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JULIA TOLMIE[*]
In commencing this research my aim was to further the work Julie Stubbs and I did by analysing the utility of an intersectional framework for other cultural groups. There have been a number of cases decided recently involving Pacific- Asian[3] women who either killed or attempted to kill their violent partners. I was able to access the transcripts of the trial and the judgments for two of these cases,[4] one decided in Australia and one in New Zealand. Accordingly I have divided the body of this article into two parts. In Part 1 I examine why the accuseds case for self-defence might have failed in Muy Ky Chhay.5 I will argue that an understanding of the accuseds positioning as a Cambodian immigrant woman was crucial in understanding and contextualising her behaviour for the purposes of this defence, and that the courts insensitivity to her positioning may have damaged the construction and reception of her self-defence case. In Part 2 I engage in a similar, although less detailed, analysis in respect of The Queen v Zhou[6] . In this case battered woman syndrome evidence was presented to support a successful plea of self-defence. My aim is to critique this use of syndrome evidence on the basis that, whilst it may arguably have contributed to a positive result,[7] it did so by means of constructing a fiction that sat disjunctively with both the facts and the law. It went no distance towards contexualising or positioning the accused for the purpose of constructing a realistic and logically cohesive case for self-defence.
Before turning to an analysis of the cases it is necessary to address some of the particular problems I faced in conducting this research. I view this as necessary in order to explain the structure and limitations of my own project as well as to suggest potential directions for future research.
In commencing this project I faced two difficulties which Julie Stubbs and I also needed to deal with in order to commence our previous work. The first difficulty in doing such research is the danger of essentialising and stereotyping the women whose experiences I am examining. The title of this paper refers to Pacific-Asian women. In fact I will be speaking of two women from two different countries, namely Cambodia, and China, each with its own very distinct history, language, religion and culture. There is no generic Pacific-Asian woman that spans the experiences of these two. Furthermore there is not within either of these countries a generic womens experience, or, indeed, a generic culture. Generalisations about women and about culture are inherently problematic. Of necessity such generalisations engage in reductive stereotypes, homogenise diversity, otherise and render static a dynamic and negotiated process.[8] This situation is further complicated by the fact that each of the women I am concerned with has had her experiences of her country of origin transformed by the very different, and individual, processes of immigration to Australia or New Zealand, either as a migrant or as a refugee.
Dealing with one of these issues, and acknowledging the dangers involved, Leti Volpp still advocates the admission of cultural information for immigrant criminal defendants in strategic contexts. [9] She suggests that this process should be undertaken in the spirit of what she calls strategic essentialism that is, consciously choosing to essentialise a particular community for the purpose of a specific political goal.[10] Strategic essentialism, she suggests, should ideally be undertaken by the affected community, which is best situated to select the appropriate circumstances in which to offer cultural information.
This brings me to my second difficulty, which is my own positioning as an Anglo-saxon woman. I have no personal experience of what it means to face the particular combinations of race and gender oppression which are faced by these women.[11] This in turn means that I am limited in what I can describe of those experiences. I do not have the lived experience to render visible the more pervasively racist aspects of my socialised perspective on the world. I am also in danger of simply constituting the experiences of those of whom I speak as amplified versions of my own experience and I am in danger of appropriating those experiences and voices as my own.[12]
Which brings me to the strategies that can be adopted to deal with these issues.[13] When I commenced this project my plan was to draw on research on domestic violence conducted by Cambodian and Chinese refugee and immigrant women wherever possible, as opposed to research conducted by those, like myself, whose subject positions were very different. Secondly, I planned to ground my general discussion of the operation of race and gender in the context of defences to murder in the actual specifics of the womens stories in the cases. In other words I wanted to focus on the testimony of the actual accused rather than start with generalisations about the experiences of women who share her subject position and then attempt to fit her story into those generalisations.[14] The first of these strategies turned out to be impossible. I found, when researching the background to Muy Ky Chhay for example, very little material on the experiences of Cambodian refugee women in general, let alone in relation to domestic violence. Gender is rendered invisible in most of the writing on Cambodian people. It is also the case that, of the limited amount of material that addresses gender, only a minuscule fraction appears to be written by women with a similar subject positioning to the women about whom they are writing. Also problematic is the fact that most of the material which is available on the specific experiences of Cambodian refugee women was written in a psychological as opposed to a sociological context. Much of this material is also full of sweeping and unproblematised generalisations about Cambodian, or worse Asian, culture. When I reviewed the literature dealing with the experiences of women from non- English speaking backgrounds I found it similarly unhelpful. Most of this material is repetitive and deals with categories of ethnic derivation which are so broad and imprecise (such as women in the non-English speaking world) as to be virtually useless.
