State v. B.H., 870 A.2d 273 (N.J., 2005). Defendant’s conviction for first-degree aggravated sexual assault and third-degree endangering the welfare of a child was overturned because the jury was not allowed to consider fully the implications of Battered Woman Syndrome (BWS) on the subjective component of her duress defense. Defendant confessed to engaging in sexual intercourse with her seven-year-old stepson when he walked in on the defendant and her husband S.H having sex, but, alleged originally that she remained passive during the act that was orchestrated by S.H. At trial, defendant testified that S.H. threatened her and put his hand on her throat while the 7 year old engaged in sexual intercourse with her. At trial she presented the complete defense of duress and specifically testimony regarding BWS, however, the trial court limited the content and use of the expert testimony. She was convicted on both counts.
Defendant’s expert was allowed to give limited testimony regarding BWS. He testified about the syndrome and why abused women may continue to live in abusive situations. He also testified that a woman might engage in violent behavior toward her abuser. He was not allowed to give his opinion as to whether BWS would explain why a woman might lie about her abuser in an initial report to police. Finally, he stated that Defendant was a battered woman and fit the criteria for BWS.
The State presented a forensic psychiatrist who testified that BWS is not a recognized psychiatric diagnosis, but rather a theory employed in legal contexts to explain the dynamics in an abusive relationship. In his 30 years of practice he had never seen a battered woman assault a third party at the direction of her batterer. He did not think that the syndrome was helpful in the case of third party harm. He could not form an opinion as to whether Defendant was a “battered woman” at the time of the incident.
The trial judge instructed the jury on the defense of duress and BWS as follows:
Should you determine that she was so afflicted, that does not establish that she acted under duress. The sole purpose for which that evidence is offered to you is to explain why the defendant continued to live with her husband and why she hadn't left him. It may be considered, if you find it credible, on the issue of recklessness.
The experts' testimony, then regarding battered woman syndrome was not offered to establish that a person of reasonable firmness in the defendant's situation would have been unable to resist, but, rather, to clear up any misconceptions that you may have concerning the activities of battered women, and to understand a battered woman's state of mind.”
Defendant objected to the limiting instruction and the court declined to change its charge.
Defendant was convicted, the New Jersey Court of Appeals reversed, finding that with respect to BWS, the defense of duress was akin to justification of self-defense and that the jury must be able to consider BWS for multiple purposes.
The New Jersey Supreme Court modified and affirmed the appellate holding. There are two components to the complete defense of duress: the subjective determination that the victim honestly believes that there is an imminent threat of danger and the objective determination that a person of reasonable firmness would not be able to withstand the coercion experienced by Defendant. The Court found that with respect to the first issue, BWS was relevant and admissible as it assisted the trier of fact in assessing Defendant’s credibility and her state of mind. Therefore, it was error for the trial court not to allow testimony regarding BWS in that context. As for the objective requirement, the Court held that BWS testimony should have no bearing regarding the “person of reasonable firmness” determination. The trial court’s instruction that the jury could only use BWS testimony for evaluating recklessness was too narrow. The jury charge must properly and completely explain how BWS evidence may be considered. The charge in this case did not fulfill its obligation to provide a complete and clear “road map” for the jury.
The companion case, State v. Brennan, 870 A.2d 292 (N.J., 2005), was remanded for consideration consistent with B.H. In that case, a city tax collector admitted to stealing $250,000 and attempted to proffer BWS evidence at trial with regard to her abusive son.
