Necessitating the Inclusion of Battered Woman Syndrome Defense in India

Members of All India Democratic Women’s Association (AIDWA) hold placards and shout slogans against the central and state governments during a protest against domestic violence, sexual attacks and discrimination to mark International Women’s Day 2020 in Amritsar. Many countries reported a 15-30% hike in the number of distress calls received from women as a result of physical distancing regulations and its subsequent lockdowns. (Photo by Narinder Nanu/AFP)


Rashna Jehani

The enemy doesn’t stand a chance when the victim decides to survive[1]

Introduction

One of the well accepted and yet evolving concepts having gained legitimacy across legal and psychological spheres, in countries like Australia, Canada, New Zealand, United Kingdom and United States of America is the doctrine of the ‘Battered Woman Syndrome’ (BWS). The doctrine has been applied to those women survivors of domestic violence who are guilty of killing their oppressors under the law. This concept has been introduced in law to explain the reasonableness of a woman’s actions in self-defense committed against her abuser[2]. The term “Battered Woman Syndrome” was coined by Dr. Lenore Walker, who used original research and stated that the syndrome denoted a set of distinct psychological and behavioral symptoms that resulted from prolonged exposure to intimate partner violence. It is a deeply layered form of multiple victimization, where a woman can think of no other option to escape violence but to attack her perpetrator.

Although based on common law ideology, the Indian criminal legal system  is a patriarchal structure, one that leans towards reiterating gender stereotypes. The last few decades have however seen several legal reforms which provide civil and criminal remedies to survivors of domestic violence including the introduction of ‘The Protection of Woman against Domestic Violence Act’ in 2005. In India, the Battered Woman Syndrome does not have a legal status per se, since there is no specific law dealing with the doctrine or carving out the act committed due to the Battered Woman Syndrome as an exception to the statute of murder under the criminal code.

Apart from the law, many social, cultural and religious factors play a crucial role in shaping the psychology of a woman and molding her into tolerating the cruelty subjected by her oppressor silently without any opposition. This includes refraining from undertaking acts of aggression herself or even confronting the husband to stop his violence and sometimes committing suicide to escape the pain. This shows that women end up internalizing culturally defined gendered roles and consider themselves in an inferior position as compared to their oppressor. A statutory and legal recognition of the Battered Woman’s Syndrome will establish that the law has taken into account not only the physical and psychological considerations of a woman, but also protect her human integrity and dignity which have been extended to every citizen under the provisions of the Right to Life provided under Article 21 of the Constitution of India.

Domestic Violence dealt with in India

In the last decade, there has been a change in the approach to domestic violence in India. The country has seen several important legal developments in the form of judgements and statutes. This has afforded greater assistance to the survivors. In January 2005, the Legislature passed the first law to tackle the issue of domestic violence – The Protection of Women against Domestic Violence Act, 2005 (“Domestic Violence Act”). The Domestic Violence Act was enacted to protect the rights of women who were victims of domestic violence and for matters related thereto. It defines offenses to include repeated insults, name-calling and ridicule, demonstrations of obsessive possessiveness and jealousy of a partner as acts of domestic violence. One of the pertinent features of the statute is that it provides dual remedies to the victim: civil as well as criminal.

Many debates arose on the usage of the statute and the Supreme Court in one of its rulings in the case of Aneesh Kumar versus State of Bihar held that ‘Section 498A has been misused by the disgruntled wives against their husbands.” However, what has been overlooked in these deliberations are several other factors including the cultural context in which the woman‘s subordination is the norm, and that they are socialized into succumbing silently to the violence and oppression. Also, the law does not seem to factor in the history of the abuse, the pattern of the abuse and the woman’s psychological state and experience at the time of facing violence, which could impact the outcome of the criminal litigations instituted in respect of the violations.

