How an expert witness’s report can help the Court – jurors, judges, and lawyers – to see the massive iceberg of gender bias and other assumptions hidden beneath the surface.
- The community, courts, and tribunals need to learn emotional violence leaves a legacy that can be far more damaging and enduring than broken bones and bruises.
- The community, courts, and tribunals need to learn sexual assault by a husband, boyfriend, or partner produces the same harm as rape by a stranger – in fact, in some ways more.
- The community, courts, and tribunals need to further understand some battered women become like hostages in the home, unable to leave, and for some the threat of violence is a constant.
- The community, courts, and tribunals need to learn one person’s ‘normal’ response to harassment, abuse, and assault is not natural for another.
Domestic Violence Research Case Example: Battered Women Who Kill
When we engage with the experience of battered women who’ve killed their violent partners, the hidden iceberg of gender bias and other assumptions is very much revealed.
Did the accused believe upon reasonable grounds it was necessary in self-defence to do what she did? If the accused had that belief and there were reasonable grounds for it, or if the jury is left with a reasonable doubt about the matter, then the accused is entitled to an acquittal.
The underlying question to be asked though is, ‘Given the holistic model of law and culture in Australia with its gender inequality, gender bias, and stereotypes, does this test, which subjects the accused’s belief that the act of violence is necessary in self-defence to so-called subjective and objective notions of reasonableness, include battered women’s experiences?’
As an academic who has performed extensive research on self-defence, Professor Patricia Easteal AM would have to say that objectivity in that context, as one would expect from the contextual big picture approach, is interpreted through a dominant kaleidoscope that excludes the victims’ experiences.
Why doesn’t the battered woman simply leave her partner?
Both the belief one’s life is in danger and force is reasonable in the circumstances tend to be interpreted through the gender-biased lens of the common law. Despite legislative reform, courts and jurors often appear to see the battered woman’s belief in serious harm as unreasonable or mistaken when she has killed her batterer
Some judges and jurors, just as many did in a VicHealth 2014 community attitudes survey, are still unable to understand why a battered woman does not simply leave her partner? And, why did she strike him 14 times? Isn’t that excessive force? How could it be reasonable or immediate when he was asleep or passed out?
Each of these questions is the consequence of invisible unconscious bias, assumptions, and the inability to understand the battered woman’s reality and therefore a failure to understand her act of violence as one of self-preservation.
Patricia Easteal has had the opportunity to be an expert witness for a number of women being tried for murder. She has also worked with others on mercy appeals for battered women serving life sentences. Easteal’s reports and testimonies respond to those questions. She explains to judges and jurors why the battered woman’s act was reasonable, for instance, why she had no other recourse. And, why she couldn’t just leave.
Professor Easteal describes to the court how abuses become so normative, victims may trivialise them to the point of invisibility. Indeed, the bizarre becomes normal in the victims’ reality of family violence. As one victim she interviewed put it:
‘Following an assault, I pretended nothing happened. I would usually shower or sleep. He would do the same, and was sometimes actually nice following an assault – he would hold me and stroke my hair.’
And,
‘So, you stop fighting it, because you just can’t keep up with it. But the controlling continues without a break. You adapt to it. Eventually, what was once strange becomes normal. You eventually stop thinking of yourself as a person. Your feelings are of no consequence.’
Systemic Ignorance of the Value of Expert Court Reports and Evidence
Easteal explains the erosion of personhood to the judge and jury, and how proportionality must be seen within the victim’s kaleidoscope of the dynamics of domestic violence – that her action is not in response to just one physical bashing incident but a response to an array of manifestations of control that are soul destroying and ultimately, very isolating – if not physically, certainly emotionally – as the shame she experiences keeps her from breaking the secrecy and silence.
We know the law routinely fails to accommodate the experience of family violence victims. The lack of expert family violence evidence in a number of Victorian defensive homicide cases such as Black, Creamer and Edwards could be indicative of a systemic ignorance of the value of family violence evidence.
Even without explicitly interpreting the accused’s actions as the result of battered woman syndrome or battered woman’s reality, an expert does not solely help judges and jurors learn more about the violent antecedents in the specific case, but also, by substantiating her evidence, the woman’s testimony may then be seen as more credible.
Battered women, as noted by Carline and Easteal, ‘generally are not the best witnesses.’ Victimisation and low self-esteem – coupled with psychological defence mechanisms triggered by ongoing abuse, including minimising, rationalising, and disassociation – ‘can make disclosure and testimony problematic’. This is where expert evidence and court reports can prove to be invaluable.
What is ‘normal’ behaviour for a Victim of Domestic Violence?
The latter point was acknowledged by Marcia Neave AO, who referred to Patricia Easteal’s expert court evidence in Williams’ case, and suggested this, ‘illustrate[s] the important part that such evidence can play,’ (‘The More Things Change the More They Stay the Same: Homicide Law Reform in Victoria’ in Kate Fitz-Gibbon and Arie Freiberg (eds) Homicide Law Reform in Victoria: Retrospect and Prospects, Federation Press, 2015, 10, 21) and by Heather Douglas, ‘Social Framework Evidence: Its Interpretation and Application in Victoria and Beyond’, also in Homicide Law Reform in Victoria: Retrospect and Prospects at105, where she observed, ‘[n]otably, a law professor and family violence expert, Patricia Easteal, gave evidence explaining the complexity of family violence’.
Therefore, what we see as ‘normal’ can be changed. Experts like Easteal in Court can provide instant, ‘on the spot’ education, and assist decision-makers in identifying their own unconscious perceptual biases. We show exactly how an action which intuitively seems alien, does in fact fit within someone else’s reality. We can redefine what is ‘reasonable’ or ‘ordinary’ behaviour for specific individuals.
New domestic violence research is creating a common understanding of the manifestations, dynamics, and effects of violence against women – a shared picture at the end of the kaleidoscope or lenses.
To learn more about Expert Reports for Court, Access to Justice, Gender Bias, and Domestic Violence Research, contact Legal Light Bulbs now.
