Parliamentary Research Branch

MR-60E

TABLE OF CONTENTS

BACKGROUND

ANALYSIS

THE BATTERED WIFE DEFENCE:
THE LAVALLEE CASE

Angélique Lyn Lavallee was for three or four years the common-law wife of Kevin ("Rooster") Rust. Their relationship was marked by frequent arguments and violence, with fighting that spanned two or three days or even several weeks at a time. Frequently, Ms. Lavallee suffered physical abuse at Mr. Rust's hands, and between 1983 and 1986 she made several trips to hospital for injuries that included severe bruising, multiple contusions, a broken nose and a black eye.

At least one friend had seen or heard Mr. Rust beating Ms. Lavallee and had twice seen her point a gun at him, threatening to kill him if he ever touched her again. This witness had also seen Ms. Lavallee with a black eye, and doubted her explanation that it was the result of an accident, while another acquaintance had seen her with a split lip.

On the evening of 30 August 1986, the couple hosted a party, which became rather loud. At one point during the evening, a mutual friend saw Mr. Rust chase Ms. Lavallee outside the house. Pleading with Mr. Rust to "leave me alone," Ms. Lavallee hid behind the friend. Later, a neighbour heard, between the first and second of two gunshots, the sounds of "somebody ... beating up somebody" and a female's screams. Another neighbour heard noises like gunshots followed by a woman's voice saying "He punched me in the face. He punched me in the face." Three other guests reported hearing sounds of yelling, pushing, shoving and thumping, prior to hearing the gunshots.

Ms. Lavallee had, in fact, fired two shots at Mr. Rust with a rifle; the first missed and the second entered the back of his head, killing him as he was walking out of the room. Ms. Lavallee, visibly shaken and upset, was heard to say: "Rooster was beating me so I shot him ... You know how he treated me, you've got to help me." En route to the police station, the arresting officer heard her say: "He said if I didn't kill him first, he would kill me. I hope he lives. I really love him ... He told me he was gonna kill me when everyone left."

A police officer and a doctor afterwards noted marks and injuries on Ms. Lavallee's body consistent with her having taken a defensive stance. The coroner who performed the autopsy on Mr. Rust observed bruises on his left hand consistent with his having assaulted somebody.

During the second degree murder trial, a psychiatrist, who was an expert in the treatment of battered wives, testified that Mr. Rust's terrorization had left Ms. Lavallee feeling vulnerable, worthless and trapped in a relationship from which, despite the violence, she was unable to escape. He also expressed the opinion that since the continuing pattern of violence placed Ms. Lavallee's life in danger and caused her to believe that Mr. Rust would kill her, the shooting was a final, desperate act.

The jury acquitted Ms. Lavallee, who did not testify. The Crown appealed to the Manitoba Court of Appeal, which ordered a new trial in the case. Essentially, the Court felt that in the absence of the evidence from the psychiatrist, the jury would not have accepted the argument that Ms. Lavallee had acted in self-defence. The Court also felt that the trial judge had not properly instructed the jury as to what use it might make of the psychiatric evidence. For these reasons, the Court of Appeal said that the jury should not have heard the psychiatric evidence.

The case was then appealed to the Supreme Court of Canada. Madam Justice Bertha Wilson, in delivering the unanimous judgment of the Court, disagreed with the Manitoba Court of Appeal and restored the acquittal, thereby recognizing "battered wife syndrome" as a defence to murder.

In arriving at this decision, Madam Justice Wilson adjusted fundamentally the law of self-defence to accommodate battered women, who, if that law were applied strictly, would not be legally able to advance their plight as a defence. Until this decision, anyone who intentionally caused death or grievous bodily harm in repelling an assault was legally justified if he or she did so "under reasonable apprehension of death or grievous bodily harm." Although the relevant section of the Criminal Code does not provide that the accused must apprehend imminent danger when he or she acts, this requirement was inserted by judicial interpretation in a series of cases.

Madam Justice Wilson commented that this requirement of imminence "conjures up the image of `an uplifted knife' or a pointed gun." The rationale for the "imminence rule," she said, "seems obvious ... (and) ... is designed to ensure that the use of defensive force is really necessary. It justifies the act because the defender reasonably believed that he or she had no alternative but to take the attacker's life. If there is a significant time interval between the original assault and the accused's response, one tends to suspect that the accused was motivated by revenge rather than self-defence."

In the usual case, this rationale is appropriate; however, Madam Justice Wilson said that unique rules of self-defence apply to the battered spouse, which an expert, such as the psychiatrist in Ms. Lavallee's case, can help explain to a jury. Such expert evidence can also cast doubt on the assumption that where no assault is actually in progress -- such as here, where an unarmed Mr. Rust, after uttering a death threat, turned his back on the accused to walk out of the room -- violence by the accused is inexcusable.

