Written by Rebecca Fielding, L’27
Introduction
In 1993, Virginia enacted Code § 19.2-270.6 which allows evidence of repeated physical and psychological abuse to be admitted in a criminal trial.[1] Then in 1999, Peeples v. Commonwealth[2] expanded on this allowance of evidence, departing from the previous standard which held the Defense could only introduce such expert testimony if Defendant pled not guilty by reason of insanity (NGRI).[3] In particular, Peeples held that, though the expert testimony was not admissible in that particular case, it is permissible to admit expert testimony in support of defenses other than NGRI, such as heat of passion or self-defense.[4] This decision made it possible for Defendants to admit evidence of domestic violence or abuse to them by their abuser if for the purposes of self defense. That is, though the Court does not use the exact language, “battered person syndrome” could potentially be allowed in as evidence in self defense cases.[5]
Despite evidence of the Defendant being afflicted with battered person syndrome becoming admissible in self defense cases, application of the law became few and far between.[6] Cases that did reference battered person syndrome evidence also proved to be limiting in practice.[7] Though Peeples implies progress in evidence and domestic violence on its face, subsequent case law begs the question whether the application of the law is actually successful. This Blog Post argues that the answer to that question is no; application has not been successful.. It then considers proposed solutions in fixing the applicability of the law regarding evidence of battered person syndrome in self defense. Finally, it considers what may be the best solution for the Commonwealth of Virginia.
Battered Person Syndrome
Battered person syndrome is generally a concept with broad, imprecise definitions. One definition is that battered person syndrome occurs when the abused “assumes responsibility for a cycle of violence occurring in a relationship in which the abuser…has told [the abused] the first violent episode was [the abused’s] fault.”[8] Another definition is battered person syndrome occurs when a person “suffers from repeated physical and mental abuse by [their] partner to the point that [the partner] can force [them] to do something against their will.”[9] Marti Tamm Loring and Pati Beaudoin who describe battered persons as coerced victim-perpetrators as those who have been physically and emotionally abused into submission.[10]
In any case, most definitions include common characteristics of those who suffer from domestic violence from their partner. These include: a cycle of violence[11] , verbal abuse typically accompanying physical abuse[12], fear for battered person’s life and lives of their children if applicable[13], the irrational fear that abusers are omnipresent or omniscient[14], the belief that the violence against the abused is the abused’s fault[15], and the inability to place such fault elsewhere.[16]
Psychological and Physical Abuse
Note the language in the Virginia Code states “relevant evidence of repeated physical and psychological abuse…” may be admissible.[17] This signals to battered persons syndrome, as one commonality is the cycle and repetition of abuse. The language also acknowledges Loring’s definition of battered person syndrome as someone who suffered repeated physical and mental abuse to the point they can force the abused to do something against will.[18] Here, Loring discusses the use of physical abuse to frighten the abused into submission.[19] Conversely, emotional abuse is the breaking of human spirit, the most painful type of abuse, and the most detrimental to self esteem, and therefore can lead someone to do illegal acts.[20]
The acknowledgement of emotional or mental within the definitions and the law is notable. Though significance is often put on physical abuse, defendants referred to under § 19.2-270.6 are those who suffer both physical and emotional abuse. The impact of emotional abuse, either on its own or in conjunction with physical abuse is significant. Battered persons share traits with those who suffer from PTSD caused by the cycle of violence.[21] Battered persons are also often compared to prisoners of war and hostages regarding how the abuse affected them.[22] Furthermore, battered persons are sometimes put in a “hostage-like” situation wherein their abuser deprives them of control.[23] This in turn “can elicit hostage-like levels of fear, isolation, entrapment, and retaliatory violence.”[24] For these reasons, one can see why Virginia allows expert testimony of physical and emotional abuse as evidence of self-defense.
Imminence or Evidence Issues
It is not just the lack of case law and annotations on § 19.2-270.6 that implies it is not being used efficiently, but the cases that do address it tend to be limiting. Some people have traced this scarcity back to an issue of the imminence element of self-defense in Virginia.
