To understand battered woman's syndrome, one must first understand how someone becomes a "battered woman". According to Dr. Lenore E. Walker, the nation's most prominent expert on battered women, a woman must experience at least two complete battering cycles before she can be labeled a "battered woman". The cycle has three distinct phases. First is the tension-building phase, followed by the explosion or acute battering incident, culminating in a calm, loving respite - often referred to as the honeymoon phase. Walker, L., The Battered Woman (1979).
It is also important to understand why battered women stay in abusive relationships. The Court in People v. Aris, 215 Cal App 3d 1194, 264 Cal Rptr 167, 178 (1989) stated that "battered women tend to stay in abusive relationships for a number of reasons." Among those reasons: women are still positively reinforced during the honeymoon phase; women tend to be the peacekeepers in relationships - the ones responsible for making the marriage work; adverse economic consequences; it is more dangerous to leave than to stay; prior threats by batterer to kill self, or children; or to abscond with children; lost self-esteem; and no psychological energy to leave - resulting in a learned helplessness or psychological paralysis.
"Battered woman syndrome describes a pattern of psychological and behavioral symptoms found in women living in battering relationships." People v. Romero, 13 Cal Rptr 2d 332, 336 (Cal App 2d Dist. 1992); See Walker, L., The Battered Woman Syndrome (1984) p. 95-97. There are four general characteristics of the syndrome:
1. The woman believes that the violence was her fault.
2. The woman has an inability to place the responsibility for the violence elsewhere.
3. The woman fears for her life and/or her children's lives.
4. The woman has an irrational belief that the abuser is omnipresent and omniscient.
"Battered woman's syndrome is best understood as a subgroup of what the American Psychological Association defines as Post-traumatic Stress Disorder, rather than as a form of mental illness." IX New York Law School Journal of Human Rights "You've Come a Long Way, Baby: The Battered Woman's Syndrome Revisited" at 117-118; Walker, L., Terrifying Love: Why Battered Women Kill and How Society Responds (1989) at 48.
BATTERED WOMAN'S SYNDROME IN THE COURTS
Battered woman's syndrome has been used in criminal cases since the late 1970s. Experts must qualify to testify on this syndrome as they must in any other case. In the only reported Oregon case on battered woman (spouse) syndrome, State v. Moore, 72 Or App 454, 695 P2d 985 (1985), the expert was not qualified to discuss the syndrome because she had no college degree. ORE 702 states:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
"The court did not reject defendant's defense based on the battered spouse syndrome but ruled that the evidence offered through the counselor's testimony was too remote in relationship to the shooting to be probative of the defense." Id. at 987. Judge Newman, concurring with the majority, gives a lengthy discussion of the importance of battered spouse syndrome and its relevance to a claim of self-defense, stating that "numerous psychiatrists, psychologists and social workers now consider the battered spouse syndrome an accepted basis for identification, counseling and treatment....If a witness qualifies as an expert and a sufficient foundation is laid, evidence of the battered spouse syndrome should be admissible." Id. at 990. In determining relevancy, the court must first decide whether it has enough evidence to decide whether the person was in fact a battered woman. Fennell v. Goolsby, 630 F Supp 45 (E.D. Pa. 1985)
It should be noted that the Moore case supra was decided in 1985. In the years since, numerous studies, articles, court cases and legislation concerning domestic violence and battered woman's syndrome have been introduced to our system of jurisprudence. To date 31 states and the District of Columbia have allowed use of expert testimony on the syndrome and five have acknowledged its validity, but held it inadmissible based on the facts of the particular case. Bechtel v. State, 840 P2d 1 (Okl Cr 1992). In Bechtel, two experts acknowledged that battered woman's syndrome is considered a sub-category of Post-traumatic Stress Disorder which is generally accepted and listed in the Diagnostic & Statistical Manual of Mental Disorders 3-R; "but it is not a mental disease in the context of insanity". Bechtel, 840 P2d at 7.
