On Thursday, June 19, 2014 BWSS will host a Justice Panel before screening Crime After Crime, a film featuring the story of Deborah Peagler. Deborah Peagler, a battered woman who was convicted of killing her abusive and violent male partner. And the criminalization of women who self defend in battering situations will shape the theme of the justice panel moderated by Laura Track, West Coast LEAF with Elizabeth Sheehy, University of Ottawa, Victoria Desroches, Criminal Lawyer, Amy Salmon, Board Member Bonding With Babies, and Angela Marie MacDougall, BWSS Executive Director.
On January 14, 2014, Elizabeth Sheehy joined feminist blogger Meghan Murphy to discuss her book Defending Battered Women on Trial: Lessons From the Transcripts. Elizabeth is Shirley Greenberg Professor of Women and the Legal Profession in the Faculty of Law at the University of Ottawa and she is a leading scholar on the legal system’s treatment of battered women in Canada. Please find a rush transcription of the interview below:
Defending Battered Women On Trial: An Interview with Elizabeth Sheehy
Meghan Murphy (MM): You are listening to Feminist Current. I’m Meghan Murphy. In Canada, a woman is killed every six days by her male partner and about 12 women per year kill their abusers. A new book by Elizabeth Sheehy looks at the cases of 11 women who are accused of killing their male partners in self-defense. The book is called: Defending Battered Women on Trial and it highlights the barriers women face leaving their abusers as well as the practical and legal dilemmas that face battered women on trial for murder. Elizabeth Sheehy is Shirley Greenberg Professor of Women and the Legal Profession in the Faculty of Law at the University of Ottawa. She is a leading scholar on the legal system’s treatment of battered women in Canada. I spoke with her over the phone from her home in Ottawa. So, first of all, I wonder if you could just tell me why you thought this was an important book to write.
Elizabeth Sheehy (ES): Well, I’ve been working on the issues that confront battered women on trial for a number of years, you know, maybe twenty five years. I’ve written and researched in this area and I’ve also been involved in a number of law reform efforts, with respect to self-defense and, you know, reviewing the convictions of women who’ve been convicted for killing violent men. And I finally came to the conclusion that I couldn’t get an accurate picture of what was going on for women in the criminal law, if I didn’t get access to the trial transcripts. You know, I couldn’t really assess whether women’s convictions were just or unjust or whether the defense had in fact aired all the evidence that was available or whether lawyers had done a good job. So, I realized about ten years ago that I couldn’t reach conclusions about whether we needed law reform or we needed better legal education or if we needed better resources until I could see what was actually happening. And so, my project became, you know, to acquire these trial transcripts, to be able to assess more concretely what’s actually happening in the court room. And from there, I knew I was going to write a book using those transcripts to share the knowledge and the information that I was gaining through getting access to the trial transcripts. And at a certain point I decided I would write a book that would be accessible to the educated reader, as opposed to a purely academic book. You know, aimed for scholars, and you know, law students or whatever. So, that became my commitment and I decided that I should write a book that was accessible to the reading public to tell these stories because as you well know, there is so much misinformation about battered women in the public domain and so much antipathy that I thought I needed to share what I learned and make accessible to ordinary people, you know, the knowledge and the information and the realities of battered women’s lives and challenges when they’re put on trial.
MM: So, you know, what did you learn? What were some of the more powerful or impactful stories you came across in your research?
ES: Well, one thing that surprised me deeply— I shouldn’t have been surprised—but how many of the women are Aboriginal, who have been involved in spousal homicide, you know, in killing violent male partners. I was deeply shocked to realize how dramatically overrepresented they are in my sample so that was something that I was unaware of. I also found it surprising to learn that there were more women who’ve been acquitted than any of us knew, you know, so I think in the end I found something like twenty two acquittals among my files and I thought that that was actually pretty surprising because most of us were only aware of a handful, I mean, you know, three, four, five acquittals. So I uncovered, you know, a number of acquittals that we were unaware of and I got an opportunity to study what those lawyers did right, you know, in terms of defending those women.
