Siding With the Seventh Circuit: Why Evidence of Battered Woman Syndrome Should Be Admissible to Support Affirmative Duress Defenses

Blog Post | 111 KY. L. J. ONLINE | November 10, 2022

Siding With the Seventh Circuit: Why Evidence of Battered Woman Syndrome Should Be Admissible to Support Affirmative Duress Defenses

By: Bailey Pierce, Staff Editor, Vol. 111

“Battered Woman Syndrome” (hereinafter “BWS”) has historically been introduced to support a self-defense claim in homicide cases.[1] Instances of individuals acting out of fear of violence from their abusers, however, call into question the limited application of BWS for defendants in non-homicide cases. While several circuits argue that BWS evidence does not fall into the “objective” consideration of a duress defense, other circuits have correctly recognized that the psychological patterns seen in survivors of abuse are anything but subjective[2].

The Marjory Dingwall Story

In 2021, Marjory Dingwall was charged with three counts of robbery and three counts of brandishing a firearm during a crime of violence.[3] Dingwall admitted to the charges but claimed that she acted in fear of violent abuse from her boyfriend, Aaron Stanley.[4]

A deeper look into the facts paints a disturbing ­­­— and complex — picture. Dingwall met Stanley while in treatment for alcohol abuse.[5] After several bouts of homelessness and difficulty finding space at local homeless shelters, Dingwall and her daughter moved in with Stanley.[6] Dingwall became concerned with Stanley’s treatment of her, but after reaching the maximum stay at the homeless shelter, Dingwall was forced to move back in with him.[7] After Stanley began using crack cocaine, the abuse suffered by Dingwall escalated from emotional to physical. A clear pattern emerged: Stanley would beat Dingwall, “apologize profusely,” and then return to normal behavior before unpredictably beginning the cycle of abuse again. [8] When Stanley bought a gun, the violence Dingwall suffered only got worse. At one point, Stanley shot into the mattress on the side where Dingwall slept and pistol-whipped her for not “repaying” Stanley money she never owed him.[9]

In January 2019, when Stanley was out of drug money from his own previous robberies, he drove Dingwall to a Stop-N-Go gas station, put a gun in her hand, and said it was her turn.[10] That night, Stanley did not hit Dingwall, “sending the message that committing the crime as ordered was a way to avoid his abuse.”[11] Dingwall would commit two more robberies before being arrested.[12]

District Court Denial

The district court denied Dingwall’s motion in limine to allow statements by Dingwall, emails and text messages between Dingwall and Stanley, and an expert report from the Midwest Domestic Violence Resource Center into evidence. All of these exhibits would have shown the impact of abuse on Dingwall, just as they would have shown impact on any other reasonable person.  The district court argued the evidence was not relevant to the reasonableness requirement of both prongs of an affirmative duress defense.[13] Dingwall argued that such evidence is key to establish what is considered reasonable for a person in her situation.[14]

Psychology of Abuse

The Theory of Battered Woman Syndrome refers to the pattern of violence against women that results in “measurable psychological changes” that contribute to a “learned helplessness.”[15] The term was coined in the late 1970s by psychotherapist Lenore Walker, who found that survivors of repeated abuse find it difficult to “recogniz[e] opportunities for escape or other alternatives to their abusive environment.”[16] BWS evidence in a trial court often includes expert testimony on a psychological evaluation of the defendant, an introduction of empirical evidence and studies of abuse survivors, and accounts that detail the “tendencies of domestic violence survivors to act in certain ways.”[17] There is ample evidence that the psychology and decision-making of survivors of abuse are fundamentally different from those that have not experienced abuse.[18]

Circuits Divided

While BWS has been permitted for use in cases of self-defense, trial courts have been more hesitant to allow such evidence in cases where the defendant presents an affirmative duress defense, arguing that evidence of BWS goes against the objective standard of the duress defense.[19] An affirmative duress defense requires that the “fear of imminent death or serious injury” and absence of alternatives to committing the crime be objectively reviewed considering a reasonable person.[20] The Sixth, Seventh, Ninth, and D.C. Circuits allow the admission of BWS evidence, stating that such evidence can aid a reasonable fact finder in determining how an “objectively reasonable person in her circumstances may behave.”[21] On the contrary, the Second, Fifth, and Tenth Circuits argue that the introduction of evidence of BWS is “inherently subjective”[22] and, thus, inadmissible.[23]