Although a few cases concerning battered woman's syndrome were heard in the late 1970's, the true watershed case was State v. Kelly, 478 A2d 364 (1985). Kelly stated that the battered woman syndrome, hereinafter referred to as "BWS", is admissible to aid juries in assessing a defendant's perception of danger posed by the abuser. "Evidence of BWS not only explains how a battered woman might think, react or behave, it also places the behavior in an understandable light." Romero supra p.1, 13 Cal Rptr 2d at 341.
The Court in Arcoren v. U.S., supra p.1, 929 F2d at 1241 rejected Arcoren's argument that the expert's testimony re BWS should be limited to cases where it was offered to support a claim of self-defense. Battered woman's syndrome has recently been used in juvenile, divorce and custody actions. In the Matter of Glen G. and Josephline G., 587 NYS 2d 464, 469 (1992) the expert described BWS as "a breaking down of a woman's self confidence and self respect to a point where she no longer knows if she is crazy or not." BWS was used to show that the mother did not have actual ability to intervene to protect her child from the father's sexual abuse. This year, in a Connecticut custody action, Knock v. Knock, 224 Conn. 776, 621 A2d 267 (1993) BWS was found to be relevant to a determination of custody. The court held that the presence of battery in the household has, at a minimum, some effect on the parenting skill of both spouses and the child's response to the parent even after their separation. "It is clear that the trial court considered battered woman's syndrome...as a factor in its custody determination....in addition to other corroborating evidence,...to determine whether defendant was a battered woman. [The Court] allowed [the expert] to testify as to battered woman's syndrome and the effects of battering upon the victim and any children involved, and to give his opinion that the defendant manifested battered woman's syndrome." Id. at 274.
Expert testimony concerning battered woman's syndrome, permitted in 31 states, is still a rather new area of the law. Although the trend in criminal cases clearly permits and even encourages such testimony, only a few civil cases have been reported. In these civil-law cases, BWS has been used by the court in determining a mother's state of mind and why her actions or non-actions were consistent with the syndrome. See closing memorandum for arguments con-cerning the use of BWS in the case at bar. In examining the victim's fitness for custody, the "task for judges is to determine which parent is most likely to provide the child with a healthy, caring nonviolent home". The Judges Journal, "What Therapists See That Judges May Miss", Crites, L., and Coker, D. (Spring 1988) p.43. Discussing the battered woman's emotional state, The Judges Journal article asserts that "[u]nlike her abusive partner, most abused women do not repeat the abuse experience in a second relationship." [Only about 10% do experience violence in future relationships.] "While experiencing the abuse, the woman's emotional state is sometimes marked by depression, somatic concerns, anxiety and passivity. These symptoms, however, are most often linked to the relationship and lessen once she removes herself from the abuse....An abused woman also has to overcome feeling inadequate, crazy, or stupid - something akin to brainwashing - as a result of having been repeatedly told she was these things while in the relationship." Id. at 13.
DOMESTIC VIOLENCE HARMS CHILDREN AND SHOULD BE SERIOUSLY CONSIDERED IN CUSTODY CASES
A number of judicial and legal sources have supported the recommendation that no custody decision be made without taking domestic violence into consi-deration. In 32 states, domestic violence is to be considered in custody cases and in eight of those states, there is a presumption against awarding custody to the abuser. In Oregon, ORS 107.137 is controlling:
(1) In determining custody of a minor child...the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court may consider the following relevant factors:
(a) The emotional ties between the child and other family members;
(b) The interest of the parties in and attitude toward the child;
(c) The desirability of continuing an existing relationship; and
(d) The abuse of one parent by the other.
(2) The best interests and welfare of the child in a custody matter shall not be determined by isolating any one of the relevant factors [above]....
