Defending Battered Women on Trial: An Interview with Professor Elizabeth Sheehy

Saturday, July 19, 2014

To mark the release of the paperback edition of Professor Elizabeth Sheehy’s new book, Defending Battered Women on Trial: Lessons from the Transcripts, we present this interview. Professor Sheehy is a full professor at the University of Ottawa Faculty of Law and currently holds the Shirley Greenberg Chair for Women and the Legal Profession.

Copies of Professor Sheehy’s book can be purchased here:

B4E: Why did you decide to write a book for a more general audience about the experiences of battered women on trial?

Professor Sheehy: I’ve been working on this issue for many, many years, and I’d come to the conclusion that there is a lack of public knowledge about the reality of battered women’s lives. There is a fair amount of prejudice in the media and in popular culture, and I thought it was important for the public to get some insight into the trials of battered women; to have a sense of what the evidence was for and against the woman’s case, who the witnesses were, and what the human costs are for battered women to go on trial. I thought the best way to do that was to rely on the actual words of the transcript. I took inspiration from Constance Backhouse’s Carnal Crimes book. She wrote Carnal Crimes in a way that was accessible to the educated reader. I recall a beautiful review of her book written by Janice Kennedy in the Ottawa Citizen that made me think, I want to write a book like that!

B4E: What made you decide to profile these individual women?

Professor Sheehy: I used a Social Sciences and Humanities Research Council grant to purchase as many transcripts as I could. I had to aim wide because there are cases in which battered women have evidence supporting self-defence but it isn’t actually argued. Some transcripts didn’t go anywhere, but a number of transcripts were very rich. I then had to choose among them. I wanted to choose cases where there were additional sources that I could use to enrich the story. There were some cases where I couldn’t find anything else about the woman’s story – it wasn’t in the newspapers, there were no reported decisions, so I didn’t have a lot to add to develop the depth or complexity of the story.
I also wanted to portray a range of outcomes. I portrayed women who were convicted of murder, women who were acquitted, and women who were convicted of manslaughter.  I also tried to be representative, in particular when it came to the Aboriginal women’s trials. Five of the eleven women I profiled are Aboriginal women, and that’s pretty close to the numerical representation of Aboriginal women as they occurred in my files.

B4E: You speak quite a bit in your book about the particular vulnerability of Aboriginal women.

Professor Sheehy: I was surprised to find that approximately 40 per cent of my cases involved Aboriginal women who had killed. I shouldn’t have been surprised. Aboriginal women are about ten times more likely to be the victims of intimate femicide than non-Aboriginal women. They also experience very high rates of intimate partner violence, as well as stranger violence. In other words, it shouldn’t be surprising that they are more likely to be in the life or death situation of kill or be killed.
I had to think about why Aboriginal women are so vulnerable to male violence, and what particular challenges they face in the criminal justice system. There is some legal history in one of the chapters about how Canadian law is implicated in producing the acute vulnerability of Aboriginal women to male violence, but I also talk about the failure of the criminal justice system to respond to Aboriginal women’s needs, in terms of when they report violence, when they ask for shelter, when they ask for police response, and when they ask for emergency response. We have a very poor record of assisting Aboriginal women in dealing with male violence. There’s a phrase Kim Pate uses, which is that we basically deputize them to defend themselves. There’s something quite cruel about bringing the full force of the criminal law down on Aboriginal women when they have been basically forced to deal with male violence without assistance.

One of the particular challenges Aboriginal women face is finding lawyers who aren’t simply going to plead them guilty. They need access to lawyers who are committed and able to see the applicability of battered woman syndrome evidence or other forms of expert testimony. They need to assist the woman in portraying her vulnerability and her situation to a jury. A number of the Aboriginal women I profiled had criminal records. This makes it more difficult for the lawyer to put the woman on the witness stand in her own defence, so that’s another particular challenge. There are also communication and other cultural barriers. Aboriginal women often have difficulty communicating effectively with white juries, for example, so we also have an issue with the under-representation of Aboriginal peoples in our jury system, and in our courtrooms.

Another thing that happens again and again is that Aboriginal women are portrayed by the Crown as not “real” battered women. That’s a very pernicious pattern that I saw. It’s interesting because in all of these cases there’s actually a great deal of evidence about the woman’s experience of being victimized. The prosecutor is arguing that she’s not a “real” battered woman because she fought back, or because she was mouthy, or because she was assertive. That’s unfair and prejudicial to Aboriginal women. There are files where prosecutors made similar arguments about non-Aboriginal women, but over and over again it’s made with respect to Aboriginal women. What’s particularly problematic about this is that, in almost all of the files, Aboriginal women killed in the course of an ongoing conflict. They are not the ones who kill men who are asleep or passed out.

B4E: The Supreme Court’s decision in Lavallee has had a significant impact on the law of self-defence. Do you think that women get the benefit of what seemed to be the promise of Lavallee?