MM: I read, you know, you said that Aboriginal women are in acute danger in Canada and are wildly, disproportionately represented both among murdered women but also among women who kill in self-defense. You know, twelve out of the nineteen women in your study who received federal sentences after pleading guilty were Aboriginal. I wonder if you could talk about that a bit more.
ES: I was surprised to see the over representation of Aboriginal women in my files. They were almost 40 percent of the women that I found who had killed violent male partners in the period I studied, which was 1990 to 2005. And I found that really surprising but of course I shouldn’t have been surprised because we also know at the same time that Aboriginal women are highly overrepresented in terms of intimate femicide. They are at something like eight times the risk of being murdered by a male partner as are other women in this county. So, it’s perhaps not so surprising that they kill at such a high rate as well because they are in fact in that position of facing very deadly violence and they’re also, I would say, abandoned by the state. You know, in so many of Aboriginal women’s files that I’ve looked at, they really are on their own. There is no one [who] is going to help them. You know, they are on their own in terms of defending themselves and their life and their children; if they don’t do it, there’s no one else who’s going to do it. And in terms of federal sentences: Yes, Aboriginal women are also overrepresented in my study in terms of getting the more severe sentences when they’re convicted or when they plead guilty. Why is that? Well, some Aboriginal women already have a prior criminal record of violence. Some of those criminal records should never have occurred but they do because when women are counter charged with assaulting male partners they are put in a terrible position. So many women in that position end up pleading guilty rather than, you know, stay in jail, wait for a bail hearing… They’re not going to get legal aid by and large if it’s, you know, the first time they’ve been charged with assaulting a male partner. There’s an issue about what’s going to happen to their kids. So most women and Aboriginal women as well, will end up pleading guilty to those counter charges that are laid when there is a battery incident. That means that Aboriginal women, for example, come then to be sentenced for homicide with a criminal record that other women may not have and that record, of course, will exacerbate their sentences. I guess the other thing I would say to you about the Aboriginal women’s files, in the cases I found, I think there is maybe one Aboriginal woman who did not kill in the context of a live conflict. So that’s the other thing that differentiated Aboriginal women’s files from the other files. Amont my other files I had a few women who killed men who were asleep or passed out. The Aboriginal women almost to a woman killed in the context of an on-going conflict. So if they are found guilty or plead guilty, even though they’ve been involved in a conflict where self-defense might have been viable, they can still be portrayed by the prosecutor as violent. You know, defending themselves with violence or they did not try to escape the attack but rather fought back. The prosecution has the opportunity to say, and they argue this over and over now in aboriginal women’s cases, they say: “She was not a real battered woman, therefore she doesn’t deserve the lenient sentences that other battered women might get.”
MM: Yes. And I wonder if you could talk a bit more about those kinds of stereotypes like the ways that stereotypes both of abusers but particularly victims of abuse impact the way we understand and approach the issue of battered women. What a “real battered woman” is, and what “real abuse” looks like and things like that.
ES: Well, it’s interesting, because it is clear to me that in some of these cases that the prosecution is not actually arguing that she was never abused. But they are arguing that she does not have entitlement to the moral ground of being a battered woman. That because she fought back, because she held a job, or because she had friends, or you know that somehow she does not get to assume the sympathetic label of a battered woman. And I argue in my inclusion in my book that actually prosecutors should not be allowed to make those arguments in front of jurors. That it invokes such hostility to battered women to try to suggest that they are not a real battered woman. That I think it’s unfair when there is evidence of abuse. That’s really all we are talking about here, is there evidence of abuse? Well then she is a battered woman. You shouldn’t have to fit any further criteria whether factually or morally to be able to say “Yes, I am a battered woman” or “She is a battered woman”.
MM: Yes. You know, obviously we are talking about battered woman syndrome here. And I wonder if you can explain what that means.
