CONCLUSION AND RECOMMENDATIONS
The plight of battered women is one that requires special attention by the courts and law enforcement such as the police. Women have been subjected to unequal treatment historically and continue to succumb to the gnaws of domestic violence. Kenya has taken positive steps towards protection of women from intimate violence by enacting the Protection against Domestic Violence Act which aims at reducing and preventing violence in domestic relations by recognizing that domestic violence in its various forms in unacceptable behavior, and ensuring effective legal protection to victims of domestic violence. However, women are still subjected to domestic violence and are at a higher risk of being subjected to domestic violence as compared to their male counterparts.
The failure to eradicate domestic violence can be attributed to incompetence of the police with regard to laying charges, failure to assist in enforcing protection order, and gathering evidence. The societal gender-role conditioning has also lead to the failure of eradication of domestic violence.Women are supposed to be submissive to their husbands or male partners and stay in their relationships despite the challenges. Society constructs a married woman to have ‘high statuses’ compared to her unmarried counterparts. This constructs leave many women feeling trapped and hold the belief that killing their partner is their only option to survive.
Intimate partner violence and the subsequent killing of their partners’ leaves woman facing hard sentences ranging from life imprisonment to lengthy sentences of 15-25 years. Whilst they can rely on the defences of provocation, self-defense and insanity, these defences are not sufficient to accommodate their circumstances. For instance, the provocation defence serves to reduce murder to manslaughter, while self-defense requires response to imminence and a test of reasonableness.Therefore, self-defense will not be applicable in instances where women kill in non-confrontational circumstances or where a third party is hired to do the killing. The test of reasonableness, may require a battered woman to flee, and her endurance of the relationship and failure to attempt to get help or leave count against her as failure of being reasonable.
The defence of insanity portrays battered woman as having pathological incapacity hence unable to fully be in charge of her actions and such defence may subject her to societal discrimination and prejudice. Women should not be required to be mentally ill to be justified in protecting their lives. Therefore, there the current Kenyan criminal law framework does not adequately address the peculiar circumstances of the battered woman. These women are victims of unfortunate circumstances and should be accorded by an opportunity to prove their decision as a justification to protect their right to life and human dignity through a full defence.
Development Battered Woman Syndrome defence will offer relief to battered woman by helping the court to understand their experiences through an objective and subjective test. The objective test will examine the circumstances surrounding the killing while the subjective test will examine the mind frame and reasoning of the accused at the time of killing or the time leading to the killing. Additionally, a new standard of imminence can be adopted similar to that legislated in the United Kingdom that allows for cumulative abuse as justifying defence of self. Battered Woman Syndrome defence can also allow the examination of the different experiences of the victims as suggested by Canadian judges in R v. Malott and challenge the passive-submissive construct. A new defence will restore the status of a victim and allow for justice to be served.
From the foregoing discussion, this research proceeds to make the following recommendations that would be instrumental in incorporating and applying Battered Woman Syndrome in the Kenyan Courts:
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