Battered Woman Syndrome: How Kenyan Courts treat Domestic Violence in Criminal Cases

Can a woman who kills her abusive partner claim self-defence in Kenya?

Battered Woman Syndrome (BWS), a psychological condition that develops in women subjected to prolonged domestic abuse, has emerged as an important consideration in legal systems globally in cases where abused women are accused of crimes against their abusers. In Kenya the conversation around BWS is relatively new but increasingly relevant, particularly in the context of increased awareness about gender-based and domestic violence.

BWS was first described by American psychologist Dr. Lenore Walker in the 1970s to explain why abused women may act violently against their abusive intimate partners, sometimes preemptively, and has been accepted by some courts worldwide as a form of self-defence in criminal cases.

BWS is a sub-category of Post-Traumatic Stress Disorder (PTSD) and is characterised by:

•Cyclical abuse: There is a pattern of tension-building, violent outbursts and remorse from the abuser.

•Low-self esteem and emotional dependency: The victim lacks self-confidence and believes her needs cannot be fulfilled without the abuser.

•Learned helplessness: The victim believes that escape is impossible.

•Hypervigilance: The victim has a heightened sense of threat, even in non-violent moments.

Women suffering from BWS may eventually act violently in what they perceive to be self-defence, even if the abuser is not attacking them at that precise moment.

In jurisdictions like the United States, Canada and the UK, BWS has been used to support defences such as self-defence, diminished responsibility and provocation in homicide cases involving abused women who kill their abusers.

In Kenyan law, self-defence is a defence that excludes criminal responsibility where the accused person uses reasonable and proportionate force to repel an attack. However the traditional self-defence model assumes an immediate threat, which poses a challenge for abused women with BWS who act during a lull in violence.

Kenyan courts have considered BWS in a limited number of cases and so far, it has not been accepted as self-defence. However, there have been cases where courts have taken evidence of prolonged abuse as a mitigating factor in sentencing and consequently imposed relatively light or non-custodial sentences.

In the case of Ruth Kamande v. Republic the Supreme Court ruled that BWS is not a stand-alone defence, but may support existing defences of temporary insanity, provocation or self-defence. Expert testimony would be required to establish the mental state of the accused person at the time of the commission of the offence. The accused person must explicitly raise BWS with supporting psychological expert testimony; a court cannot infer it from the facts and evidence before it.

The Supreme Court said also said that BWS cannot be applied in a blanket manner, but each case in which it is raised must be considered on its own merits to guard against potential misuse. The Court added that where an accused person seeks to rely upon BWS in the course of a trial, it should be raised at the earliest appropriate stage similar to any other defence. However, it may also be raised in mitigation upon conviction.

The applicability of BWS is still at a nascent stage of jurisprudence and is likely to be developed further as more cases are considered by the courts.