THEORETICAL FRAMEWORK OF THE BATTERED WOMAN SYNDROME

The term ‘Battered Woman Syndrome’ was coined by Dr. Lenore Walker, known as the ‘mother of Battered Woman Syndrome’ in the 1970’s, to understand and explain the psychological state of women suffering from ‘intimate partner violence’[3]. Battered Woman Syndrome has been described as a pattern of violence inflicted on a woman by her mate[4]. It refers to a set of behavior and psychological reactions displayed by women who are subjected to severe long term domestic abuse.[5]The growing body of research and judgements across several countries have shown that battered partners suffering from the battered woman syndrome are likely to use force to defend themselves and sometimes even kill their abusers because of the abusive and life-threatening situation that they are in, acting on a firm belief that there is no other way of self-preservation.

Battered Woman Syndrome as a Legal Defense

Historically, the phrase ‘Battered Woman Syndrome’ or “BWS’ was often used in criminal cases where a woman was facing trial for murdering her intimate partner and sought to introduce evidence that she was a victim of domestic violence and the deceased was her abuser[6]. In most of these cases, the biggest problem for the courts was that the woman who killed her intimate partner committed the act when her partner was asleep, unconscious or when she was not under an immediate threat of attack to her or her loved ones. Therefore, she was not afforded the claim of self-defense because the ‘immediate provocation’ element was missing. Contrarily, in cases where the woman who killed her intimate partner was being attacked when she killed him, the plea of self-defense was easier to justify. However, courts across Australia, New Zealand, United States and United Kingdom have come to accept that battered partners can use force to defend themselves.

Most cases of battered women killing their partners hinge on determining whether a defendant’s actions in particular were reasonable or not.[7] But more often than not, the use of the word ‘reasonable’ is a medium for the judge’s own subjective conception of what ‘reasonable’ should be.[8] Therefore, there was a need to go beyond the standard of a ‘reasonable man’ or a ‘reasonable woman’ and introduce a new standard for the ‘battered woman’. This can be done when other factors are taken into account; including the psychological state of the woman at the time of committing the act, the past abuse endured by her and the fear of being subjected to harm.

The incorporation of BWS theory in Indian statutes would set a distinct and more objective standard of reasonability which would be applicable to battered women by factoring in the prolonged abuse suffered by them. The conventional model of rationality in law does not consider the particular history of the defendant, or the cultural factors due to the general requirement that the offender must intend to commit the act which constitutes the crime.[9] Therefore the ways in which the international courts have convicted battered women and taken into consideration the BWS testimony certainly has a bearing on how BWS could be applied to cases in India.

LAW ON BATTERED WOMAN SYNDROME IN INDIA

As on date there is no statutory recognition of Battered Woman Syndrome under the Indian law. While considering the Battered Woman Syndrome as a legal defense in the Indian scenario it would be pertinent to examine the same in the social context in which the domestic abuse takes place. The cultural process has been instrumental in shaping the environment and the mindset of the women where they are taught to be submissive and docile and not fight against oppression especially when the oppressor is a close relative.[10] Further, the exceptions laid down under the framework of the Indian Penal Code, be it the general ones laid down in Chapter IV from Section 76 to Section 106 or the specific statutory ones that are provided for in Section 300 which defines murder, do not apply to the case of a battered offender. These defenses cover the defenses of necessity, grave and sudden provocation and private defense. Section 300 mitigates the more stringent offence of murder to that of culpable homicide not amounting to murder, which is punishable under Section 304 of the Code.  There is no explicit statutory recognition of Battered Women Syndrome in the Code. There is a need to place the actions committed by battered women under the defenses of right of private defense, grave and sudden provocation or necessity.

Indian courts have begun to consider BWS testimony and related psychological concepts when deciding cases of battered offenders.[11] Notably, the concept of ‘sustained provocation’ has been recognized in cases beyond the ones related to battered women.[12] In Suyambukkani’s[13] case, the Madras High Court conceptualized ‘sustained provocation’ as a judicial creation that was envisaged by the architects of the Indian Penal Code.

