MORE THAN VICTIMS: BATTERED WOMEN, THE SYNDROME SOCIETY, AND THE LAW by DONALD ALEXANDER DOWNS. Chicago: University of Chicago Press, 1997. 309 pp. Cloth $27.50.

Reviewed by Susan Mezey, Department of Political Science, Loyola University Chicago.
 

In MORE THAN VICTIMS, Donald Downs argues against the use of the "battered woman syndrome" (hereafter BWS) in the defense of women accused of committing violence against their batterers. He relies on a variety of sources for information, including case law and interviews with victims of abuse, as well as professionals in psychology and law. Using quotes from his interview subjects makes the book more interesting and helps bring the law to life. On the whole, the book is well-written, and Downs writes knowledgeably about law, science, and literature.

Throughout, Downs expresses a great deal of sympathy for women caught in situations where they are unable or unwilling -- for some reason -- to flee. He insists that "society must get tougher with batterers" (224) and must be more responsive to women caught in such situations by offering, among other things, shelter from abuse. He nicely steers a path between a non-gendered approach to domestic violence, one that attributes family violence to both sexes, and a gendered approach, such as Catharine MacKinnon's, that sees domestic violence as a natural outgrowth of patriarchy. He adopts a modified gendered perspective that acknowledges that women batter men, but also recognizes that women suffer disproportionately from severe domestic violence. Attempting another middle ground, he is sensitive to victims of abuse who strike back, yet refuses to offer them carte blanche to harm their abusers because of their status as victims. He should be applauded for trying to harmonize his desire to send a message that violence is unacceptable with his sensitivity to the needs of battered women.

In Downs's view, while "the reality of domestic violence requires the criminal law to pay great heed to the defense claims of battered women and children ... [BWS] is a problematic way to accomplish this task" (7). His opposition to BWS partially rests on a more generalized opposition to syndrome defenses, such as battered child syndrome, rape trauma syndrome, hostage syndrome, and Vietnam War veteran syndrome. He argues that the cluster of victimization syndromes, variations of post-traumatic stress disorder which was designated by the American Psychiatric Association as an official disorder in 1980, "unnecessarily compromise[s] the presumption of individual responsibility upon which legal justice and equal citizenship rest" (5). The book traces the development of BWS and discusses the two principles upon which it rests: the "cycle theory," that is, the continuing pattern of violence and repentance, and "learned helplessness." Because BWS proponents ascribe these behaviors and feelings to all women in abuse situations, Downs charges that BWS harms women by portraying them weak and helpless. In common with the other forms of victimization syndromes, BWS adherents characterize victims of abuse as incapable of reason and unable to take responsibility for their actions.

Downs contends that BWS undermines principles of equality because it labels women unable to bear the responsibilities of citizenship. By depicting women as irrational and irresponsible, unable to control their impulses, BWS represents the antithesis of a self-defense claim in which a defendant must appeal to reason to justify her/his use of force. Moreover, he claims that BWS is detrimental to women whom, because of race or class characteristics, do not fit the stereotypical image of the helpless women. Finally, he cites the backlash effect of BWS on battered women seeking custody of their children. If portrayed as governed solely by her passions, a battered woman will be unable to convince a judge of her ability to take care of her child and will lose the custody dispute, even against a father with a history of spousal abuse. Quite properly Downs is also concerned about the overuse of BWS that would result in every woman becoming judge, jury, and executioner of her abuser. To buttress his argument about the potential excesses of BWS, he evokes the specter of Bernard Goetz on the New York subways. His point is that nobody wants to encourage the sort of vigilantism that would allow women victims to take the law into their own hands as Goetz did. Surely, however, there is a stopping-off place between Goetz's self-help approach and women who have long-standing relationships with their abusers and are driven to violence as means of escape. Downs acknowledges that traditional self-defense doctrine has not accommodated the needs of abused women, and he proposes that battered women who harm their batterers avail themselves of a "clarified and adjusted" self-defense claim. This is preferable to BWS, in his view, because it addresses women's individual situations and "does not rely on pseudo-scientific stereotypes of helplessness and lack of will" (223). He seeks to structure self-defense doctrine to fit the particularistic needs of abused women in a number of ways: by revising and/or creating new jury instructions, by allowing experts to testify to the rationality of a woman's decision to stay with her batterer rather than leave him, and by allowing a woman to testify to past incidents of abuse to explain her heightened sense of danger and the necessity of striking back.

Specifically, Downs proposes a modified self-defense doctrine, with a contextual objective standard. That is, he would instruct the jury to consider what a reasonable woman in an abusive relationship would have done, differentiating this from a "reasonably prudent battered woman standard" which he argues would create a double standard for men and women. Because most killings occur in confrontational situations, he argues, there is less need for BWS anyway. In nonconfrontational situations, he proposes to substitute the word "imminent" for that of "immediate" which he defines as "about to befall" or "coming on shortly" (247). Surveying the range of existing jury instructions for self-defense claims in the various states, he argues that wholesale changes in the law would be unnecessary. Although Downs offers some compelling arguments against the use of BWS, ultimately, he fails to persuade that BWS does more harm than good to battered women on trial. At a minimum, its advocates must be commended for their pioneer work in bringing the problem of battered women to the forefront of the law's consciousness. By educating judges and juries, largely through expert testimony, about the pervasive effects of abuse on women and the fact that victims of abuse have complex relationships with their abusers, BWS proponents forced the legal system to be more sensitive to the difficult choices that abused women face.

Downs's objection to BWS is primarily a philosophical one. In his view, BWS should be abandoned because it casts doubt on women's roles as equal citizens and undermines the logic of self defense doctrine based on rationality and will. For battered women who did not meet the standards of traditional self-defense justifications, however, BWS served the utilitarian end of persuading a number of judges and juries that traditional self- defense doctrine was short-sighted and ultimately unfair to women defendants who retaliate against their abusers. Moreover, the prospect of identifying and modifying the "bad" jury instructions in each state, as he proposes, would indeed be a daunting task with an uncertain hope of success.

Perhaps Downs's case would be strengthened if he offered a clearer picture of the use of BWS in court. It is unfortunate that he presents no systematic evidence of how often BWS is used, under what circumstances, and how successfully or unsuccessfully. If his objection to BWS is based on functional as well as philosophical grounds, that is, if BWS results in more convictions than acquittals, surely he should report such findings. Similarly, he presents no systematic analysis of women's experiences with self defense claims in the days before BWS, that is, how battered women fared using traditional self- defense doctrines. After all, one does not have to be follower of Mackinnon to recognize that much legal doctrine, including the law of self-defense, is gender-based and often operates to the detriment of women.

Additionally, although the interviews add much to his narrative, one wonders how representative Dane County (the site of the University of Wisconsin and arguably one of the most liberal communities in the country) is of other jurisdictions in the state, much less the nation. This raises some questions about his analysis of BWS, in which, for example, he refutes the "learned helplessness" element of BWS in large part on information from Dane County respondents who told him they never felt helpless or especially passive in their relationships with their abusers.

Ultimately, although Downs evidences great sympathy for the plight of battered women, it is not clear that he is prepared to give them enough legal support to help them navigate their way through the criminal justice system. Even accepting the legitimacy of his criticism of BWS, and acknowledging its philosophical and pragmatic deficiencies, is the solution to abolish it entirely? One has to wonder if his approach offers sufficient protection to the interests and lives of battered women who fight back against their abusers. Perhaps it is simply that abused women do not have the luxury of worrying about the philosophical issues he raises.

Notwithstanding these reservations about the wisdom of his approach for defending battered women, Downs has written an important book on a subject that deserves more of our attention.