This unsuccessful attempt to implement my first strategy in itself illustrates one of the potential consequences of intersectionality. The experiences of Cambodian women are rendered invisible in the research because little of it adequately addresses both gender and ethnicity. The research on Cambodian people fails to adequately document the experiences of women, whereas the research on the experiences of women is not sufficiently specific on the issue of ethnicity to be really useful.[15]
I was able to pursue the second strategy with some, although limited, success. The issue here becomes one of actually accessing the womens stories. My experiences in researching and writing on the battered woman syndrome raise major questions about the manner in which cases are selected for reporting, the way in which judgments are constructed and, in the present instance, the impact of this on women. Elsewhere I have argued that legalistic understandings of what is newsworthy have resulted in a chronic under-reporting of cases either arguing, or applying, or suitable for the application of, the battered woman syndrome.[16] Even when judgments can be accessed, which is usually only with the cooperation of someone involved in the particular trial process, they often do not reveal crucial factual detail and context. Many questions are left unanswered about the violence the woman faced and the social matrix within which she was attempting to deal with it. It is difficult to commence speaking from the perspective of the woman concerned when the judgment reveals more about the courts evaluation of what is important and its style of presenting information, and also when many of the important factual decisions the court is called upon to make are hidden or implicit.
This then is a very tentative beginning to this kind of work. I will not be providing a definitive analysis of what really happened in these two cases. Rather I will be providing a story about the kinds of things the court may have unearthed had it been more sensitive to the need to examine the accuseds selfdefence claim in each case in the context of their unique positioning.
Muy Ky Chhay was originally from Cambodia, where she survived the Pol Pot regime, before fleeing with her husband to a refugee camp in Thailand. From there the couple came to Australia as refugees, with those of their children who had been born in the camp and had survived.
She was charged with murdering her husband. Her main defence was selfdefence, with provocation raised in the alternative. Somewhat surprisingly, given that her husband had been psychologically and physically violent towards her for many years, battered woman syndrome evidence was not presented in support of either of those defences. Both defences were rejected by the jury and she was convicted. She was sentenced to twelve years imprisonment, to serve a minimum of six. She appealed on the basis that the trial judge had misdirected the jury on the law relating to provocation. The appeal was allowed and the case was set down for rehearing. In fact there was no retrial. Instead she pleaded guilty to manslaughter, this was accepted by the Crown, and she was sentenced to eight years imprisonment, to serve a minimum of four.
When I first came across this case I was puzzled by two things the fact that she was convicted of murder at first instance and the harsh nature of the sentence, particularly once her conviction had been reduced to manslaughter. I consider her sentence to be harsh for a number of reasons. First, because the attitudes of the legal profession and of the criminal courts towards women who kill in the context of domestic violence have changed considerably in recent years (coinciding with the advent of the battered woman syndrome). From what I have been able to discern sentences are typically much less onerous than the one imposed in this case.[18] There have even been a number of instances where women in a roughly similar position have received suspended sentences.[19] Secondly, the sentence seems excessive given that the accused presented as a person with a model character, and in due course as a model prisoner, who had no previous convictions, who the judge accepted was unlikely to ever offend again, and who had only killed her partner as a result of her sustained ill-treatment at his hands. Thirdly, the sentence seems particularly onerous when it is considered that she is a person for whom imprisonment is an extremely weighty form of punishment. As a refugee woman with limited English language skills she faces severe disadvantages in prison.[20]
Why did she fail to successfully raise self-defence? Why was her sentence ultimately so onerous? Access to the transcript and further contemplation brought me to the realisation that the concept of intersectionality is of use in coming to grips with the answers to these questions. The accused fell at the intersection of a range of different hierarchies of oppression. She did so because she was a woman, she was a survivor of war trauma, she was a refugee, and she was from a non- English speaking background. These factors interacted to severely restrict her efforts to negotiate the violent treatment she received at the hands of her husband and to result in the Court failing to accurately credit her particular positioning when it was eventually called upon to assign meaning to her behaviour.[21]
In order to argue self-defence in New South Wales the accused needed to establish that she believed on reasonable grounds that her action in killing her husband was necessary in self-defence.[22] Two features of her evidence are thus of crucial relevance. The first is the nature of the threat she faced at the time she acted. This would involve assessing the violence threatened by the deceased at the relevant time, as interpreted in the context of his past violent behaviour towards her. The second is whether she had alternative courses of action available to deal with the threat she faced from him. Clearly if she was able to perceive realistic alternatives to lethal self-help then her actions were not necessary to defend herself.
