Dibya Shrestha
Published 2018-11-30
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Abstract
When the victims of wife-beating are subjected to excessive violence, a syndrome occurs, which during a criminal procedure can be pleaded as BWS (Battered Women Syndrome). It is also referred to as Battered Spouse Syndrome. However; the condition is most common among women than that of men. Wife battering is the most common and least reported crimes in all types of society. Some never mention about it and bear the violence while some others seek help from the law. But there also exists a different group of battered women who kill their abusive partner without any remorse. Some scholars have claimed that is a normal reaction from a woman who has been subjected to acute battering and that they should be given defense by law while some others have opposed to this notion of Battered Woman Syndrome. BWS, as a very new concept to the legal and judicial system of Nepal, still has a lot of gaps to be filled. This paper will analyze the concept and practical implications of Battered Woman Syndrome alongside the legal and judicial trend in case of Nepal. Further, this paper will establish why Battered Women Syndrome cannot blatantly be given as a defense in all cases and yet should be considered by the judiciary. In the end, the paper puts forth the necessity of new law/legal provisions in making the judicial decisions objective and justiciable in case of battered women.
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References
2 'Beijing Declaration and Platform for Action', A/CONF.177/20, adopted on 15 September 1995, art 9.
3 Suzanne E. Hatty, Masculinities, violence and culture, Sage Publication, New Delhi, 2000, pp. 46-47.
4 Donald A. Downs & James Fisher, 'Battered Women Syndrome: Tool of Justice or False Hope in Self Defense Cases?', in Donileen R. Loseke, Richard J. Gelles & Mary M. Cavanaugh (eds), Current Controversies on Family Violence, Second Edition, Sage Publications, California, 2005, p. 243. It is also often compared with other species of victimization syndrome such as rape trauma syndrome, hostage syndrome, battered child syndrome etc all of which attempt to establish that a person's mental state has been affected.
5 Sue Osthoff & Holly Maguigan, 'Testimony on Battering and Its Effects', in Donileen R. Loseke, Richard J. Gelles & Mary M. Cavanaugh (eds), Current Controversies on Family Violence, Second Edition, Sage Publications, California, 2005, p. 225.
6 Nancy Gibbs, 'Battered Women and the Courts: An Overview', in Karin Swisher, Carol Wekesser & William Barbour (eds), Violence Against Women, Greenhaven Press, California, 1994, p. 265.
7 Julia J. Chavez, 'The Battered Women is a Legitimate Defense', in Karin Swisher, Carol Wekesser & William Barbour (eds), Violence Against Women, Greenhaven Press, California, 1994, p. 285.
8 If women are exempted for killing their husband in return for the violence caused to her and she is not punished for that action, is not this an unjustified action under the law?
9 Osthoff & Maguigan (n 5), p. 229.
10 Rollins (n 1), p. 234.
11 Sara M. Sandler, 'Battered Woman's Syndrome: Setting a Standard in Florida', Nova Law Review, 2007 available at https://nsuworks.nova.edu/cgi/viewcontent.cgi?referer=https://www.google.com.np/&httpsredir=1&article=1204&context=nlr, accessed on 26 July 2018.
12 Ibid.
13 Shobha Saxena, Crimes against Women and Protective Laws, Deep and Deep Publications Pvt. Ltd, New Delhi, 2004, pp. 168-208.
14 Rollins (n 1), pp 229-232.
15 E.W. Gondolf, Battered Women as Survivors: An alternative to treating learned helplessness, Lexington Books, New York, 1983, pp. 731-732.
16 Chavez (n 7), p. 289.
17 Ibid.
18 Ibid.
19 Osthoff and Maguigan (n5), p. 227.
20 Ibid, p. 242.
21 Donileen R. Loseke, Richard J.Gelles & Marry M. Cavanaugh (eds), Current Controversies on Family Violence, Second Edition, Sage Publications, New Delhi, 2005, p.233.
22 Gerald Caplan, 'Courts should not allow testimony on Battered Woman's Syndrome', in Karin Swisher, Carol Wekesser & William Barbour (eds), Violence Against Women, Greenhaven Press, California, 1994, p. 303.
23 Ibid. p. 305.
24 Stanton Peele, “Battered Women who kill do not deserve Clemency”, in Karin Swisher, Carol Wekesser & William Barbour (eds), Violence Against Women, Greenhaven Press, California, 1994, p. 307; A traditional proverb which reads “An eye for an eye leaves the whole village blind”.
25 Osthoff and Maguigan (n 5), p. 226.
26 Domestic Violence (Offence and Punishment) Act, Nepal, 2009 (Gharelu Himshaa (Kasur ra Sajaye) Ain 2066), s 4.
27 Ibid, s 6.
28 Ibid, s 13.
29 Laxmi Baadi vs. HMG, Decision No. 7246, 2060 (2003).
30 NG vs. Joak Kumari Karki, Decision No. 8223, 2066 (2009).
31 Gurans Devi Lama vs. Radhika Shrestha, Decision No. 9242, 2071 (2014).
32 Saxena (n 13), pp. 168-208.
33 The National Penal (Code) Act, 2017 (Muluki Aparaadh (Samhita) Ain 2074), s 145, sub-s 1(a), See Chapter 14; The clause was added on 2076 B.S. Baisakh 2. It has been stated that, in accordance to prevailing law if confession is made by the accused in a case involving punishment of imprisonment for life pursuant to law, where the adjudging chief of office in view of the circumstance of commission of the offense, realizes the punishment as referred to in law will be so severe if it is imposed on the accused and lesser punishment should be imposed on him or her, then the chief of office shall determine the punishment imposable by law, and explicitly set down in the reference memorandum such opinion as he or she has made, along with the reason for the same, and judgment shall be referred accordingly.
34 The National Penal (Code) Act, 2017 (Muluki Aparaadh (Samhita) Ain 2074), s 39.; The factors mitigating the gravity of offence include: Clauses (a-l) (a)If the age of the offender is less than 18 and more than 75 years old, (b) if the offender has no intention, (c) if the culprit has been provoked or threatened by the victim against whom the culprit has committed the crime, (d) if any grave crime is to be occurred against the offender or any of the close relatives of the culprit, (e) if the culprit confess the crime committed or regret on committing such offense, (f) if the culprit surrenders in front of respective authority, (g) if the culprit confess the crime done and provides compensation to the victim or agrees on providing such compensation, (h) if the culprit has diminished capacity because of physical, mental ability or disability, (i) the extent of loss or harm caused to the victim and the society being insignificant, (j) if the offender rendered assistance in judicial proceedings, (k) if the culprit promise on not committing any criminal offenses in future, (l) if the culprit commits crime under influence.
35 The Criminal Offences (Sentencing and Execution) Act, 2017 (Faujdaari Kasoor (Sajaye Nirdhaaran tathaa Kaaryanwayan) Ain), s 15.
36 Loseke, Gelles & Cavanaugh (n 21), p.245.