Women activists and feminists have pointed to the way in which women are and have been treated before the courts for criminal offences. In her feminist analysis of the criminal trial process in Canada, and which has relevance for the Caribbean, Marguerite Russell examines various aspects of the criminal justice system. She specifically highlights the relationship between substance and procedure and the roles of the main players in the process: judges, lawyers and juries. She concludes that:
[W]estern law, of which Canadian criminal law is a part, has been constructed out of the male experience. Law is both support for and a means of exercising patriarchal domination. …patriarchal dominance has existed for so long that male experience under patriarchy is perceived as the norm. Thus concepts which have a particular importance in law such as “bias”, “neutrality”, ‘objectivity”, “reasonableness” and “common-sense” are all interpreted from a masculinist social construction of reality.
When feminists question this masculinist experience, they are immediately perceived as “biased”, “nonobjective”, “subjective”, “unreasonable” and “irrational, (“A Feminist Analysis of the Criminal Trial Process”, CJWL/Rifd, Vol. 3, 1989-1990, pp. 552-553).
Despite this, our view, based on discussions with members of the Caribbean criminal justice system, is that judges in the Caribbean’s political and legal systems can be impartial and can, in fact, be independent of government and state. That is to say they are not necessarily allied to the government of the day. Nor do they have to do its bidding. They may act in the context of their own judgement, but within the parameters of the law. For, we do believe that there is room for judicial discretion in the application of the law and judicial creativity in the framing of the law. Sometimes, however, we have to look beyond the confines of impartiality and independence and recognise that judges have been socialised in a particular political, social and cultural context. To some extent, therefore, it means that like the rest of society, it is difficult for them to be independent of influences such as class origin, class position, race origin, cultural context and gender bias. Judges, themselves have been, at times, conscious of their particular biases. This was the case of a fairly conservative English judge, one Lord Justice Scrutton, who, from as early as 1922, noted that:
…the habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that ,when you have to deal with other ideas, you do not give as round and accurate judgements as you would wish. This is one of the great difficulties at present with Labour. Labour says: “Where are your impartial judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice? It is very difficult sometimes to be sure that you put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class. (Cited in Ralph Miliband, The State in Capitalist Society, London: Weidenfeld and Nicholson, 1970, p. 141).
However, we will not argue in an absolute way that the ‘elistist’ position of judges in the state system includes an ideological position which casts them in a conservative mold since there is no linear relationship between race/class background, race/class position and race/class outlook. Nor is there a fixed and formulated idea about gender issues among the judiciary. One could also offer the view that within the judiciary of the Caribbean, there are various expressions which exert different kinds of influences and a broad spectrum of world views which govern decision making, sentencing and so on.
Domestic Violence: The Battered Woman
Violence against women is prevalent in all societies. Violence against women is an obstacle to their development as it violates and impairs their ability to enjoy quality life, human rights and fundamental freedoms. The term ‘violence against women’ as defined in the Beijing Platform of Action (1995) means “any act of gender-based violence which results in or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life”. Accordingly, violence against women encompasses, but is not limited to physical, sexual, mental, emotional and psychological violence in the private and in the public sphere. This includes battering, incest, pornography, marital rape, dowry-related violence, rape, sexual harassment, trafficking in women and forced prostitution, forced sterilisation, forced pregnancy, forced abortion, female infanticide and prenatal sex selection. This violence, in whatever form, is a manifestation of the historically unequal power relations between women and men and is essentially the product of cultural patterns which are rooted in relations of subordination and dominance. It is a culture in which men control both women’s bodies and all social institutions.
In our reality, we offer that violence is used against those women who dare to breach “social rules” and so this violence is used to contain these women within the constructed parameters of their roles and behaviours. In the case of domestic violence, we note the following. Domestic violence is increasing at an alarming rate worldwide and it is no secret that over 90 percent of battered women (battered by husband, lovers, partners, boyfriends) end up dead. At the same time, battered women, in some instances, end up killing their partners. This is, however, not as frequent as men killing women. In either case, the bottom line is battering. Women then become both perpetrators and victims of such a crime. So when women are killed by men and when they kill men, they both must face the courts on charges of homicide.
Within the criminal justice system, the state generally argues that both women and men should be given equal treatment in these cases. They are to be tried for murder and, if found guilty, must be given the death sentence (where this still takes place) or life imprisonment, sometimes without parole, for sins committed against the state. But, to understand the relationship between sentencing and domestic violence, one has to go beyond the confines of the law and locate this issue in its social context. However, this is not usually done in our justice system.
If this approach was taken by members of the criminal justice system, then they would be better prepared to understand and to be more sensitive to the involvement of women in violent crimes as both perpetrators and victims. But, to assist this approach government/the state must be willing to/or implement measures and programmes to increase the knowledge and understanding of the causes and consequences of domestic violence among those responsible for implementing these policies. In this respect, one can point to law enforcement officers i.e. police, members of the judiciary and the broader legal profession as well as medical workers. In other words, it is necessary to resocialise a group of people who have been socialised in the ideology of sexism, male chauvinism and patriarchal values, particularly in this situation where the law has been constructed out of the male experience and the criminal justice system acts on behalf of the state/status quo. This again is necessary because the same system which undervalues and marginalises women is being called upon to pursue sanctions in cases of violence against them.