ES: A particular US researcher, Dr. Lenore Walker, coined this term “Battered Woman Syndrome” back in the 1970s based on a research study that she did that involved interviewing and assessing the experiences of women who had experienced male violence in a relationship. And, you know, basically, “Battered Woman Syndrome” bears some relationship to post traumatic stress syndrome. But what is unique for battered women is that they experience the traumatic event over and over. So, one thing that ordinary people should know is that many people may experience post traumatic stress disorder based on a traumatic event that may be a natural disaster or may be a human event that was traumatic. But someone who is essentially captive in a relationship where they cannot escape, will experience, if they are with an abusive partner, repeat trauma, which creates different types of responses. So Dr Lenore Walker has a set of criteria that she uses and that most therapists would now use, psychiatrists usually but could be a psychologist, to assess whether a woman experiences “Battered Woman Syndrome”. So they are:
- Intrusive recollections of the trauma event or events,
- Hyper arousal and high levels of anxiety,
- Avoidance behavior and emotional numbing, usually expressed as depression, dissociation, minimization, repression, and denial,
- Disrupted interpersonal relationships from batterer’s power and control measures,
- Body-image distortion and or somatic or physical complaints,
- Sexual intimacy issues.
One of the main consequences that she talks about is her concept of Learned Helplessness. And it’s a concept that has been misunderstood. She is clear that she is not arguing that battered women become helpless. She says that basically that when someone’s efforts to escape or avoid a repeat trauma are thwarted over and over again, they become negative in their prediction of their ability to avoid or escape the violence. Which may have a handicapping effect on the woman as she tries to negotiate her way out of it, if it continues. So Learned Helplessness, she says, is not that battered women do not fight back, or strategize, or display courage, or sometimes find ways to escape. But that their ability to predict that their actions will have the desired consequence of either reducing or [can’t understand] or minimizing the violence or abuse have been impaired by the fact that actually she has not succeeded, that the man has continued or in fact increased his strategy of violence and control. So, you know, Battered Woman Syndrome evidence has become relevant in law because defense lawyers will inevitably in most of these cases have the woman evaluated for Battered Woman Syndrome, because it then becomes a form of expert evidence that can be introduced to assist the woman’s argument of self-defense in her trail, that’s why Battered Woman Syndrome gets so much play in the legal arena because it is evideracy or a form of expert testimony that can assist her in arguing self defense.
MM: So in terms of domestic abuse situation, in relevance to the battered woman’s syndrome, people often ask why don’t you just leave, to women who have experienced abuse instead of suffering through it or instead of killing their abusers. What is the problem in saying that?
ES: First off, the law does not require a woman to leave. A woman is entitled to use self defense to defend her life or the lives of her children, regardless of whether or not she has left the relationship. The law doesn’t require that, it would be requiring a duty to retreat, or a duty to pre-retreat (retreating before the attack) to entitle you to use self defense. You are entitled to use self defense whether or not you have retreated, or you got yourself out of what looks like a dangerous situation. More importantly, it’s quite dangerous for women to leave. The most dangerous time in an abusive relationship is (8 folds increase in being vulnerable) is within the 18 months after a woman has left a man. Expecting the woman to just leave is putting their lives at risk. It is simply a bad advice unless the woman has had a very careful risk assessment and safety plan put in place. What happens when a woman leaves or attempts to separate, is he escalates his threat, he reasserts his control, sometimes at the level of “if I can’t have you, no one can” or “I win, you die”. The threat is most acute at the period of separation, and up to two years after the separation. We also don’t have many guarantee of their safety, and while shelters absolutely do provide a safe environment, protect them and save women’s lives, women can’t live in a shelter 24/7 for the rest of their lives. We have no guarantee of police protection or response to these situations, women continue to be murdered in Canada; one woman every six days in Canada continue to be murdered by their male partner. We don’t have much in terms of criminal justice end to protect their lives. Women who leave also are left to face the issues around custody and access with their kids. Many battered women are mothers and that makes them twice as vulnerable because they can’t simply escape with their children without facing family law system. And then there’s money, social welfare, long term housing, all the things women need to create new lives of freedom and safety.
