Reconceptualizing victimization and agency in the discourse of battered women who kill

• Pages: 3-45
• Date: 01 September 2008
• DOI: https://doi.org/10.1016/S1059-4337(08)45001-9
• Published date: 01 September 2008
• Author: Ruthy Lazar

RECONCEPTUALIZING

VICTIMIZATION AND AGENCY IN

THE DISCOURSE OF BATTERED

WOMEN WHO KILL

Ruthy Lazar

ABSTRACT

The ways in which battered women respond to domestic violence, and the

ways the legal system constructs those responses, constitute the frame-

work of this chapter. The analysis focuses on mitigation in sentences of

battered women who killed their abusers and examines the manifestation

of agency and victimization in the mitigation structure. My thesis is that

these women are perceived by courts solely as victims who lack agency

and autonomy. Three main themes emerge from the analysis: first, the

courts focus on the mental state of the defendants, stressing their

psychological deficiencies as the primary mitigating factors. Secondly,

many cases are categorized by courts as unique cases. Thirdly, in several

cases the courts portray the women as ‘‘victims of circumstances’’. An

alternative analysis to that offered by the courts, one that seeks to

reframe the mitigation process, is introduced in this chapter. According to

this analysis, the narrative used in cases of battered women who kill

should be changed to reflect dimensions of agency and resistance. In the

suggested discourse, the abuse these women suffer is acknowledged, but is

Studies in Law, Politics, and Society, Volume 45, 3–45

Copyright r2008 by Emerald Group Publishing Limited

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ISSN: 1059-4337/doi:10.1016/S1059-4337(08)45001-9

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used to explain the women’s urge to self-preservation and thus, the

rationality and reasonableness of their acts.

INTRODUCTION

‘Gender-based violence is perhaps the most widespread and socially

tolerated of human rights violations’ (United Nation Population Fund,

2005). Violence directed at women by their intimate partners is an acute

social problem in our society. It has been estimated that nearly three in ten

Canadian women who have ever been married or lived in a common-law

relationship have been physically or sexually assaulted by a marital partner

at some point during the relationship (Chewter, 2003).

1

The ways in which women respond to domestic violence, and the ways the

legal system constructs those responses, constitute the framework of this

chapter. The discussion will focus on the unique situation within the

criminal justice system of battered women who kill their violent male

partners,

2

and how the justice system perceives these women and deals with

their acts of killing.

The analysis will focus on sentencing of battered women who killed their

abusers or other men and were convicted of manslaughter. More

specifically, mitigating factors that affect the sentences of these women,

such as the abuse they suffered, will be examined. The goal of the analysis is

to examine the way these mitigating factors are placed with respect to

different conceptions of women’s agency.

The main thesis is that these women are perceived by courts solely as

victims who lack agency and autonomy. The common narrative in the

mitigation of the sentences is the mental state of the women, which is

perceived as a product of the abuse they suffered at the hands of their

abusers. Although considering the abuse as a factor in the sentencing

decisions is a positive step within the criminal justice system towards

achieving equality for battered women who kill, associating it solely with

women’s psychological deficiencies, and describing it using notions of

victimization, creates serious difficulties for battered women.

One of the implications of such a paradigm may be the formation of a rigid

dichotomy between women who ‘deserve’ the sympathyof the courts (women

who are perceived as victims) and women who do not deserve it (women who

are perceived as agents). Another is the reinforcement of the stereotypical

image of battered women as passive, submissive and psychologically

RUTHY LAZAR4

defective. In depicting the women as victims, the approach of the courts

obscures any aspects of resistance and choice these women may have

demonstrated in their acts and further creates a superficial distinction

between victimization and agency and between oppression and resistance.

The Impetus for Doing the Research

Several feminist commentators have argued that the introduction of the

Battered Woman Syndrome (hereinafter referred to as BWS) in the case of

R. v. Lavalle (1990) did not generate a ‘a rash of acquittals’ as expected

(Sheehy, 2001, p. 533), but rather created greater willingness on the part of

the judiciary and the courts in such cases to facilitate guilty pleas to

manslaughter and impose lenient sentences (Shaffer, 1997, p. 18).

In light of this observation, the ‘sentencing phase’ in cases of battered

women who kill merits further exploration. Additionally, there has been

limited academic attention aimed at studying the sentencing of battered

women who kill in Canada. This chapter is aimed at further closing this gap

in research.

By exploring this topic, two goals can be achieved. First, analysis of

sentencing decisions can serve as a tool for developing a consistent

sentencing model that responds to the characteristics of battered women

who kill and to their legal needs. Secondly, the sentencing phase is an

essential component to be explored in order to achieve equality within the

legal system for these women.

As a background to the analysis, I provide a three-part preface, beginning

with an examination of the doctrine of self-defence and the constraints it

created for battered women who killed their abusers. I then look at the

development of BWS while describing its nature and the goals it aimed to

achieve. I conclude the preface by briefly presenting the case of Lavallee,in

which the Supreme Court of Canada acknowledged, for the first time, the

admissibility of expert evidence on BWS. The various distortions of the

testimony on BWS and the feminist critique of the way it is used in courts

are discussed in the second part of the chapter.

Questions of agency and victimization in the discourse of battered women

who kill constitute part three of the chapter. Here, I will use feminist’

theories of agency and victimization and look at the legal image of battered

women and its relation to the dichotomy of victimization and agency.

In the fourth part of the chapter, I analyze sentencing decisions handed

out to battered women who killed their abusers or other men and were

Victimization and Agency in the Discourse of Battered Women Who Kill 5