Justices Urged to Expand Battered SyndromeTrisha Renaud
Fulton County Daily Report
April 14, 1999
Words can strike blows as deep as physical blows, the lawyer for a woman who claims she was verbally battered told the state Supreme Court Tuesday.
Representing a Vietnamese woman convicted of shooting her husband and grown stepdaughter, Thomas W. Herman argued that the court should expand its definition of battered person syndrome to include emotional and verbal abuse without a component of physical abuse.
"It's time that the court recognized the entire battered person syndrome," Herman told the justices.
But much of Tuesday's oral argument focused on Herman's second contention: that juries should be able to consider a defendant's cultural background when considering a defense of justification involving battered person syndrome.
In the case of Herman's client, Thu Ha Nguyen of Macon, the Bibb Superior Court jury that convicted her of aggravated assault should have heard from an expert on Asian culture about how Nguyen's values led to her distress and to the violence, Herman argued.
"The cultural evidence tends to prove why this woman would be threatened under the circumstances," Herman said. "Without this, the jury can't understand."
Beyond the question of whether such evidence should be used, how and when to use evidence of cultural background were questions clearly on the justices' minds.
Justice Carol W. Hunstein said she generally agreed with the prosecutor arguing the case, Bibb Assistant District Attorney Thomas Clifton Woody, that cultural background was not relevant when it came to intent. But, she added, "I see a distinction in this defendant."
Woody argued that "If you've got to bring in everybody's background, that's always going to come up." He brought up a hypothetical example: a Muslim who kills his sister for breaking the taboo against having sex out of wedlock.
"That's cultural," he said.
Justice Leah J. Sears asked, "You would not like to see it go to that?"
No, Woody replied. "That would be very dangerous."
Woody also argued that verbal and emotional abuse was a far cry from psychological abuse, which the court has already held can be a factor in battered person syndrome.
Emotional or verbal abuse could include "fussing and cussing," he said, while psychological abuse might encompass a stalking situation or one where the victim kills the defendant's favorite cat and warns that the defendant will be next. Psychological abuse, he added, involves "conduct to shock the conscience."
And, he maintained, a defendant must be in fear of harm. "That's a bright line test," he argued.
Nguyen was convicted in 1997 of shooting her family members. She contends that at the time, her husband was seeking a divorce that would have made her a pariah in the Vietnamese community. She also alleged she suffered from constant verbal and emotional abuse from her husband and his grown stepchildren, who lived with the couple.
But the trial court-and the Georgia Court of Appeals, in considering Nguyen's appeal-concluded that verbal abuse without physical or sexual abuse cannot constitute a battered person defense. Nguyen v. State, No. A98A1100.
The Georgia Supreme Court accepted certiorari to consider if expert evidence on battered person syndrome could be admitted in instances involving only verbal and/or emotional abuse, and whether a defendant's cultural background was relevant in determining intent or liability.
In a 1992 case Woody cited, the court disallowed evidence of the effects of Chinese culture on a defendant. Lee v. State, 262 Ga. 593 (1992).
The justices, however, have recognized a battered person syndrome as part of a justification defense since 1981.
In a 1996 decision, Chester v. State, 267 Ga. 9 (1996), the justices refused to allow a defendant who killed his girlfriend to claim he was a battered person based solely on her verbal threats. Writing for the court, Justice George H. Carley wrote that "It cannot be the law that mere verbal threats alone will justify homicide."
In a special concurrence, however, Chief Justice Robert Benham and Hunstein wrote that scientific developments might, in the future, establish that emotional abuse could substitute for physical abuse in the creation of the battered person syndrome.
Last year, the court, in Mobley v. State, 269 Ga. 738 (1998), held that battered person syndrome involved a pattern of "physical, sexual, or psychological abuse" and a reasonable apprehension of harm.
At Tuesday's argument, Carley emphasized the latter factor. "Let's not lose sight," he said, "that we're dealing with a defense of justification."
Herman said he does not mean it's okay to shoot someone in Georgia if it's okay in Vietnam. Rather, he said, the question is why someone pulled the trigger.
But Carley said defendants still must believe they were facing imminent harm.
Nguyen believed harm was imminent, Herman argued, adding that one must look at what a reasonable person with the same psychological and physical characteristics would have thought.
Herman told the justices that to understand battered person syndrome in this case, a jury needed to hear about Nguyen's cultural background.
Americans have become "very callous" about the institution of marriage, he said, while in Vietnam, "the marriage is the cornerstone. To disregard that, to show disrespect is the ultimate threat" in his client's view.
Cultural evidence, he said, would only apply in a very narrow class of cases involving battered person syndrome. "It's not just because [a defendant is] Irish, you get to hear the history of Ireland."
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