In 2012, the Madras High Court reiterated its position as regards ‘sustained’ provocation in Poovammal v. State[14], a case in which a grieving mother killed her own son.

The Court observed: “There may be incidents or occurrences, which are such that they may not make the offender suddenly make his outburst by his overt act. However, it may be lingering in his mind for quite some time, torment continuously and at one point of time erupt, make him lose his self-control, make his mind to go astray, the mind may not be under his control/command and results in the offender committing the offence. The sustained provocation or frustration nurtured in the mind of the accused reached the end of the breaking point, under that the accused caused the murder of the deceased.”

Seen this way, the court’s observation of ‘sustained’ provocation is an application of the principle that the mental state induced due to prior acts of the deceased could be taken into consideration for the purpose of determining whether an adequate ground for provocation could be constituted.[15] In this case[16] the court borrowed from the English common law, the principle of extending the time interval between the acts and the provocation. However, unlike the English and American courts, such judgements do not offer a principled justification for the addition of sustained provocation to the list of statutory exceptions enumerated in the Code. In Rajendran v. State of Tamil Nadu[17], the Madras High Court allowed the defense of sustained provocation due to the fact that the trigger for the provocation and the consequent loss of self-control cannot be viewed in isolation from other acts and circumstances that have led up to it.[18] The Court further observed that although the most recent behavior of the batterer may have been non-provocative, if viewed along with the history of abuse that preceded it, it may have been sufficient to cause a loss of self-control in the battered woman.[19]

There have been cases when accused women have been able to claim the exception of exceeding the right of private defense. In Malliga v. State by Inspector of Police[20], an abusive husband forced his wife into prostitution. The accused woman fearing for her life killed her husband. The court held that her act came within the second exception of Section 300 of the Code since there was a reasonable apprehension that her husband would cause her grievous hurt if she did not comply with his demands.[21]

The present doctrine of self-defense clarifies that where the accused does not wait for the aggressor to cause a grievous injury and acts in self-defense, he or she is bound to be acquitted under the law.[22] The idea behind this protection is that the women who committed the act, did so to protect themselves not from an attack that may eventually kill them, but from an injury that can strictly be defined in psychological terms. 

Now, criminal law in India stems from the understanding that an accused is not to be convicted if the crime was committed without his or her free will. This virtue has been found in existence in the natural law, and has further been adapted and generalized under the banner of common law.[23] The existence of such a doctrine implies that a battered woman who is affected by internal and external conditionality is bound to do the same thing which another person would, if faced with similar circumstances. The doctrine of self-defense however deals with physical integrity and does not deal with other forms of existence such as the psychological integrity of an individual. The proposed psychological self-defense doctrine aims to protect this much-excluded aspect of human integrity.

In 2013, the first Indian landmark judgement of Manju Lakra v. State of Assam dealt extensively with the Battered Woman Syndrome. This paved the way for its inclusion in criminal defense in India. [24] The court observed that it was the conduct of the deceased which built up strong resentment and rage inside the accused wife, it was all waiting to erupt at any further violent conduct of the husband. In the words of the court “She had thus been sitting on a volcano of resentment and rage, which was continuously building and boiling inside, waiting to burst open and that is precisely what happened on that fateful evening, when her husband having come home in a drunken state, as usually he did start beating her up. She lost the power of self-control, reacted by snatching away the lathi and started beating him up without realizing that he was likely to die.”

Considering the catalogue of events realistically, the court held that the case fell squarely within the First Exception of Section 300 of the Code and the accused instead of being held guilty of murder was held guilty of culpable homicide not amounting to murder. The court acknowledged that the evidence presented in the case revealed that the accused did not want to cause the death of her husband but was concerned with the stopping of violence which her husband had been perpetrating on her and teach him a lesson without really intending to end his life.

