The law, and history, speak for themselves [wife abuse]

Posted on December 17, 2013 in Equality Debates – Full Comment
17/12/13.   Elizabeth Sheehy

I wish I were the radical that columnist Barbara Kay claims I am in her column.

Instead, I am a rather boring law professor who knows history and the law. The Ottawa Citizen reported that I said women are justified in killing their abusers, even if they are asleep or passed out. The thing is, back in 1982, a Nova Scotia jury of Jane Stafford’s peers said just that, when they acquitted her of murder after a lengthy trial for the death of her husband Billy Stafford — of Life With Billy fame.

She shot Billy while he was passed out, after drinking himself into a state of oblivion. He was a terrifying bully whose violence was so notorious that Staff Sergeant Peter Williamson said at the police station (and admitted at her trial), “[s]he deserves a medal. She probably saved a couple of our officers’ lives. He always had loaded guns. I’m sure we would have gone out there one day and he would have shot one of us.”

But if you don’t trust the ordinary members of the community, as represented by Jane Stafford’s jury, to set standards, how about our highest court? In 1990, the Supreme Court of Canada said that battered women are entitled to the defence of self-defence (a “justification”) even if the threat posed by the man is not “imminent.” Justice Bertha Wilson explained, relying on U.S. authority, that if we required battered women to wait for the “uplifted knife,” we would be condemning them to “murder by installment.” Angelique Lyn Lavallee’s jury acquittal was restored by the Court, even though she shot her partner in the back as he left the room after threatening that she would “get it later.”

Lavallee also said that “Battered Woman Syndrome” evidence is admissible to support self-defence, in order to rebut stereotypes and misconceptions — to answer the question “Why didn’t she leave?” Apparently, as the outraged response to my comment shows, many Canadians remain unaware of the tremendous barriers to “just leaving” for battered women.

My book, Defending Battered Women on Trial, uses Bonnie Mooney’s transcripts from her civil trial to show readers what happened when she turned to police and the courts to try to escape Roland Kruska. Women like Bonnie face an escalated risk — nine times, to be exact — of being murdered when they try to walk away from such men. There are no guarantees of police protection or appropriate criminal justice response, as her case sadly illustrates.

Welfare rates and policies force women back into the arms of abusers, our shelters are bursting, turning away women and children every day in this country

In fact, a woman is killed every six days in Canada by her male partner or former partner. Family courts cannot be relied upon to keep batterers away from women’s children — far from it. Welfare rates and policies force women back into the arms of abusers, our shelters are bursting, turning away women and children every day in this country, and the independent women’s movement — the most important force worldwide in reducing women’s inequality and vulnerability to male violence — is under attack by government and in the media.

Battered women who kill are desperate. I would never advocate homicide and I don’t in my book. Instead, I ask readers to judge for themselves. Read the transcripts of battered women’s murder trials. See the evidence and the arguments advanced by prosecutors and defence lawyers. Consider the woman’s options, in real life, not those imagined by those who are not walking in those shoes. I tell the stories of 11 women in my book — 10 who killed abusive men — so that ordinary Canadians do not have to rely on the opinions of columnists or academics like myself.

It’s true that in my book’s conclusion I make some recommendations that might seem “biased,” for example urging prosecutors to charge manslaughter rather than murder. But the fact is that among the 91 women whose cases I found, only four were convicted of murder and two of conspiracy to murder; seven were either not charged or had their charges withdrawn; 22 were acquitted; and the rest either pleaded guilty to, or were convicted of, manslaughter. Is it an appropriate expenditure of taxpayer dollars to prosecute battered women at full tilt, in light of the compassionate response of Canadian judges and jurors who hear all the evidence? Is it a just response, for battered women and their children, who have already experienced captivity and for whom testifying at trial is a “trial by ordeal”?

That’s for those who read my book to decide for themselves.

National Post

Elizabeth Sheehy is a Law Professor at the University of Ottawa Faculty of Law.

