Justice

Victims who kill

Judges split over the battered woman syndrome

JOHN GEDDES February 23 1998
Justice

Victims who kill

Judges split over the battered woman syndrome

JOHN GEDDES February 23 1998

Victims who kill

Judges split over the battered woman syndrome

JOHN GEDDES

Justice

The crimes of Margaret Ann Malott do not match the stereotype of an abused woman acting in self-defence. On March 23, 1991, she loaded a .22-calibre pistol, put it in her purse, and went for a drive with her former common-law husband, a drug dealer who had abused her for nearly two decades before they split up a few months earlier. She shot him to death in the car. Then she took a taxi to the home of his new girlfriend and shot and stabbed the woman, who survived to testify in court.

While Malott’s lurid trial in Windsor, Ont., left no doubt about the cruelty she had endured from the man she killed, her defence based on the so-called battered woman syndrome failed. She was found guilty of seconddegree murder—a conviction upheld last week by the Supreme Court of Canada.

But the Supreme Court went much further than merely reaffirming the original verdict. The country’s top judges took full advantage of their first chance in several years to consider the questions surrounding abused women who kill—one of the most contentious issues in criminal law. The main judgment, written by Justice John Major, spelled out more clearly than ever before exactly how a trial judge should instruct a jury in such cases. Among Major’s main points: judges must explain why a woman might stay in an abusive relationship and not flee when her own life seems in danger. The ruling comes at a key moment for federal Justice Minister Anne McLellan. A senior justice official told Maclean’s the department is nearly ready to launch formal consultations with lawyers and women’s groups on how the law on selfdefence can be changed to bring it into line with new thinking on abusive relationships. McLellan’s goal is to propose Criminal Code amendments to the provinces next fall.

As the Malott case showed, merely proving that an accused woman was abused is not enough to get her acquitted. Since its precedent-setting ruling in the Lavallee case in 1990, the Supreme Court has allowed expert testimony on the psychological effect of abuse to support a self-defence argument. The evidence can be taken to show why an accused woman might have reasonably believed she needed to strike out at her abuser to stop him from injuring or even killing her. After a review last year of nearly 100 cases of convicted women who say they killed in selfdefence, Ontario provincial court Judge Lynn Ratushny urged Ottawa to free seven of the women. The government acted in five cases, but decided that two of the women were too dangerous to be let out of prison.

The Supreme Court was unanimous in dismissing Malott’s appeal, but issues raised by the case divided the court along gender lines. Justice Claire L’Heureux-Dubé wrote her own reasons, supported by the other woman on the court, Justice Beverley McLachlin. L’HeureuxDubé argued for an expansive view of what sort of woman deserves to have her history of abuse taken into account. “It is possible that those women who are unable to fit themselves within the stereotype of a victimized, passive, helpless, dependent, battered woman will not have their claims to self-defence fairly decided,” she writes. With McLellan poised to wade into the issue, the split on the Supreme Court could be a sign of wider divisions to come among lawyers and lawmakers.