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Invitation to endorse campaign to free Marissa Alexander, African American mother in the U.S., imprisoned for defending herself

the following attachments from the radical women australian section call for public pressure to be put onto the florida (us) court and gaol system on behalf of marissa alexander who is but another sad example of what has become known as the ‘battered woman syndrome’ where women, after suffering over many years of physical, mental and sexual abuse of the most horrific kind from their individual partners/husbands/boyfriends/ whatever. generally men of so weak a nature but with a strong proclivity for abuse against women only.

i am always amazed by the violence of all kinds that can be meted out against women for just too many years, sometimes over a lifetime of horror and degradation. i have daughters and adult granddaughters who have during stages of their lives have been with what proved to be cowardly violent men. one slap, one forces act, one nasty put-down has always been enough for me to advise that they leave these cretins and move on. mostly it has worked but only over time and more bullying.

i state two truths here and now. the first truth is that there are indeed similar events causing some men to be also being badly abused by their respective partners/wives/girlfriends but by far the greater number covers women of all ages and can come even from within the same family. this i have seen.

the second truth is that the abuse is not restricted just to the usa, it is indeed a worldwide phenomenon, including of course, australia. the events surrounding the case of ms. alexander i leave to your own reading should you be interested.

a case that made headlines in this country that first brought the practice to my ears and eyes was the racist case against aboriginal woman, ms. robyn kina, who appeared in a queensland court in 1988 and a jury found her guilty after 50 minutes of murdering her sick sadistic boyfriend in 1988. the trial lasted for but three hours. robyn’s voice was not even heard during those three hours. still she was found guilty of murder and sent to gaol for life. the fact that a cultural shame allowed this silence to occur was raised at a later date by 4 corners when they aired the story.

stories or information filtered through the aboriginal communities of the truth of why robyn had killed the boyfriend. some of those reasons were strictly of a cultural women’s business nature so i will not be putting them here. everyone who heard the truth however agreed that robyn had again been railroaded by a white legal system, especially the white queensland system.

slowly after some 5 years enough people knew of her truth and began the push for justice. and none more so than that strong support group for women inmates in the queensland gaols, sister’s inside, led by the indefatigable debbie kilroy and her intrepid band of women for justice. robyn worked for sister’s inside and may still continue to do so. robyn did get out of gaol after 5 years and now, we are informed, is in a loving relationship along with her children.

the practice however remains way too prevalent. white patriarchal courts had learnt nothing. in 1993 in south australia the ‘battered woman syndrome’ again came to public prominence but only because the judge sitting on the case, justice derek bollen, (yes, that justice derek bollen!) stated that aboriginal woman, 29 year old geraldine buzzacott was sentenced to 4 years gaol for ‘murdering’ her ultra-abusive de facto because she was ‘not sufficiently battered’ to claim self-defence!

the article below by karen fredericks in the green left weekly, dated 18 august, 1993 sets out not only the facts of geraldine’s case but also a history of the ‘battered women’s syndrome’ far better than i ever could, so i produce it below. i fully endorse the push for real justice that has been raised by the article and the call from debbie brennan of melbourne radical women.

suffice to say, that women’s rights, including their legal rights, still have a hell of a long way to go. and not just women of colour.

not only here but around the world.

please support marissa alexander by endorsing her fight for justice, print off the petition, sign it and circulate it and send full sheets to the address at the bottom of said petition. all facts are in the fact sheet. so, let’s do it!

fkj

ray jackson
president
indigenous social justice association

isja01
(m) 0450 651 063
(p) 02 9318 0947
address 1303/200 pitt street waterloo 2017

www.isja.org.au

we live and work on the stolen lands of the gadigal people.

sovereignty treaty social justice

By Karen Fredericks

Wednesday, August 18, 1993 – 10:00

By Karen Fredericks

Last week in the South Australian Supreme Court Justice Derek Bollen, known for his “rougher than usual handling” judgment in a rape in marriage case last year, held that a survivor of domestic violence who killed her husband had not been “sufficiently battered” to be able to claim self-defence to excuse the killing. Early condemnation of the decision by commentators, including the South Australian Minister for the Status of Women, Anne Levy, has been quickly overtaken by a rush of lawyers, politicians and newspaper editors eager to defend the judge.

The public defence of Justice Bollen has been united and fierce. Anne Levy, for example, has been obliged to recant on her initial view, that the decision did not “square with the facts in the case”. She has now clarified that she did not mean to criticise the judge’s decision, merely his language. This revised view is more in line with that of the state’s Attorney General, Chris Sumner, who became the first to emerge in defence of Bollen, asserting that the judge had made no error in either law or fact, although the language in which his decision was expressed may have been “insensitive” or “injudicious”.

Levy’s “appalled at the decision” sound-bight was reported on August 9, the first day on which the case received national media coverage. Sumner’s views and Levy’s revised position were reported on Tuesday, and by Wednesday every major metropolitan daily in the country was carrying an editorial supporting Bollen.

Justice Bollen “…may have an unfortunate way with words, but there is nothing to suggest that in sentencing a woman to jail for killing her de facto husband his decision was based on anything more than the evidence placed before him and the law as it stands”, said the Age.

