Expert Testimony on Domestic Violence: A Discourse Analysis (review)

Melissa Hamilton analyzes the impact of expert testimony about battered women's syndrome (BWS) on appellate judges in Expert Testimony on Domestic Violence: A Discourse Analysis. The author considers sixty-three decisions of the appellate state courts in California that were rendered between 1996 and 2004 in cases where female defendants had been convicted of at least one criminal charge as a result of killing men who had battered them. She concludes that the expert testimony was highly influential. The topic, and Hamilton's research, had excellent potential to inform our thinking on the use of expert testimony on BWS in the unusual research context of appellate courts. Unfortunately, this book does not meet that potential.

Sex stereotypes of proper behaviour for women, gender bias in the laws of self-defence, and myths and misconceptions about female victims of domestic violence have historically prevented battered women¹ from presenting their acts of killing their batterers as acts of self-defence.² BWS was developed to explain to judges and juries the common experiences of, and the impact of repeated abuse on, battered women in order to lend credibility to, and provide context for, the defendant's explanation of her actions.³ Drawing heavily on the work of Lenore Walker,⁴ BWS is a type of post-traumatic stress disorder that relies on a combination of two theories: the "cycle of violence" and "learned helplessness."⁵ It speaks to the mental state of the battered woman, and it is intended to dispel misconceptions that triers of fact have about battered women. Such evidence was first admitted in the United States in the late 1970s. In California, the jurisdiction investigated by Hamilton, a statute was enacted in the early 1990s that permitted expert testimony about BWS to be introduced by either the prosecution or defence when relevant in criminal trials involving charges of domestic violence.⁶ In Canada, the Supreme Court of Canada's 1990 decision in R. v. Lavallee⁷ accepted the need for expert evidence on the effects of abusive relationships "in order to properly understand the context in which an accused woman had killed her abusive spouse in self-defence."⁸

Expert testimony on BWS has been controversial from the beginning, and it raises a number of dilemmas for feminists, particularly in the tensions between agency and incapacity⁹ and between sameness and difference.¹⁰ Concern has been expressed that expert evidence on BWS and its treatment by the courts has led to a new stereotype of the "battered woman" as weak, defenseless, and helpless¹¹ and about the applicability of the stereotype to women of colour,¹²Aboriginal women,¹³ and lesbians.¹⁴ Other feminists have been critical of the use of the term "syndrome" and the medicalization of domestic violence¹⁵ and have argued that testimony on BWS focuses attention on women's responses to violence instead of on men's violence and society's indifference.¹⁶ Still others have noted that women stay in abusive relationships for many reasons, including financial insecurity, fear of losing custody, religious values, lack of alternatives, and fear of separation violence.¹⁷ Finally, critics have questioned whether BWS testimony actually makes a difference to the outcome of cases.¹⁸

It was in the context of these controversies about BWS that we decided to read and review Hamilton's book. One of us (Watson Hamilton) was interested in the text as an example of applied discourse analysis. The other of us (Koshan) was interested in its focus on domestic violence laws. We thought it would be motivating to jointly review a book in which we had not only very different interests from each other but also combined interests that are similar to those of the author. Melissa Hamilton has been an assistant professor at the University of Toledo College of Law since 2007, and her research interests are described as "using...