Seventh Circuit Approach Should Prevail 

The Seventh Circuit held that Dingwall was improperly denied the opportunity to present evidence of the effects of abuse.[24] The Court determined that similar evidence has been presented in cases of sex trafficking and related crimes.[25] Most importantly, the Court defiantly rejected the opinions of the Second, Fifth, and Tenth Circuits, and firmly concluded that the experience of abuse survivors are objective realities.[26] This is the correct approach. Study after study has shown that survivors of abuse undergo a fundamental psychological change that impacts their decision-making and perception of imminent violence.[27] This perception, while completely objective, is specific to survivors of abuse and should be admitted when considering affirmative duress defenses. The experience of BWS survivors, like Marjory Dingwall, is not exceptional. The criminal trial process should work to serve especially the most vulnerable.

[1] See Ibn-Tamas v. United States, 407 A. 2d 626, 629 (D.C. 1979); State v. Norman, 366 S.E.2d 586, 592 (N.C. App. 1988).

[2] Compare Dando v. Yukins, 461 F.3d 791, 802 (6th Cir. 2006)(allowing expert evidence of battering and its effects to support a duress defense), United States v. Dingwall, 6 F.4th 744, 747 (7th Cir. 2021)( concluding that immediate physical presence of the threat is not always essential to a duress defense and that expert evidence of battering and its effects may be permitted to support a duress defense), United States v. Lopez, 913 F.3d 807, 826 (9th Cir. 2019)(allowing expert testimony to be used by a defendant to support their duress defense and rehabilitate their credibility), and United States v. Nwoye (Nwoye II), 824 F.3d 1129, 1132 (D.C. Cir. 2016)(allowing expert testimony on battered woman syndrome as a general matter to prove duress because such testimony can be reliable and can be relevant to both prongs of the duress defense), with United States v. Smith, 987 F.2d 888, 891 (2d Cir. 1993)(rejecting admission of evidence of abuse because it was irrelevant to a defense of duress), United States v. Willis, 38 F.3d 170, 178-179 (5th Cir. 1994)(finding that evidence of BWS was subjective evidence and is irrelevant to an irrelevant duress defense), and United States v. Dixon, 901 F.3d 1170, 1181 (10th Cir. 2018)(finding that the district court did not err in rejecting Ms. Dixon's duress defense and her tendered duress instruction).

[3] United States v. Dingwall, 6 F.4th 744, 745 (7th Cir. 2021).

[4] Id.

[5] Dingwall at 748.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. 

[12] Id.

[13] The two prongs of a duress defense are (1) reasonable fear of imminent death or serious injury, and (2) the absence of reasonable, legal alternatives to committing the crime. United States v. Sawyer, 558 F.3d 705, 711 (7th Cir. 2009).

[14] Dingwall at 751.

[15] Michaela Dunn, Subjective Vulnerabilities or Individualized Realities: The Merits of Including Evidence of Past Abuse to Support a Duress Defense, 54 Suffolk Univ. L. Rev. 347, 348 (2021).

[16] Id.

[17] Id. at 349.

[18] Id. at 348.

[19] United States v. Willis, 38 F.3d 170, 178 (5th Cir. 1994).

[20] See United States v. Sawyer, supra note 14.

[21] United States v. Dingwall, 6 F.4th 744, 761 (7th Cir. 2021).

[22] United States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994).

[23] United States v. Smith, 987 F.2d 888, 891 (2d Cir. 1993); United States v. Willis, 38 F.3d 170, 178 (5th Cir. 1994); United States v. Dixon, 901 F.3d 1170, 1181 (10th Cir. 2018).

[24] See United States v. Dingwall, supra note 15.

[25] Dingwall at 753.

[26] Id. at 760.

[27] National Institute of Justice, NCJ 160972, The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act (1996); Michaela Dunn, Subjective Vulnerabilities or Individualized Realities: The Merits of Including Evidence of Past Abuse to Support a Duress Defense, 54 Suffolk Univ. L. Rev. 347, 362 (2021); Alison L. Weitzer, The Revitalization of Battered Women Syndrome as Scientific Evidence with the Enforcement of the DSM-5, 18 Mich. State Univ. J. Med. & L. 89, 71 (2014).