For example, in a Note discussing the application of § 19.2-270.6, Jordan Hodge asks the question “whether the imminent danger element of Virginia’s self-defense law should be modified to the standard of a “reasonable person living in domestic violence when a woman kills her abuser in an act of self-defense,” thereby addressing this issue head-on.[25] Hodge looks at the cases Commonwealth v. Sands[26] and Commonwealth v. Cary[27] to answer the question. Hodge argues “these cases illustrate the difficulty that battered women face in the courtroom when they wish to assert a self-defense claim and why Virginia should modify the overt act element of such a claim to make this defense more accessible to them.”[28] Likewise, Shana Wallace identified the definition of imminence as the source of problems with using battered person syndrome as a defense.[29]
On the other hand, cases like McDowell show the problem with applying the code may be an evidence issue.[30] In contrast to Hodge, Wallace, and Lenkevich—Fine in his Note proposes an evidence solution, thereby forming BWS application as an evidence problem.[31]
Evaluating Proposed Solutions
I. Modifying Self Defense Elements (Imminence):
To address the issues with the application of the imminence element in battered person syndrome defense contexts, Wallace suggests jurisdictions take on the international meaning of “imminence.”[32] This would replace the amorphous understanding of what the syndrome is with factors to determine if imminence was met.[33] Doing so would alleviate the prejudices from factfinders and avoid misconceptions about battered persons syndrome.[34] Furthermore, it would characterize the actions of the abused in a legally recognized experience rather than a mental illness by reducing the stigmatization of a “syndrome” or illness.[35]
Hodge suggests the imminent danger element in Virginia specifically should be modified to a reasonable person living with domestic violence or a reasonable battered person standard.[36] The overt act element of self-defense in Virginia is a hurdle for the Defendant if they wish to introduce evidence of abuse in domestic violence.[37] The reasoning is based in equal protection and one’s right to a fair trial—the right to be heard and seen.[38] However, one cannot be heard or seen with the current overt act element as it stands; it follows that is what must be modified.[39] And Cary and Sands suggests that the overt act element is in fact the issue, at least in Virginia.[40] If the overt act element is the issue, addressing that element is the straightforward immediate answer.
Lenkevich makes a similar argument. She suggests the law should consider special domestic violence circumstances.[41] Lenkevich references Downs who persuasively argues the actions of a battered person are not actually irrational but rather hyper rational.[42] It is completely rational for someone regularly experiencing abuse to perceive an abuser’s signs and non overt actions with hypervigilance, especially when once has been subjected to repeated abuse over a long period of time.[43] Downs questions who judges or juries are to determine what is reasonable for a battered person to think if they have never been in that situation.[44]
II. Evidence
Fine, however, criticizes Wallace’s suggestion of modifying the imminence element.[45] First, Fine notes Wallace’s argument assumes the conclusion: the modification will enable more battered persons who kill to characterize their actions as justified.[46] Fine suggests this may not necessarily be the goal.[47] Second, Fine argues modifying imminence would not actually change anything.[48] Finally, Fine asserts that modifying imminence on a state-by-state basis is far too radical to be feasible.[49]
Instead, Fine offers a solution by way of modifying the Federal Rules of Evidence.[50] Fine argues this option achieves uniformity and efficiency by making changes on that national stage. Of course the ultimate goal with modifying FRE Fine says, is legal recognition.[51]
However, while this solution addresses Wallace’s problems with feasibility, as it is more mainstream and likely to be adopted, Fine’s proposal is still subject to the same criticism: his solution lacks assurance that it will be effective. If anything, Fine’s argument may even be more susceptible to this criticism. As mentioned previously, people like Hodge suggest modifying the imminence element in direct response to case law. That is, if imminence is a barrier for introducing evidence, the simplest solution is to modify imminence. In that way, modifying imminence is more grounded and thus has a higher probability of making change than changing rules of evidence when the problem is not directly tied to an evidence issue. Furthermore, Fine assumes his own conclusion—that the goal is to achieve recognition.[52] Nationally, modifying the FRE may achieve that goal, however, when it comes to Virginia law, the state already has already recognized battered persons syndrome as a defense with § 19.7-270.6. For these reasons, if the goal is better integrating evidence of battered persons syndrome into affirmative self defense assertions in Virginia, the better solution may be to address imminence as an element of self defense.
Conclusion
In any case, whether the goal is one of recognition on a national level for uniform change or one on a state level, specifically Virginia, for effective change, scholars agree there is an application problem. And the solution to the problem depends on the scope of the issue and the exact goal one wants to reach. Thus, it may be the case that both proposed solutions suggested–modifying imminence as an element of self defense, or one modifying the rules of evidence– may be the “right” solution in their own way, and both are worthy of pursuing.
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Flat design, house illustration from Freepik.
[1] Va. Code Ann. § 19.2-270.6 (West 1993).
[2] Peeples v. Commonwealth, 519 S.E.2d 382, 385 (Va. Ct. App. 1999).