In the absence of these programmes, we feel that ‘battering’ must be considered as a mitigating factor in trials of women who kill their partners. If this is done, it is only then can we begin to speak about real criminal justice.
The Battered Woman’s Syndrome
The case, Indravani Ramjattan v. State provides just as good as an example as any and forcefully brings home to the judiciary the need to consider the Battered Women’s Syndrome, as a mitigating factor in addition to self-defence and diminished responsibility in murder/manslaughter trials where women are charged for the murder of their partners.
On May 29, 1995, Ramjattan, along with two men, were convicted of the murder of her husband, Alexander Jordan and was sentenced to death by the Trinidad and Tobago Courts.
While Ramjattan did not kill her husband, she was seen by the court as being an accessory to his murder. She was convicted of such a crime and the state argued for the death sentence. The details of the case, recorded in Republic of Trinidad and Tobago in the Court of Appeal, Indravani Ramjattan and the State, CrA No. 98 of 1995, indicate that Ramjattan was constantly abused by her “insanely jealous” husband who accused her of “having other sexual relationships, while at the same time boasting of his sexual encounters with other women”[i]. He would torture her and threaten to kill her and the children. She eventually left him but he went for her. Noted Trinidadian psychiatrist, Dr. Eastman records one of Ramjattan’s episodes:
I saw him look through the window…he asked me to open the door and I refused and he kept on…he said he would break it down and he kicked it down. I jumped to get out of the house..he came back outside and I twisted my ankle so he got to me, took me inside, beat me up, all over cursing and ordered me, started to mash up things and told me to pack my things, but he did it….he took me and my children home. (CrA, No. 98 of 1995, p.8).
The document further states: “by the time they got home she was covered in blood, he threatened to kill her, locked her in the bedroom and told her that he was going to sink her head inside her neck with a piece of wood. He struck her on the head, hands, arms, back and feet until she fell unconscious”. In the doctor’s opinion, Ramjattan had “suffered from symptoms of depressive illness and of chronic post traumatic stress for several years” leading up to the time of the offence. He concluded that based on her psychological reactions, she exhibited the characteristics of battered woman’s syndrome. He summarises this condition as follows.
Learned helplessness; intense ambivalent attachment; precipitation of episodes (getting it over as soon as possible) decreased capacity to manipulate her circumstances constructively; depressive symptoms ; anxiety, reluctance to admit the abuse to friends or medical carers; diminishing attempts to leave; reduced motivation to protect herself; preoccupation with day to day survival; a latitude of acceptance.
Despite this expert evidence, “for over three years, Indrawani Ramjattan, a 34 year old mother of six, has sat in jail in Trinidad within the shadow of the hangman’s noose (as ) the state is pushing for her immediate execution” (Ira Mathur,” The Case of Indrawani (sic) Ramjattan”, n.d.) .
According to the Commission on Human Rights:
The particularly violent abuse which Ms. Ramjattan and the children suffered, and the effect of the abuse on her state of mind and actions, were apparently not taken into account when she was convicted of Murder and sentenced to death. Increasingly, courts around the world have accepted evidence of “battered women’s syndrome” in mitigation of charges of murder.
Ramjattan was on death row for three years and in prison for seven and a half years.
She was only given lenience (?) through the efforts of human rights organisations and women and feminist activists worldwide.
In situations like these, it is difficult to argue that women must be treated the same as men for committing a homicide and must be imprisoned or executed in the same way men are imprisoned or executed. Such an argument eschews fairness and questions the way in which justice is dispensed. It is our view that in instances where battered women kill their partners, it is an indication that the criminal justice system which is expected to protect these women and to punish their batterers more severely has failed them. In the case of Ramjattan, the law did not protect her, it punished her. Trinidad Senator Mahabir, in commenting on the case, cited cases in the country in which men who battered women to death have been treated with lenience by the judicial system. According to Mahabir, as quoted by Mathur, “violence seems to belong to males, if a woman commits a violent act against the male she is harshly punished….We have had many cases of men who have killed their wives and have been given only five or six years in prison”.
In circumstances such as these, we are proposing a requirement of the criminal justice system as it relates to capital and other sentencing: the consideration of battering as a mitigating factor, as is the case in Britain and the United States of America. Additionally, we may argue, as others have, that in murder cases, battered women should be excluded from eligibility from the death sentence altogether. For, even if they are convicted for murder, it seems unthinkable, inconceivable, unimaginable to justify executing a battered woman. The battered woman’s human and social rights are violated by her cruel husband or partner and she is further violated by a criminal justice system which deprives her of the right to recovery, the right to freedom and the right to life. She is twice violated in her struggle for life. But when women are sentenced for murder, our justice system pats itself on the back and says “justice has been done” as they claim to have acted fairly because women and men are treated equally before the law. This, in our view, can be seen as a travesty of justice which can only serve to undermine our Christian and religious principles which we hold so dear. The main lesson to be learnt here is that domestic violence is more than a straight legal issue. What is notable is that we speak about equal treatment in punishment for women and men but, as a society, we do not countenance equal treatment in social, economic, cultural, religious and political life.
Judith Soares, PhD, is Tutor Coordinator of the University of the West Indies Women and Development Unit