Science and Syndrome Evidence
| Author | Alan D. Gold |
| Pages | 161-197 |
Chapter
7:
Science
and
Syndrome
Evidence
Battered Woman
Syndrome
An
important decision
in the
area
of
expert evidence that highlights
the
questionable
scientific nature
of
many psychological pronouncements
is
the
leading authority
on
battered woman syndrome, which became
a
rec-
ognized
area
of
expert evidence when
the
concept
was
accepted
by the
Supreme
Court
of
Canada
in
1990
in R. v.
Lavallee.1
It was not the
Court's
finest hour,
as far as
expert evidence
is
concerned.
Since
then, some steps towards limiting
the
judicial
acceptance
of
this
material
have taken
place.2
However, Canadian courts have
yet to
admit
the
intellectual
error
made
in
admitting this
evidence.
Elsewhere,
one
judge
has
described
the
concept
as an
"advocacy driven construct
designed
to
'medicalise'
the
evidence
in a
particular case
to
avoid
the
dif-
ficulties
which might arise
in the
context
of a
criminal trial
...
[regarding]
the
accused's motivations
"3
Faigman
and
Wright4
have elsewhere said
all
that
can and
should
be
said
on
this topic. They begin with
an
appropriately scathing denuncia-
1
[Lavallee].
2
R. v.
Malott,
R. v.
D.S.E (1999),
23
C.R.
(5th)
37
(Ont. C.A.);
R. v.
Trombley
(1998),
126
C.C.C.
(3d)
495
(Ont. C.A.),
aff'd
3
Osland
v.
The
Queen
(1998),
159
A.L.R.
170 at
para.
161
(Austl.
H.C.).
4
David
L.
Faigman
& Amy J.
Wright, "The Battered Woman Syndrome
in the Age of
Sci-
ence"
(1997)
39
Ariz.
L.
Rev.
67 at 67.
[161]
SEVEN: SCIENCE
AND
SYNDROME EVIDENCE
tion
of
Lenore Walker's
book,
The
Battered
Woman^
which
was so
uncritically
accepted
and
figured
so
prominently
in
Justice Wilson's judg-
ment
in
Lavallee:
The
battered woman syndrome illustrates
all
that
is
wrong with
the
law's
use
of
science.
The
working hypothesis
of the
battered woman syndrome
was
first
introduced
in
Lenore Walker's
1979
book,
The
Battered Woman.
When
it
made
its
debut, this hypothesis
had
little more
to
support
it
beyond
the
clinical impressions
of a
single researcher. Five years
later,
Walker
published
a
second book that promised
a
more thorough investiga-
tion
of the
hypothesis. However, this book contains little more than
a
patchwork
of
pseudo-scientific methods employed
to
confirm
a
hypothesis
that
its
author
and
participating researchers never seriously doubted.
Indeed,
the
1984
book would provide
an
excellent case study
for
psycholo-
gy
graduate students
on how not to
conduct empirical research. Yet, largely
based
upon
the
same
political
ideology
driving
the
researchers, judges have
welcomed
the
battered woman syndrome into their courts. Because
the law
is
driven
by
precedent,
it
quickly petrified around
the
original conception
of
the
defense. Increasingly, observers
are
realizing that
the
evidence
pur-
portedly supporting
the
battered woman syndrome
is
without empirical
foundation,
and,
perhaps more troubling, that
the
syndrome
itself
is
inimi-
cal
to the
political ideology originally supporting
it. In
short,
in the
law's
hasty
effort
to use
science
to
further
good
policy,
it is now
obvious
that
the
battered woman syndrome
is not
good science
nor
does
it
generate good
policy.6
Another author
put it
more dispassionately:
[T]he largely unrestrained admissibility
of BWS
[battered woman
syn-
drome]
cannot
be
explained solely
on the
basis
of
evidentiary
doctrine
and
scientific
validity. Instead,
it
involves politics
and
reflects
a
normative judg-
ment typically associated with changes
in
criminal liability rather than
evi-
dentiary
admissibility.7
5
(New
York:
Harper
Collins,
1980).
6
Faigman
&
Wright, above note
4 at 67.
7
Robert
P.
Mosteller,
"Syndromes
and
Politics
in
Criminal Trials
and
Evidence
Law"
(1996)
46
Duke
L.J
461.
[162]
EXPERT
EVIDENCE
IN
CRIMINAL
LAW
It
is one
thing
to
enunciate
a
new, normative, criminal
law
rule regard-
ing
self-defence,
to the
effect
that
a
woman
in an
abusive relationship
may
kill
a
sleeping, despicable partner
in
self-defence, even absent
the
"imme-
diacy
of
threat" requirement generally required
by the law of
self-
defence.
But
such change,
for
example,
by a
statutory amendment would
be
fully
debated (and
I
hope
easily
defeated).
However,
it is
quite another
thing
to
justify
such
an
amendment
by
judicial
pronouncement
as a
"common law" change, based allegedly
on
"psychological science,"
especially
when
the
science
is
bogus.
What
the
Court
did in
Lavallee
was
scientifically
indefensible.
It
pur-
ported
to
recognize
a
descriptive rule (people with
a
certain condition
behave
a
certain
way
because
of the
condition they have developed)
that
was
claimed
to be
derived
as a
matter
of
psychological science.
By
labelling
the
situation
of a
battered woman
as a
syndrome,
the
accused's
factual
claim
of
victimization
— but one
within
the
sphere
of
"ordinary"
or
"normal" human
life
— was
transmuted into
a
topic
for
expert testi-
mony.
There was,
and is,
simply
no
empirical data
to
support
the
claims
accepted
in
Lavallee
as
factual
and
descriptively accurate.
The
Supreme
Court recontoured
the
landscape
of
self-defence
in an
ideologically
and
politically
popular manner
in
Lavallee.
But its
descriptive,
factual,
and
supposedly scientific
support
for
that
exercise, which
was
claimed
to lay
in
the
psychological pathology
of
abused women
who
killed their suppos-
edly
despicable husbands,
was
scientifically
bogus.8
Lavallee opened
the
door9
to a new
body
of
expert evidence char-
acterized
by the
following logic: certain behaviours cannot
be
accurately
translated
by a
trier
of
fact
but
must
be
"interpreted"
for
them
by an
expert, usually
a
clinician. Such translation
is
permitted when
the
behav-
iours
can be
viewed
as
related
to a
"syndrome" being suffered
by the
8
David
L.
Faigman,
David
H.
Kaye,
Michael
J.
Saks,
&
Joseph
Sanders,
Modern
Scientific
Evidence,
2
vols.
(St. Paul,
MN:
West Publishing, 1997) vol.
1, c. 8,
"The Battered Woman
Syndrome
and
Other
Psychological
Effects
of
Domestic Violence against
Women,"
319—79,
especially
at
351—79;
Ian
Freckelton
&Hugh
Selby,
Expert
Evidence,
5
vols.
(Sydney:
The
Law
Book Company) [looseleaf, 1993 plus updates
to May
2002],
c. 13,
"Novel
Psychologi-
cal
Evidence."
9 As if to
prove
the
adage
"Give
him an
inch
and
he'll
take
a
mile,"
proponents
then
tried
to
use
BWS as
affirmative
evidence
of
guilt.
In Roy
Dale
Ryan
v.
State
(Wyoming),
(Wyo.
1999),
the
court
rejected
as
inadmissible
the
submission
that
testimony
on
battered
wife
syndrome
that
goes
beyond
the
victim
to
suggest
that
batterers kill when faced with
separation from
the
victim
and
thus supports
the
prosecution's theory
for the
homicide
charged.
[i63]
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