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And if this is so, it seems difficult to say any longer “(She) is responsible” rather, we shall put her in jail for the protection of the society, but we shall longer flatter our feeling moral superiority by calling (her) personally responsible for what (she) did – Hospers, J. What Means This Freedom.

In past years, the culpability of a battered wife who turned against her abusing husband was rarely put to inquiry. Even after the developments in psychiatry begun to influence those in law, the status of a battered wife before a criminal court changed very slightly. She was rarely allowed to use her husband’s cruelty as an excuse for her injury on him. It is only recently that the battered wife syndrome has assumed central significance in criminal law.

The syndrome is today being pleaded as a basis upon which the defence of insanity is invoked. In raising a defence of insanity, the battered wife pleads that the syndrome has rendered her so mentally disordered as to be incapable of being declared criminally liable. Under criminal law, a person is not criminally liable for an act if at the time of doing the act he or she was insane.

Challenge

The greatest challenge being faced by the battered wife syndrome in trying to be accepted as a defence is the reluctance by courts to recognise it as a state of insanity. This, however, is not a problem peculiar to the syndrome but one faced by many unidentified mental disorders.

Courts of law jealously guard their practice from ideas that are unfamiliar. Due to the danger of embracing notions that may later be disproved as fallacious, the courts will usually await till an idea has undergone all possible tests and emerged unscathed before they apply them in law.

Defences of insanity are affected most by this judicial obstinacy. Ideas in psychiatry rarely conform to the irreproachable, systematic and rock-steady standard frequently demanded by courts. Explanations for the insane conduct of one person may be very different from the explanations of the same conduct in another. The individualistic nature of insanity does not augur well with logic in law.

A similar challenge to the syndrome as a defence is the strict definition of insanity under the law. For instance, in Kenya, a person is insane only if he or she is afflicted by a disease of the mind which causes incapability to understand what one is doing or knowing that it is wrong.

Position

This Kenyan position was laid in England in 1843 but has since been proved to be unrealistic. In fact, the law on insanity in Kenya has been proved to be so unrealistic that no one can be mad enough to claim its protection. For that reason, it is virtually impossible for a wife in Kenya, however battered, to successfully claim protection of the defence of insanity.

What developed legal jurisdictions have done is to totally disregard the 1843 M’Naughten rules, as the position under Kenyan law is called in England, and to provide for law that is more in line with psychiatric reality. England itself has resorted to these measures.

One of the new rules provided in England and America is known as the Diminished Responsibility and Irresistible Impulse Rules. The rules deal with the ability of the accused to form a rational judgment whether an act is right or wrong and also the ability to exercise willpower to control actions according with that rational judgment. The rules are mostly used to protect people who commit murder due to intense emotional disorders which cause them to act suddenly and impulsively. The battered wife is a perfect example.

Syndrome

The battered wife syndrome can successfully be pleaded under these rules. The battered wife would in this case have to prove that the husband’s cruelty induced a state of abnormality in her that made her incapable of resisting the urge to hurt him. She could also plead that the battering has reduced her into a person given to violent behavior towards others.

Another rule that protects the battered wife syndrome victim is the Durham rule. It was developed by the District of Columbia. The rule protects persons who suffer an abnormal condition in the emotional processes that substantially impairs behaviour control. The rule protects an accused who is so emotionally disturbed as to be unable to control her conduct. Neither the Durham rule nor the Diminished Responsibility and Irresistible Impulse rules are applicable under Kenyan law.

A second defence available to an accused victim is that of self defence. The right of the victim to defend herself against an assailant husband is recognised by law. To rely on this defence, the accused victim will have to show that assaulting her husband was the only way in which she could avert imminent injury on herself.

Question

Here the question of reasonableness will arise. The accused will have to show that the injury she occasioned her assailant was reasonable in the light of the harm he would have inflicted upon her. The victim could thus in many instances be justified in killing her husband, for instance where he attacks her with a dangerous weapon. Cutting of genitals has also been allowed in the case of definite sexual assault.

The syndrome has also caused controversy in self-defence. Consider the case of a wife who lives under the terror of an abusing husband and resorts to killing him as a measure in self-defence. Before court, she argues that though she was not at the time of killing defending herself against a definite action, she was defending herself against a definite person and definite future abuse. Such a case has caused differences between the courts and the psychiatrists. The latter have argued that in the victim’s mind, the murder is the only way out. The victims has in such a case undergone so much abuse that lengthy processes of divorce, separation or criminal prosecution are not realistic remedies. The only definite remedy is one that most immediately and definitely removes the husband as a constant source of pain and suffering to her.

In countries where juries decide on the guilt of the accused, the victim is usually acquitted on a murder charge. The common man, even when convinced that the defence does not apply, is unwilling to punish a long suffering victim who kills a sadistic husband. But where judgment is passed by lawyers, as in Kenya, such a defence will fail. With the continued understanding of the syndrome, it is likely that in future the feelings of the common man may become law and self-defence be allowed in such cases of tyrannical abuse.

The last defence that may be realied on is that of provocation. This applies in the case where a wife is provoked by the husband to the extent where she loses her self-control and assaults the husband.