On August 30, 1986, there was a noisy party at the Winnipeg home of 22-year-old Angelique Lavallee and her common-law husband, Kevin Rust. After most of the guests had left, the two had an argument. The frightened girl hid in a bedroom closet, but Rust found her, pulled her out, slapped her on the face and hit her twice on the right side of the head.
In a statement she made later to the police, she said that all she thought about was “all the other times he used to beat me, I was scared. I was shaking as usual.” Perhaps taunting her to shoot him, he loaded a rifle and handed it to her. “Wait till everybody leaves,” he said, “you’ll get it then.” Then (by her account), “he said something to the effect of either you kill me or I’ll get you” that was what it was. “He kind of smiled and then he turned around. I shot him.” She shot him in the back of the head as he was going out of the room.
Could a woman who shot a man in the back of the head have been acting in self-defense? A jury decided she could, influenced in this verdict by the testimony of Dr. Fred Shane, a psychiatrist with extensive experience in the treatment of battered wives. In his opinion, the accused had been terrorized by Rust, and her shooting him was the final desperate act of a woman who sincerely believed that she would be killed that night.
But in the course of his testimony, Dr. Shane referred to many things told him my Anglique for which there was not admissible evidence, no corroboration. There were several incidents of abuse described by her for which there were no hospital reports. Shane said she had told him she had had an abortion, after which Rust allegedly threatened to tell her parents that she was a baby killer. He also related her disclosure to him that she had lied to doctors about the cause of her injuries.
Since Angelique herself did not testify at the trial, there was no opportunity for the Crown to cross-examine her about the facts, incidents and events upon which Dr. Shane based his opinion. When the case came before the Manitoba Court of Appeal, therefore, it ordered a new trial.
This decision was in turn reversed by the Supreme Court of Canada last spring, in a judgment written by Madame Justice Bertha Wilson. She held that the bare facts of the case, supported by evidence, were clear enough”: the appellant was repeatedly abused by the deceased, but did not leave him, and she shot him in the back of the head as he was leaving her room. Did she act in self-defence?
In order to understand that, Mme. Wilson contended, we have to turn to expert evidence on the psychological effect of ill-treatment of wives and common-law partners. She referred to a book by Dr. Lenore Walker, entitled The Battered Woman Syndrome, based on a study of 400 cases.
To the inevitable question “Why didn’t she leave him?” Dr. Walker showed that often she didn’t: again and again women do not leave the men who abuse them, even after months and years of brutality. But with their heightened sensitivity to their partner’s acts, they can tell when real danger exists; they can make a distinction between “normal” or “typical” violence and life-threatening situations.
Mme. Justice Wilson maintained that this was true in Angelique’s case; “the mental state of an accused at the critical moment she pulls the trigger,” she wrote, “cannot be understood except in terms of the cumulative effect of months or years of brutality.” It is reasonable to believe, she concluded, that Angelique had an apprehension of death and, therefore, she acted in self-defense.
In a speech which she gave last February, Mme. Justice Wilson asked judges and legislators to make room for feminine values and remove traditional male biases from the courts and the law. “I see no reason,” she said, “why the judiciary cannot exercise some modest degree of creativity in areas where modern insights and life’s experience have indicated that the law has gone awry.”
The term creativity is suspect here, it is often an invitation to judges to imitate the U.S. Supreme Court by ignoring reason and precedent and twisting the law to suit some preconceived social objective.
Still, when Mme. Wilson was applauded b the press by expanding the legal definition of self-defence to recognize the existence of the battered wife syndrome, the applause may have been justified.
Angelique Lavallee may have been in the state of mind Mme. Wilson describes – really convinced that Rust was going to kill her if she did not kill him first. Mme. Wilson was careful to state that attaching a label to her situation was not the important thing; the status of a battered woman would not have made Angelique innocent of murder, but rather it was up to the jury to decide whether in fact her perceptions and actions were reasonable.
Much of the discussion of this case turned on the weight which should be given to an expert’s testimony when part of that testimony is based on an un-sworn statement, that by the accused.
Our main interest lies elsewhere. While many of the radical feminists demand “gender neutral” language and the treatment of men and women an equal in every respect, what Mme. Justice Wilson has done is emphasize their inequality – their differences in strength, their differences in ability to react to certain kinds of situations. It is not enough, she wrote, to consider what a “reasonable man” might do in certain circumstances, because “the factor of gender can be germane to the assessment of what is reasonable.”