Viewing domestic violence negatively affects the children and all the studies find that placing or keeping children with an abuser is not in their best interest. The Judges Journal article, supra p.4, contains a lengthy and extremely thorough thesis on the effects of abuse on children. "Research has shown that spouse abuse typically does not stem from a relationship problem but arises instead from the man's emotional insecurities, low self-esteem and from a history of abusive behavior seen in his childhood." p. 12; see also Star, Family Services Association of America "Helping the Abuser: Intervening Effectively in Family Violence" pp. 34-35 (1983)
In a 1982 custody challenge, Defendant relied on a statute which, inter alia, provided that the court shall not consider conduct if it does not affect his relationship with the child. The Court in Williams v. Williams, 104 Ill App 3d 16, 432 NE 2d 375 (1982) stated, "Does this statutory provision relegate a wanton and brutal beating by the father of a child's mother to be an act of no significance when determining which parent shall be granted custody? We believe not, for the [Illinois] Act further provides that the court shall determine custody in accordance with the best interests of the child." 432 NE 2d at 376.
How does domestic violence affect children? An authoritative study on domestic violence, Children of Battered Women by Jaffe, P., Wolfe, D., and Wilson, S., (1990) states that children who witness parental violence but are not hit themselves evidence behavioral, somatic and emotional problems similar to those experienced by physically abused children and that in addition to immediate trauma, children who witness such violence suffer from Post-traumatic Stress Syndrome later in life. According to both Children of Battered Women and The Judges Journal, supra p.4 at 11, 14 out of 16 studies state that witnessing violence between parents is a more consistent predictor of future violence than being a victim of child abuse. These children learn that such behavior is acceptable and approved of by their most important role models. They see short term reinforcement/compliance by the victim. They learn to use coercive power as a way to influence loved ones without being exposed to more constructive alternatives. As they get older, boys tend to identify with the aggressor, lose respect for mother and/or experience guilt for not being able to protect her.
EVALUATING PARENTS WHEN DOMESTIC VIOLENCE IS A FACTOR IN CUSTODY CASES
Psychological studies have revealed three fundamental, interrelated reasons why a battered woman is likely to be a better custodian than her abusive mate:
1. A wife-beater's violence damages the emotional health of the couple's children.
2. Placing the child with the batterer perpetuates the cycle of violence by exposing the child to an environment in which violence is acceptable behavior.
3. Mother probably has better parenting skills because she is more likely to have been the children's primary parent.
Custody Litigation on Behalf of Battered Women, National Center on Women and Family Law, Sun, M., and Thomas, E. (1987) Since abusive men are more likely than abused women to continue abuse in a future relationship, it is important not to assume that abuse will not continue. Again, The Judges Journal supra p. 4 at 12, gives insight to the abuser. The article states that in order to get adequate help for his abusiveness, the batterer must go through a two step process: (1) Experience negative consequences for the behavior and (2) undergo specialized spouse abuse counseling. The article cautions that if drugs or alcohol are involved, the abuser must be successfully treated for the drug/alcohol abuse. In order to successfully abstain from abuse, the abuser must, through counseling, accept, understand and believe the following five concepts:
1. Accept responsibility for the abuse.
2. Understand the use of abuse to maintain control of partner.
3. Understand the level of emotional dependency on the part of abuser.
4. Have the ability to recognize low levels of anger and to use anger management techniques.
5. Have empathy for the victim.
In a case similar to the case at bar, it was held that domestic violence during the marriage justified removal of son from father's custody pursuant to a modification action, even though father acknowledged his problems and was participating in therapy. Valenti v. Montgomery, No. 1615 Pittsburg, 1991, Superior Court of Pa., Pittsburg District. In another unreported case, In Re Marriage of Virginia Hill nka Virginia Hayes v. Gary Hill, No. 86-0399, App. Ct. Ill., (1st Dist. 1987), the Court granted modification of a consent decree to change custody from father to mother. The court found that change of circumstance relates to "change as previously shown to the court". In this case, the children were well behaved, doing well in school, and Mr. Hill was an exceptional housekeeper. However, mother was able to show that consent decree was signed five years ago under duress and that father beat her during the marriage and used inappropriate discipline with the children.