MM: Now I would like to talk about the way the media has covered your book. A lot of them seems to have misrepresented or misunderstood your argument. What were your actual goals with regards to this book?
ES: I knew anti-feminist women journalists would come after me and be highly critical of my book. I was very aware it would receive negative attention from certain part of the media. I was blatantly surprised but I had the opportunity to do a lot of media in consequence to respond and explain in rational and calm manner that what was being said was misrepresentation. I don’t resent it, because I got a lot of publicity out of it. I was disappointed though that most of them didn’t even read the book, and went after my conclusion and recommendation at the end of the book. IT is much more rational if you have read the book and see what I was basing it on.
MM: What was the most frustrating misrepresentation?
ES: The main one that has been circulated is that I encourage women to kill men. To be talking about women’s right to use self defense is in no way an encouragement for women to kill men. The message that I was trying to get out is that what we want to saves lives of women, men and children, need to do is invest in women’s safety. When women are safe, and can exit with the children and protect their children, men do not die, and that was the most important message. This means that men who were concerned about that ought to be supporting the feminist movement in this country, support the social welfare system that allows women to leave those men safely. Women are killed every six day, and men are killed by their wives once a month. This number can continue to go down with women’s movement that has assisted in providing safe exit for women. We want to reduce men’s death even further.
MM: Can you talk about the law in terms of how to address this issue of battered women who killed their partner in self defense. What are you advocating for?
ES: In the conclusion in my book, I say our law of self defense is a pretty good law, before and after it went through a reform. The law allows for self defense to be argued and give women the opportunity to demonstrate with evidence that they needed to use self defense in response to violence. Problems that we have that I note is not with the statutory law of self defense, by in large, but with the charging and prosecutorial practices, with the guilty pleas, where women plead guilty, especially the aboriginal women who are overrepresented as guilty rather than go on for trial. The main problem that I saw is overcharging of women, who are usually charged with murder, usually second degree but some charged with first degree murder. Even though based on my data, there’s no reasonable prospect of conviction for murder of battered women. If there’s evidence that woman has experienced abuse, Canadian jurors don’t convict those women of murder. They convict them of manslaughter or they acquit them. I’m not saying that there aren’t exceptions though where murder charge is appropriate. By charging them with murder, a tremendous pressure is put on women to plead guilty to manslaughter and abandon defense of self defense argument, because it’s so risky for them to go to trial on a murder charge, if she fails in herself defense argument and is convicted of murder they get mandatory life sentence. There’s no leniency a judge can invoke to recognize the abuse and suffering that the women went through. Majority of them plead guilty to manslaughter and avoid a trial, abandoning a legitimate claim to self defense, because they can’t bear the stress and emotional cause of a murder trial. That woman will have to testify in detail in public, and be cross examined of her experiences of rape, violence, coercion abuse, while listening to other people’s account on how they don’t believe her or their own version of her reality. Her children might be called in to testify against her which is nothing a mother should to go through. This is why it’s not surprising that a lot of women in this position abandon their self defense, and just plead guilty to get it over with. My recommendation is charge for manslaughter not murder, and we should have statutory escape patch for juries to recommend to a judge for mercy, to sentence less than the mandatory life sentence. This is actually one of the recommendations from 1997 self defense review from judge Lynn Ratushny, it’s not a recommendation that would apply only to women of course, but you could limit to cases of prolong or repeated trauma and abuse where juries can potentially make a recommendation to a judge. It wouldn’t be a requirement, but in the hands of a jury to make the recommendation.
MM: Thank you so much for your time and work. I am so glad that we had opportunity to talk with you.
If you could do something to end violence against girls and women, wouldn’t you?