Madam Justice Wilson said that, without expert evidence on the psychological effect of battering on wives and common-law spouses, a jury cannot appreciate the mental state of Ms. Lavallee, and others like her. In the case of a battered woman, it is not appropriate to ask why she would put up with this kind of treatment, why she would continue to live with such a man, and why, in short, she does not pack her bags and go. Quoting from American caselaw and behavioural journals, Madam Justice Wilson stated that an expert could assist members of the jury to avoid using logic based on their own experience, which might lead to a wholly incorrect conclusion. It was fitting that the jury in this case was made to realize, she said, that "(g)iven the relational context in which the violence occurs, the mental state of an accused at the vital moment she pulls the trigger cannot be understood except in terms of the cumulative effect of months or years of brutality (which) ... led to feelings of escalating terror on the part of the appellant." Furthermore, only expert evidence, such as that advanced at trial by the defence, could explain to the jury "that it may in fact be possible for a battered spouse to accurately predict the onset of violence before the first blow is struck, even if an outsider to the relationship cannot."

Madam Justice Wilson recognized that there will be those who, though acknowledging that a battered woman "may be uniquely sensitized to danger from her batterer," still contend that "the law ought to require her to wait until the knife is uplifted, the gun pointed or the fist clenched before her apprehension is deemed reasonable." In answer, she said that to require the battered woman to wait, like any other attacked person, until the assault is underway "before her apprehensions can be validated in law would ... be tantamount to sentencing her to `murder by installment' "because, "due to their size, strength, socialization and lack of training, women are typically no match for men in hand-to-hand combat."

In addition to the "imminence rule" (e.g., the pointed gun) previously applicable when a battered woman claimed self-defence, the Criminal Code requires the accused "to believe `on reasonable grounds' that it is not possible to otherwise preserve him or herself from death or grievous bodily harm."

Madam Justice Wilson again observed that the average person -- including a juror -- might ask "if the violence was so intolerable, why did the appellant not leave her abuser long ago?" Once again, an expert would be helpful in explaining that the woman's reluctance to leave is not because she is not as badly beaten as she claims, or because she likes to be beaten. The expert would be able to explain the "learned helplessness" of the battered woman, whose self-esteem has been so damaged by protracted abuse that she quickly and repeatedly forgives the batterer in return for the apology and expression of love proffered at the end of each cycle of violence.

Madam Justice Wilson asserted that "it is not for the jury to pass judgment on the fact that an accused battered woman stayed in the relationship. Still less is it entitled to conclude that she forfeited her right to self-defence for having done so." If satisfied, after hearing all the evidence including the expert testimony, that the accused had a reasonable apprehension of death or grievous bodily harm and felt incapable of escape, the jury must then ask itself what the "reasonable person" would do.

It is here that Madam Justice Wilson used her most forceful language. In the powerfully worded decision, she contended that the battered woman in Ms. Lavallee's situation is in a position "somewhat analogous to that of a hostage (whose) ... captor tells her that he will kill her in three days' time." If, "given the history, circumstances and perceptions" of the battered accused, she believes that she cannot preserve herself from being killed by the batterer except by killing him first, then it is reasonable, as in the example cited, for the hostage to seize an opportunity presented on the first day rather than "wait until he makes the attempt on the third day..."

This decision does not give any battered spouse a licence to kill the batterer. It is up to the jury to decide in any given case whether the evidence -- particularly that of the expert -- is sufficiently compelling to warrant acquittal. As Madam Justice Wilson was careful to stipulate: "Obviously the fact that the Appellant was a battered woman does not entitle her to an acquittal. Battered women may well kill their partners other than in self-defence."

Any suggestion that the decision broadens self-defence to such an extent that a battered woman can now commit the preemptive murder of her abusive spouse with impunity seems misguided, even given the hostage-captor analogy. In all likelihood, there will be few circumstances where the defence will be successful. Perhaps the Supreme Court's intent was less to offer the Lyn Lavallees of this country an excuse for giving the Rooster Rusts their just deserts than to establish once and for all the guiding principle -- for every Canadian, not just batterers -- that no man has the right to abuse any woman in any circumstances.

As might be anticipated, the Lavallee case has provoked considerable commentary among legal academics and practitioners with respect to the interpretation of the Supreme Court's reasoning and the consequences that may flow from the decision.

While hailing Lavallee as a decision that finally recognizes that women's experience and reality can differ greatly from the traditional legal view of what constitutes "reasonable" apprehension of death or bodily harm, some commentators have suggested that a similar approach could be appropriate in the construction of other criminal law doctrines, such as duress or provocation. Others have called for a redrafting of those Criminal Code defences or excuses, to allow consideration of the broader context of an alleged offence. For example, the requirement that provocation must be "sudden" or that duress (or compulsion) must arise from an "immediate" threat by persons present may limit the courts' ability to examine all the relevant circumstances faced by a battered spouse.

Some observers also caution that evidence of the battered wife syndrome, offered to illustrate the "reasonableness" of a woman's actions, should not be presented as a form of psychological disorder or diagnosis. Such misinterpretation would risk not only that the women's response to domestic violence might be viewed as abnormal, as opposed to her partner's behaviour, but also that the claim of self-defence might not be open to those who did not conform to the new stereotype.