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Barbara Kay: Prof makes bizarre plea to place battered women above the law

When ideology takes up the brain space normally reserved for reason and the golden principle of equality under the law, the very best minds can go AWOL.

That seems to be the case with University of Ottawa law professor Elizabeth Sheehy,whose new book, Defending battered Women on Trial, will be released Dec 15. Professor Sheehy’s thesis is that women who experience extreme chronic abuse from their male partners should have the right to kill them pre-emptively — in their sleep, say, or when they least expect it — without fear of being charged with murder. Murder involves a mandatory minimum — 25 years for first degree murder and 10 for second-degree — and this, according to Sheehy, constitutes a “huge, huge barrier” to such women.

Sheehy’s solution is a “statutory escape hatch” that would preclude mandatory minimum sentences. In fact, Sheehy would prefer battered women be charged with manslaughter, in which case they could argue self-defence “without bearing the onerous consequence of failure.” “Why,” she asks, “should women live in anticipatory dread and hypervigilance?” She likens such women to prisoners of war, and their lives with their abusers as a similar form of captivity. Just as it is the duty of prisoners of war to kill their captors in order to escape, she claims our attitude should be, “you were right to kill to save your own life.”

Sheehy’s “logic” is flawed on many levels. To start with the obvious, the situation of psychologically imprisoned women in homes cannot be compared to physically constrained soldiers. Battered women are almost never physically imprisoned and, except in rare, geographically isolated cases, can, but choose not to, escape. Women’s shelters abound throughout  Canada. And, as has been illuminated in a number of high-profile cases of intimate partner violence allegations, police are highly sympathetic and responsive to abused women’s pleas for help.

That women with psychological problems do elect to stay with their abusers — it’s called “learned helplessness” in the jargon — is a matter for psychologists, not the law. In fact, “battered woman syndrome” (BWS) is merely a theory, with the “science” behind it too flimsy to support any change to the legal codes. (See David M. Paciocco’s 1999 book, Getting Away with Murder: the Canadian criminal justice system. Ironically, Paciocco was a colleague of Sheehy’s at Ottawa U’s law faculty.) Moreover, BWS has been rejected in other high courts, such as Australia’s, which used Canada as a (negative) precedent.

Sheehy says that charging battered women with murder is “so arbitrary when you know that there’s no other way that a woman can spontaneously defend her life.” But “spontaneous” suggests that the woman’s life is in imminent danger, in which case a plea of straightforward self-defence is available to her. That is not the the BSW defence, which argues precisely the opposite – that only these particular women should be allowed to kill with calculation aforethought and be exonerated anyway. In BWS cases, there is always a question of whether there was “no other way” to handle the situation. Instead of killing him in his sleep, why not leave in his sleep? Spontaneity is not applicable here. Sheehy’s proposal would effectively make battered women the police, judge and jury in their own cases.

What about children who are chronically abused? Can they kill their parents with impunity? After all, child battering is an even greater abuse of trust than intimate partner violence

But let’s take Sheehy’s curious strain of logic to its own conclusion. In a recent case in Toronto, a wife prodded her new boyfriend to torture her husband for months. Would he meet Sheehy’s standard for statutory escape if he killed her? What about lesbians whose partners are extremely abusive (yes, it happens)?  What about children who are chronically abused? Can they kill their parents with impunity? After all, child battering is an even greater abuse of trust than intimate partner violence. What about the police? Should we endorse the killing of criminal suspects they know are a future high-risk danger to society?

Sheehy says that a third of the male-partner killings she studied – 29 of 91 – resulted in no conviction or charges, and professes to be “pleasantly surprised” about that.  Any objective observer would find that ratio quite high and proof that the law already takes a highly sympathetic view of BWS. Sheehy is clearly not objective. She is an ideologue, whose gender-biased advocacy has been honoured by the Canadian Bar Association. Which begs the questions: How can a Bar Association throw centuries of hard-won legal protections out the window in the name of political correctness? And how can a faculty of law endorse such intellectual corruption in their classrooms?

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