Professor Sheehy: To my surprise, my research led me to many more acquittals than I knew existed. I found 20 acquittals. There were several other cases where the prosecutor either withdrew the charges or decided not to go ahead with charges at all. That’s one positive impact of Lavallee.
The main impact, though, seems to have been to facilitate guilty pleas to manslaughter. What’s troubling about that is that the woman’s self-defence claims aren’t aired. A manslaughter verdict is still a conviction. It still leads to a criminal record, and the woman is at risk of imprisonment. There are so many negative consequences for women who serve a jail term, but for battered women in particular, it is an excessively harsh punishment to be sent to prison. The woman has already survived captivity, and she is now being placed in a male, authoritarian prison system, strip searched, and separated from her children.

My data tell me that murder convictions after trial are very rare for battered women. In fact, there’s no reasonable prospect of conviction in these cases. If there’s good evidence that the woman was battered, jurors are not going to return a guilty verdict on a charge of murder. They might convict the woman of manslaughter, but they won’t convict her of murder. And that’s the basis for the recommendation I made that Crown prosecutors should charge battered women who kill with manslaughter.     

B4E: What would you say to advocates who are fighting for women to have meaningful access to self-defence?

Professor Sheehy: Women seem to be at very high risk of confessing, and of being tricked into confessing by police, so it’s important for defence lawyers to get to the police station as soon as possible and to work toward securing their release. If you think about it, you’re talking about a woman who has been battered by a male power figure. She is now in the hands of several male police officers after a homicide. She is very vulnerable to their authority, but also to their sympathy, and police officers often play the sympathy card with battered women. So advocates have to be aware that the dynamics are acute for battered women in police custody, and there’s a real need to do whatever they can to protect them from police interrogation.

Defence lawyers would also do well to connect with advocates who work with battered women. A murder trial is a long haul, and a battered woman is unlikely to be able to get through it without the support of a battered women’s shelter or feminist advocates on the front lines. These advocates can also assist defence lawyers in seeing or hearing evidence that they hadn’t perceived or been able to draw out from the woman. Obviously the lawyer is still in charge of the file and has to make important decisions, but collaborating with advocates who work with battered women would assist those lawyers quite a bit, and assist the woman get to get through a trial rather than plead out to manslaughter.

I also think that defence lawyers need to push the boundaries of self-defence as a defence, and using the Charter, including s 15, to do so. Defence lawyers are going to have to challenge the mandatory minimums, because for battered women convicted of manslaughter with a firearm, for example, there’s now a mandatory minimum sentence of four years. They also need to think about the evidentiary issues. When judges make rulings excluding potential witnesses, as I’ve seen them do, defence lawyers need to have equality-based arguments ready and a way to incorporate Lavallee’s principles into evidentiary rulings. They need to explain why it’s necessary to hear from a witness to give the woman the full benefit of Lavallee, or to give her equal protection of the law of self-defence.

B4E: What recommendations would you make for reforming the law of self-defence and the way that violence against women is approached in Canada?

Professor Sheehy: As I say in my book, I think our law of self-defence is pretty fair, and the new law of self-defence is even broader than the law I was using to analyze these transcripts. I think the main challenges really lie in process and in access to justice. Battered women need access to legal aid when they are charged with abusing their male partners. Battered women accumulate criminal records by fighting back against their abusers. Then when they’re on trial for murder, they have a criminal record. I don’t think any province in the country provides legal aid for minor domestic assaults by a battered accused where it’s unlikely that she will go to jail. I think it should be a priority of the criminal justice system to give battered women legal aid, so that they don’t have to plead guilty, so that we do hear their self-defence arguments, so that that woman doesn’t get a criminal record, and so that batterers aren’t further empowered.

We also need to do more to prevent battered women’s deaths. We’ve done a lot for men, in the sense that we’ve reduced the numbers of men who are killed by their female partners to approximately one per month. We know that women’s shelters have gone a long way toward reducing men’s deaths. If you give women an escape, you give them safety, and they’ve got an alternative to killing to escape. What we haven’t done as well is reduce the number of women’s deaths nearly as effectively. We have several provinces with domestic violence death committees, but they don’t have a mandate to implement their recommendations and no one has to respond to their recommendations. That’s an issue that needs to be looked at – how can we use the knowledge we are gaining about intimate femicide to prevent more deaths?

We also need better prosecutorial practices and guidelines. The Attorney General should have policies that tell prosecutors to charge at the level of manslaughter for abused women. There should be some restraints on the kinds of arguments that prosecutors are able to make. They shouldn’t be allowed to argue that a woman who has been abused is not a “real” battered woman. Being a battered woman is not a moral claim; it’s a factual one. 

B4E: Thank you!
Designed by Rachel Gold.