“Unfortunately, Justice Bollen’s way of expressing this crucial finding was clumsy”, conceded the Sydney Morning Herald, “But his sentencing Geraldine Buzzacott to four year’s jail … can hardly be seen as harsh … (He) found the facts, to which he as judge then applied the law.”

Wednesday’s Australian defended any insensitive or injudicial language used by Bollen on the grounds that he had written his judgment hastily, wishing to save the accused woman the agony of a long wait and that, had he been able to take longer he may have written a “more thorough statement of reasons for judgment, expressed felicitously”. “What is more important”, the paper asks, “sensitivity or treatment of the accused?”

Rod Linquist, president of the South Australian Law Society, joined the campaign to defend Justice Bollen the same day, criticising the “selective reporting” of the case and assuring that, in the opinion of the society both the judge and his decision were “fair and balanced”. Even Justice Bollen’s son, Michael Bollen, went public, telling the media he believed his father had been “singled out for attack” and complaining that his family had been upset by all the publicity.

But what of Geraldine Buzzacott, the 29-year-old Aboriginal woman of whom we know little except that last year she fatally stabbed her de facto husband, Gregory Rodoni, with a kitchen knife and that she now faces a minimum of two years in prison for manslaughter. Reports of Bollen’s judgment in her case also reveal that she had endured a “long course of abuse” at the hands of Rodoni, that she had frequently sought refuge from the abuse in women’s shelters and that on the night she arrived to try to get her baby daughter from Rodoni, from who she was estranged, she was again physically abused. On that night, in Justice Bollen’s own words, Rodoni “seized her by the throat, struck her, banged her head against the wall and abused her.”

“I accept all the evidence of (the defence council)”, said Bollen in his judgment, “but say colloquially, ‘so what’. I do not think that any situation of battered woman arises in this case; there was not sufficient battering.”

“Battered woman”, as so many of Bollen’s defenders have been at pains to explain, is a term of art used by psychiatrists and lawyers in domestic homicide cases. “It is highly complex”, writes Kenneth Gee in his attack on “half-cocked” Bollen bashers in the Sydney Morning Herald on August 13, “and requires evidence from expert psychiatrists. It requires more elucidation than can be given here. Suffice to say that there was not a tittle of evidence before Justice Bollen capable of supporting this defence.”

Suffice for whom? Gee, like all the learned friends of Bollen who have risen to defend one of their own, obviously considers it sufficient explanation for simple non-lawyers to refer mysteriously to the “complexity” of the law and the expertise required to interpret it.

The problem Gee faces is that Bollen himself, with his rougher than usual handling of legalese, has provoked unprecedented public interest in a sphere long protected from public scrutiny and accountability the world of tenured judges and their interpretations of each other’s decisions. An increasing number of non-lawyers are becoming dissatisfied with being fobbed off with vague allusions to the intricacies of the common law and the sacredness of an “independent” judiciary.

‘Too complicated’

Gee and the other Bollenites have refused to address the real issues raised by Geraldine Buzzacott’s case, and a host of other, strikingly similar, cases (such as the Queensland case of Robyn Kina which came to light though the ABC’s Four Corners earlier this year). Why do the traditional homicide defences of self-defence and provocation not fit the scenario of a woman who kills an abusive partner? What is the “battered woman syndrome” and does it address the inadequacies in the common law in this area? These are the questions the lawyers say are “too complicated” for a layperson, but they are not. The answers are simple and revealing. The reason they are avoided by the Kenneth Gees and Derek Bollens is that their answers split open the can of wriggling worms that is the Australian legal system, and if you open up the legal system…

Domestic violence was only given a name in the 1970s. Its name only became widely known, in Australia, in the late 1980s. Consequently we do not know how many women who killed their husbands in the hundreds of years prior to the second wave of feminism had been the victims of domestic violence. Even today Robyn Kina’s case indicates that many women are tried and convicted of murder or manslaughter without the truth about their tortured existence with a violent man ever coming to light.

In the days when domestic violence was as much a shadowy secret as child sexual abuse, women who killed their husbands or lovers seldom mounted any defence. The only defence available to them was insanity, which may have saved them from death or jail but condemned them to a mental institution, indefinitely and usually for life.

It was only in the 1970s that when consciousness raising groups of the second wave of feminism began to uncover a monstrously widespread pattern of violence against women in the home, and gave it a name domestic violence. What had been a personal hell suffered by women in isolation became, for the new feminists, a social and political issue. Women in consciousness-raising groups said to each other, “I thought it was just me, I thought I was insane, but now I realise I am not alone and I am not mad.”

In the late ’70s two feminist lawyers in the US extrapolated this “personal is political” realisation into the legal sphere and suggested, for the first time, that self-defence, and not insanity, could be used as a defence for women who have killed in response to physical abuse by a partner or estranged partner.

Proving self-defence

In all jurisdictions in Australia (each state is a separate criminal law jurisdiction), if self-defence is successfully argued in a murder or manslaughter case the accused person is acquitted it is a complete defence. Provocation, on the other hand, is only a partial defence to murder. It operates to reduce a murder charge to the less serious charge of manslaughter.