[3] Stamper v. Commonwealth, 324 S.E.2d 682, 688 (Va 1985).
[4] Supra Note 2 at 385.
[5] Marybeth H. Lenkevich, Admitting Expert Testimony on Battered Woman Syndrome in Virginia Courts: How Peeples Changed Virginia Self-Defense Law, 6 Wm. & Mary J. Women & L. 297, 299 (1999).
[6] See e.g. Commonwealth v. McDowell, 98 Va. Cir. 448, 449 (2013) (stating battered persons syndrome has not been applied successfully before).
[7] See id. at 450 (holding that when introducing evidence of physical and psychological abuse, the Defendant must do so such that the proffer identifies an expert and specify such a person has scientific, technical or specialised knowledge that would assist the trier of fact to understand the evidence or determine the fact in issue); Commonwealth v. Cary, 623 S.E.2d 906, 9009, 912, (holding the self-defense requires an overt act and evidence of battered person syndrome was not enough to establish the act); Commonwealth v. Sands 553 S.E.2d 733, 730 (stating the importance of imminence as an element of self defense).
[8] Matthew Fine, Hear Me Now: The Admission of Expert Testimony on Battered Women’s Syndrome-an Evidentiary Approach, 20 Wm. & Mary J. Women & L. 221, 223 (2013).
[9] Lenkevich supra note 5 at 307.
[10] Marti T. Loring & Pati Beaudoin, Battered Women as Coerced Victim-Perpetrators, 2(1) J. Aggress. Maltreat. Trauma 3, 4 (2001).
[11] Fine, supra note 8, at 223; Jordan E. Hodge, He Had It Coming: The Failure of Virginia’s Self-Defense Law When A Battered Woman Defends Herself, 34 Regent U. L. Rev. 143, 147 (2022).
[12] Hodge, supra note 11, at 147.
[13] Fine, supra, note 8, at 223.
[14] Id.
[15] Id.
[16] Id.
[17] Va. Code Ann. § 19.2-270.6 (West 1993).
[18] Loring , supra note 10, at 4.
[19] See id.
[20] Id.
[21] See Fine, supra note 8,at 224; Hodge, supra note 11at 147.
[22] See Loring, supra note 10, at 4.
[23] Evan Stark, Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control, 58 Alb. L. Rev. 973, 976 (1995).
[24] Id.
[25] Hodge, supra note 11, at 145.
[26] Commonwealth v. Sands, 553 S.E.2d 733, 736-37 (Va. 2001).
[27] Commonwealth v. Cary, 623 S.E.2d 906, 912 (Va. 2006).
[28] Hodge, supra note 11, at 153.
[29] Shana Wallace, Beyond Imminence: Evolving International Law and Battered Women’s Right to Self-Defense, 71 U. Chi. L. Rev. 1749, 1751 (2004).
[30] Commonwealth v. McDowell, 98 Va. Cir. 448, 450 (2013) (holding the expert must be identified and shown to have some kind of specialized knowledge.)
[31] Fine, supra note 8, at. 225-227 (discussing issues with admitting battered persons syndrome in evidence regarding relevance, expert witnesses, and character evidence).
[32] Wallace, supra note 29, at 1750.
[33] Id.
[34] See Matthew Fine, Hear Me Now: The Admission of Expert Testimony on Battered Women’s Syndrome-an Evidentiary Approach, 20 Wm. & Mary J. Women & L. 221, 236 (2013); Jordan E. Hodge, He Had It Coming: The Failure of Virginia’s Self-Defense Law When A Battered Woman Defends Herself, 34 Regent U. L. Rev. 143, 164 (2022).
[35] Id.
[36] Hodge, supra note 11, at 145.
[37] Id. at 158.
[38] Id. at 160.
[39] Id.
[40] Commonwealth v. Cary, 623 S.E.2d 906, 9009, 912, (holding the self-defense requires an overt act and evidence of battered person syndrome was not enough to establish the act); Commonwealth v. Sands 553 S.E.2d 733, 730 (stating the importance of imminence as an element of self defense).
[41] Lenkevich supra note 5, at 320.
[42] Id. at 313.
[43] Id.
[44] Id.
[45] See Fine supra note 8, at 236-237.
[46] Id. at 237.
[47] Id.
[48] Id. (arguing admitting evidence that the defendant suffers from battered person syndrome is not the same as a “so-called” battered person syndrome defense.)
[49] Id. at 240.
[50] Id. at 243.
[51] Id. at 244.
[52] See id.