National Post

Friday, November 27, 1998

Battering justice

National Post

Canada's feminist legal scholars were wrong. Regrettably.

After the Supreme Court of Canada's 1990 ruling in R. v. Lavallee had elevated "battered women's syndrome" to an absolute defence in homicide trials, they set out to soothe the legal community and the public by denying this would lead to an erosion of society's protection against murder.

This week, however, in a moment of breath-taking candour, Lilian Getkate, who was spared prison for murdering her husband despite the absence of any corroborating evidence to buttress her allegations of spousal abuse, admitted she was "startled" not to be incarcerated: "I took someone's life and I'm not going to jail. Of course I'm surprised by that."

Quite right. Taking a man's life while he slept had been judged equal to two year's community service in Mrs. Getkate's own home. And the mere presentation of the "battered woman" claim -- which, of course, the murder victim cannot rebut -- had been enough to win the day.

Naturally, the criminal defence bar warmly embraces the "abuse excuse." But should the rest of us? Not unless we wish to invite vigilante justice. To be sure, the prior abuse of the murderer at the hands of the victim, if supported by evidence in addition to the wife's testimony, should be considered by the court at the sentencing stage. It is plainly a mitigating factor.

But to make battered women's syndrome grounds for acquittal or its functional equivalent is retrograde since it implies women are irrational creatures unable to control their actions and likely to "snap" at any moment. If this argument were to be advanced in another context -- say, to justify women's exclusion from high-pressure professions -- feminists would be the first to denounce it.

Pseudo-scientific defences introduced by partisan psychiatric "experts" during the trial give a patina of respectability to bizarre theories that should remain in the unpublished doctoral dissertations where they were born.

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