    2. Battered Woman Syndrome and Self-Defense in Missouri

      Evidence of BWS may be introduced at a trial to: (1) support the woman's credibility by eliminating commonly held misconceptions about battered women and abusive intimate relationships; (2) prove the woman honestly feared imminent death or great bodily injury; and (3) show that the woman's behavior was reasonable. (41) Evidence of BWS demonstrates to judges and juries the major impact continuous abuse has on the woman's state of mind and helps to explain how actions that do not appear to coincide with traditional confrontational self-defense may in fact be justifiable. (42)

      1. Codification of Battered Woman Syndrome

        Presently, every state permits expert testimony on BWS to support a woman's claim of self-defense against her abusive partner. (43) Several states, including Missouri, have codified its use. (44) Prior to the passage of Section 563.033, the majority of women who killed their batterers had no self-defense claim. (45) Many women who killed their abusers pled guilty or asserted some sort of mental deficiency defense, such as insanity or diminished capacity. (46)

        In Missouri, a person is permitted to use physical force against another when, and to the extent, she reasonably believes such force to be necessary to defend herself from what "she reasonably believes to be the use or imminent use of unlawful force by [another] person." (47) Self-defense instructions resulted in little relief to women because few factfinders appreciated the imminence of unlawful force--battered women "often perceive an immediate threat where a factfinder, uninformed about the dynamics of abuse, would be unlikely to see the threat as urgent." (48)

        Section 563.033 was adopted in 1987 in an effort to allow battered women to present evidence of battered spouse syndrome, a synonym of BWS, at trial in order to support their claim of self-defense. (49) The sponsor of the bill, Representative Michael Davis, noted that one intention of the bill was to remove "the decision whether to admit expert testimony on 'battered spouse syndrome' from the trial judge's discretion where the defendant raises the claim of self-defense." (50) Pursuant to Section 563.033, a woman must file written notice with the trial court if she chooses to present expert testimony regarding BWS. (51) Section 563.033 makes evidence that a woman was "suffering from battered spouse syndrome ... admissible upon the issue of whether the [woman] lawfully acted in self defense ... ," (52)

        In the years after its passage, Section...

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