Conditional Justice

• Author: David M. Paciocco
• Pages: 47-65

CHAPTER

^

Conditional

Justice

A

her

thirty-five years well. Both

life

and

lifestyle

had

been hard

on

her.

On 24

November

1993

life

and

lifestyle proved

to be

even

harder

on her

common-law husband

of

three

years, Vincent

Foley.

That

was

the

evening

that

Lisa

Ferguson shot

him to

death.

Vincent Foley

and

Lisa Ferguson

had

been living together

for

three

years

or so,

along with Lisa's young son. They lived

on a

small hobby

farm

raising

eighteen beef

cattle

in

Woodlawn,

Ontario,

not far

from

Kanata,

the

home

of the

Ottawa Senators. Vincent worked

on and off as an

ele-

vator repairman while

Lisa

tended

to the

farm.

The

setting

may

have been

idyllic,

but

these

people

did not

live

in

bliss. According

to

neighbours,

when

the

countryside became

quiet

at

night near Woodlawn,

it did not

always

become tranquil. Vincent could sometimes

be

heard shouting

and

cursing. Neighbours said

the

relationship

was

abusive

on

both

sides.

According

to

Lisa, though,

the

real abuse,

the

kind

that

shatters bones

and

the

human spirit,

was

one-sided.

She

claimed

that

Vincent,

a man who at

least

one

neighbour said

he had

seen sober only once, abused

her

physi-

cally,

sexually,

and

psychologically.

She had

left

him on at

least

three

occa-

sions because

of his

abuse,

but

always returned

after

he

promised

to

stop

hurting her.

When Lisa Ferguson

was

abused

by

Vincent Foley

on 24

November

1993,

she

decided

not to

leave. Instead,

she

killed him.

The

tragedy

of

that

evening,

an

event

that

would cause

Lisa

to

attempt

to end her own

life

three

times, started when

she had

complained

to

Vincent about

how

unrea-

sonable

he was

being, expecting

her to do the

chores

and to get his

supper.

He

responded

by

striking

her a

number

of

times

and

grabbing

her by the

side

of the

face

and

throwing

her

down

a

flight

of

stairs.

After

she had

lain

at the

bottom

of the

stairs

for a

while regaining

her

breath,

she

retrieved

a

rifle,

loaded

it, and

went

looking

for

him.

He was not in his

room.

She

went

downstairs into

the

kitchen.

He was not

there.

She saw him in the

living

A t the time of her court appearances, Lisa Ferguson did not wear

48

CRIME

AND

PUNISHMENT

room lying

on the

couch,

the final

resting

place,

it

seems,

of a

number

of

abusive,

alcoholic men. There

she

shot him,

first

once,

and

then again.

At

the

trial

she

testified

that

he was

coming towards

her at the time.

When

she

had

called

for the

ambulance, though,

she

provided

a

different story.

She

can

be

heard

on the

911

tape

that

was

played

to the

jury

saying,

"He's beat

on

me so

many times. He's passed

out

cold

and I

shot him."

At her

trial,

her

soft-spoken, highly experienced attorney, Leonard

Shore,

presented evidence

to

establish

that

Lisa

Ferguson

suffered

from

"battered woman syndrome." Given

the

quality

of her

counsel,

it

would

have

been

an

effective

presentation.

Dr.

Fredrick Shane,

the

best-known

expert

in the

field

in

Canada,

was

called

on her

behalf. According

to the

theory

of

battered woman

syndrome,

women

suffering

from

it can

predict,

through experience,

the

onset

of

violence,

but

they lose

the

ability

to

escape

from

it.

They become trapped

in a

cycle

of

abuse

that

robs

them

of

their self-esteem

and

self-control.

The

fear

builds,

and in

some cases they

come

to

believe they have

no way

out. There

is no

point

in

going

to the

police.

There

is no

point

in

running

away.

They come

to

believe,

the

theory

goes,

that they must kill

to

save themselves. This perspective

is not one

they

acquire

through their

own

fault.

It is the

product

of an

escalating pattern

of

abuse

which ultimately robs them

of

their powers

of

self-determination.

Violence

no

longer remains

a

matter

of

choice;

it

becomes

a

matter

of

sur-

vival.

This

was

what

Dr.

Shane said happened

to

Lisa

Ferguson.1

Had

he

been right,

she

would

not

have been guilty

of

anything.

The

Supreme Court

of

Canada modified

the

defence

of

self-defence

in

1990

to

make

it

available

to

women

suffering

from

the

syndrome who, while

reasonably

fearing

death

or

great bodily harm, form

the

reasonable belief

that

they have

no

choice

but to

kill.2

The

defence

is

remarkable because

it

allows women

to use

fatal

force,

even though

the

threat

they

are

defending

against

is not

immediate. Battered woman syndrome theory

purports

to

explain

how it is

reasonable

for

women

to

believe

that

they

cannot protect themselves simply

by

leaving

or

summoning

the

assistance

of

the

police

or

asking

for the

help

of

others.

The

abuse robs them

of

con-

trol, rendering them helpless

to the

point where self-defence becomes

their only option.

A

conceptual problem arises

in

applying

the

theory

of

battered

woman syndrome.

It has

aptly been pointed

out

that

"it is

hardly

a

sign

of

helplessness

to

acquire

a gun and to

kill one's psychological

captor."3

Whether

it was

scepticism about

the

battered woman syndrome theory,

the

divergence between Ferguson's testimony

and the

911

statement,

or a

simple

refusal

to

accept

the

law's opinion

that

abused women

are

justified

in

killing their abusers based

on

fear

of

future attack,

the

jury

did not buy