The Battered Woman Syndrome doctrine has recently been applied by the courts of India in cases not only when the women have been accused of harming their batterers, but themselves or some other persons. The Delhi Court in its decision in State versus Hari Prashad[25] applied the doctrine and held the accused guilty of abetting his wife’s suicide under Section 306 of the Indian Penal Code. The judgement is an indication of the doctrine’s acceptance, applicability and recognition in the context of the Indian cases.

WAY FORWARD

Although the court’s application of BWS is certainly welcome, the cases demonstrate the need for an express inclusion of BWS in the Indian Penal Code. This would be an effective means of enabling the courts to come to the aid of the battered women without offending the statutory regime. An express inclusion of the BWS in the statute would make the defense available to the abused victims vis-a-vis third parties, unlike provocation and self-defense which are applicable only with respect to the batterer for the acts committed intentionally. It would further eliminate the need for the courts to read BWS into an exception of Section 300 as an ‘ejusdem generis’ exception and mitigate the act from murder to culpable homicide not amounting to murder. Therefore, as can be seen from the judicial precedents hereinabove mentioned, there exist instances when the BWS has been included in the Indian judicial framework. However, its current inclusion yet creates the possibility for the conviction of the battered women in the circumstances of the case and operates only as a mitigating factor as regards to constituting the act committed by her to be known as ‘murder’ or ‘culpable homicide not amounting to murder’. The express inclusion of BWS in the present legislative framework would certainly be instrumental in altogether preventing convictions for murders committed by women suffering from BWS. Therefore, its formal inclusion is more likely to allow battered women to claim it as a legal defense.

It would be pertinent to include a new category of defenses for battered women who exhibit particular psychological symptoms typical of a BWS affected woman. These defenses could be generally applicable to offenses committed against the body or as an exception specifically in case of murder. In case of murder these would lower the high standard of burden of proof that the abused woman would have to meet in case of private defense or provocation.

The standard to prove innocence in case of a battered woman would be to establish a history of repeated physical or mental abuse and that the woman felt a constant sense of fear and danger for herself and her loved ones. The “sense of danger” aspect could be evaluated on a case to case basis and not just determined by expert testimony. If it is then proved that the victim felt the apprehension and there was sufficient evidence to show the existence of the history of abuse and justify the offence committed, the statute should also provide for a reduced punishment.

CONCLUSION

Due to the limited reliance placed on the doctrine of Battered Woman Syndrome by Indian courts, it makes the subject suitable for a judicial opinion.  Legislators need to be made aware that a certain group of women exist, who have been battered throughout their lives at the hands of their husbands and when they resort to committing an act of violence, the act should be considered in light of the circumstances which preceded the commission and the situation in which the woman was placed in, physically and/or psychologically. The application of the theory of BWS will be an important tool for the judiciary to understand the psychological state of the battered women and the reason why women who have suffered abuse for so long kill their batterers. Due to the literal construction of statutes, lower courts especially have ended up neglecting the mental state of mind of the accused and have imposed heavy sentences on the defendants. Therefore, the failure to consider the syndrome in deserving situations necessitates the need to amend the statutory provisions. The inclusion of Battered Woman Syndrome in the statute would be a step forward in a more gender-just discourse in criminal law.

However legislative developments alone would not suffice for ensuring fairness to the battered victims. There would have to be a reform in the patriarchal society in order to improve the situation of the battered woman. Social support has consistently been linked to understanding one’s ability to deal with stress and other adversity[26] based largely on the notion of a ‘social support buffer hypothesis’.[27] This understanding mainly suggests that social support could help the victim in buffering the effects of the negative life events. However recent studies have shown that the study of social support includes understanding both the absence of perceived ‘positive’ social support and the presence of ‘negative’ conflicting social interaction and the extent to which the responses would influence the battering victim’s actions in response to the violence she has been facing[28]. This integrated approach would be essential to not only protect the psychological construction of the woman within the precincts of the law but also to protect her from stereotypes and labelling her as ‘mad or bad’ and from other physical, cruel and inhuman treatment. In terms of India’s specific cultural context, with a scarcity of alternatives or support, battered women are often driven to committing suicide.