In a murder case the prosecution must prove not only the killing but also the intention either to kill or to cause “grievous bodily harm”. Without this intention murder is again reduced to

In order to prove self-defence the accused must prove: a) that they were in imminent danger of either death or grievous bodily harm from the deceased, or that they “reasonably” believed themselves to be in such danger, b) that they used “reasonable force” to protect themselves from that danger, and c) that the means they used to defend themselves was the only means available (that they couldn’t escape, for example), or they “reasonably” believed that to be the case.

A provocation defence, on the other hand, requires proof of: a) a situation which would provoke a “reasonable” person to the level of violence used, and b) immediate reaction to that situation, in the “heat of the moment”.

But attempts to use these defences for women who killed violent partners in the early 1980s proved fruitless. It became clear that homicides committed by women after a history of domestic violence differed greatly from the model assumed by the common law constructs of “self-defence” and “provocation”. In case after case, then and now, women failed the “reasonable man” test. They “unreasonably” believed themselves to be in danger from men who were sleeping, passed out drunk or walking away after inflicting abuse. They used knives or guns when their abusive partners “only” punched, kicked or gouged with their hands and feet. They “unreasonably” thought they couldn’t escape from their home when a “reasonable man” would simply have walked out the door. They were “unreasonably” provoked by rougher than usual demands for sex or domestic service. They often didn’t kill in the heat of the moment, waiting until the attack by their partner was over and then “sneaking up on him” to deliver the fatal blow.

‘Battered woman syndrome’

The “battered woman syndrome” was first described by Lenore Walker in her book, The Battered Woman, published in 1979. In this book Walker adapted and extrapolated a theory developed by Martin Seligman, that exposure to unavoidable painful stimuli can render animals passive, helpless and unable to escape the painful situation even when given the opportunity.

Expert witnesses were called by defence lawyers in several cases in the US following publication of Walker’s theory, to give evidence that, in their opinion, the judgment of the accused woman had been affected by the syndrome. This psychiatric evidence was then used to argue that the woman had acted “reasonably”, if not at the standard expected of the “reasonable man” then at a lower standard, the standard to be expected of a battered woman whose psychology has been disturbed by years of torturous abuse.

Some feminists have welcomed the advent of the so-called “battered woman defence”. (“Battered woman” evidence, ironically, first received judicial recognition in Australia in the 1991 South Australian case of Runjanjic and Kontinnen, in which Derek Bollen was one of the three judges who heard the final appeal.) Undoubtedly it has played a part in the acquittal, or reduced sentence, of some abused women charged with homicide, but it has severe limitations, sick system, and our own Justice Bollen has highlighted one of its most fatal flaws.

Lenore Walker’s original “battered woman” formulation has been changed very little since its inception. Both the causes and symptoms of the “syndrome” have been narrowly defined. The battering cycle must be repetitive, the woman must exhibit “learned helplessness”. In the US women have been excluded from the definition because the violence they suffered in their home did not fit the “battering cycle” profile, or because they had proved they were not “helpless” by fighting back against the violence on previous occasions.

Both these elements were used by Bollen to exclude Geraldine Buzzacott from the definition. She was not “sufficiently battered”, she had previously “given as good as she got” and, for old times sake he threw in old chestnuts, “she could have escaped” and “it was unfair of her to use a knife when he only used his fists”.

So battered woman syndrome is not an antidote to Australia’s poisonously sexist legal system. Even worse, it is probably reinforcing the worst tendencies of that system. We are now back to the situation where women must prove virtual insanity, but certainly severely impaired judgment, in order to be legally excused for killing a violent husband to save their own lives. But if it is “reasonable” for a prisoner in a Nazi prison camp to kill an SS guard in an attempt to escape, what is so unreasonable about a woman who does the same thing to escape from a violent man? Women who survive domestic violence are brave and resourceful women who have a healthy desire not to end up one of the hundreds of women who are killed by violent husbands or partners in this country every year.

These are just some of the issues raised by the Buzzacott case. There are others. Why is it, for example, that Aboriginal people make up only 1.5% of the population and yet over 30% of women in prison are aboriginal and over 90% of these women are survivors of physical or sexual assault? Geraldine Buzzacott has suffered both for her gender and her race. She gets two years non-parole, Derek Bollen gets upset at the adverse publicity.

But Bollen and his ilk should not be the focus for of the campaign against the sexism and racism inherent in and perpetuated by the laws which govern us. He is an excellent example of a “sexist judge” but he is not the only example. And if Bollen had been through a judicial re-education program, or even if he had been a woman and a “feminist”, the existing law would not have provided the means for him/her to deal fairly with Geraldine Buzzacott. Perhaps the best he or she could have done would have been to clothe the injustice meted out by the court in more “judicious” and “sensitive” language, thus once again distracting the public gaze from the powerful and unaccountable monolith of “the law”.

From GLW issue 111

Fact Sheet Melbourne.pdf
Petition Melbourne.pdf
endorsement form Melbourne.pdf

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