Thus, apart from social and legislative changes, creation of violent free homes would help in dispensing with the patriarchy as it would be essential to empower the women in order to endeavor for attaining a society where the powers are evenly distributed.


Rashna Jehani is presently pursuing her second masters’ degree in business administration from the SP Jain School of Global Management. She graduated with a B.L.S LLB degree from Government Law College in 2012 and completed her Masters in Law from Columbia Law School in 2018. You can find her on LinkedIn.


Photo Credits: Narinder Nanu/AFP

[1] Battered Woman Syndrome- Jennica Bellani. February 02, 2017.

[2] Gillespie Cynthia K. (1989) Justifiable Homicide: Battered Woman, Self-Defense and the Law 159.

[3] LENORE WALKER, THE BATTERED WOMAN SYNDROME4 (4th ed.,2016)

[4] Paul.C. Gianelli. Public Defender Reporter. Battered Woman Syndrome.

[5] Lenore Walker, Roberta K. Thyfaut & Angela Browne, Beyond the Juror’s Ken: Battered Women, 7 (1) VERMONT LAW REVIEW 1-14 (1982)

[6] Noel Rivers-Schutte-History of the Battered Woman Syndrome-a fallen attempt to redefine the reasonable person standard in domestic violence cases. 2013.Seton Hall University.

[7] Elizabeth M. Schneider, Equal Rights to Trial for Women: Sex Bias in the law of Self-defense, 15 Harvard Civil Rights-civil liberties law review, 623-647, 630 (1980)

[8] Id., 635

[9] SIR JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND, 1 113 (1883)

[10] Dr. Shalu Nigam, Battered Women Syndrome: Applying this Legal Doctrine in the Indian Context (August 6, 2016)

[11] Manju Lakra v. State of Assam, (2013) 6 Gau LR 222, 251; State v. Hari Prashad, Crl .A. No. 333/2000, 9.

[12] Vanarani v. State Rep. Rep. by Inspector of Police, (2001) 1 CTC 656, 661; Lakhwinder Kaur v. State of Punjab, Appeal (Cri.) no. 385 DB of 2004, 5.

[13] Suyambukkani v. State of Tamil Nadu, 1989 LW (Crl.) 86, para. 21

[14] Poovammal v. State of Tamil Nadu, (2012) 2 MWN (Cri) 276, 278.

[15] Boya Munigadu v. The Queen, ILR 3 MAD 33, 34; In re C. Narayan, A.I.R. 1958 A.P. 235, 238.

[16] Id.

[17] Rajendran v. State of Tamil Nadu, (1997) 2 MWN (Cri) 237, 246

[18] Id, 246.

[19] Id,246.

[20] Appeal (Cri.) No. 141 of 1995, 1

[21] Id,6

[22] Mohd Ramzani AIR 1980 SC 134:1980 Cri LJ 1010 (SC).

[23] George Fletcher, Crime of Self-Defense: Bernhard Goetz and the Law on Trial, University of Chicago Press (1990).

[24] Manju Lakra v. State of Assam, (2013) 6 Gau LR 222, 251

[25] Criminal Appeal 333 of 2000 decision given on February 10, 2016

[26]James C. Coyne & Geraldine. Downey, Social Factors and Psychopathology: Stress, Social Support, and Coping Processes, 42 ANN. REV. PSYCHOL. 401 (1991).

[27] Sheldon Cohen & Thomas A. Wills, Stress, Social Support, and the Buffering Hypothesis, 98 PSYCHOL. BULL.310 (1995).

[28] Diana Gurley, Understanding the Mixed Roles of Social Support and Social Obstruction in Recovery From Child Abuse (1989).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s