For convenience I have divided my analysis of the impact that the accuseds positioning as a Cambodian refugee woman had on her case into four sections. First, I will look at the issue of her credibility. Secondly, I will look at the degree to which evidence of the deceaseds violence was received in court. Thirdly, I will look at the accuseds alternatives to lethal self help as a strategy for dealing with the deceaseds violence, and the extent to which these were investigated by the court. Finally, I will consider barriers to communication by the accused in court.
Of strongest detriment to the accuseds case seems to be the fact that she lied to the police when they first responded to her call about her husbands death. She said that robbers had broken into the house, stolen her gold and jewellery, and killed her husband. She maintained this story throughout a police interview (conducted through an interpreter), and in the face of disbelief expressed by one of the detective sergeants.
Once she had visited her lawyer she then changed her story. She admitted that she had killed her husband, and she produced the clothing she had worn at the time and the cleaver she had used, but said that she had only killed him in response to being attacked by him. She described a classic self-defence scenario. According to her he had initially swung the cleaver at her. In response she had ducked, grabbed his legs, tripped him up, picked up the cleaver from where he had dropped it and chopped him with it in order to prevent him from killing her or her children. Whilst this was consistent with the facts, the facts fitted most comfortably with her having killed him whilst he was lying on the floor, possibly asleep. The latter scenario might also be more typical of the manner in which women who are the victims of acute violence tend to defend themselves against their perpetrators.
At the sentencing stage psychiatric evidence was introduced which raised a third scenario. This was that she had in fact killed her husband whilst he was asleep, but that she had done so in response to his behaviour earlier that night which represented an escalation in his violence. According to what she told the psychiatrist, there were two things that were different about his behaviour on the night in question. These were that he had made death threats in front of the children, and that he had made them holding a knife. She thus believed that her living situation had suddenly become more threatening than before and that her and her childrens lives were in danger.
Why had she initially lied to the police? The Crown suggested that she had done so because she knew that she was guilty and she was trying to avoid conviction. This is certainly an interpretation that was open on the facts. However there is another possible explanation for the accuseds behaviour an explanation that was not addressed in court and that relates to Chhays recent history. In order to elaborate on this point I am providing the following generalised account[23] of the history of the Pol Pot regime in Cambodia.[24]
In Cambodia in 1975 the Pol Pot regime came to power. The first thing they did was resettle nearly three million people into rural cooperatives.[25] In the city of Phnom Penh, where Muy Ky Chhay lived, virtually the entire population was ordered to evacuate the city and move into the rural areas.[26]
Initially there was a dichotomy between the new people (those deported from Phnom Penh and other areas) and the old or base people (who tended to be rural peasants).[27] The urban dwellers, as class enemies, were forced to adopt the life of menial labourers. The old people had class superiority. This meant that they found it easier to feed themselves and they were more trusted by the regime. Estimates seem to agree that about one-third of the inhabitants of Cambodia became new people. [28]
What living conditions between 1975 and 1979 were like depended on the zone in question. Unofficial estimates claim that overall more than one million people died during this period.[29] Later estimates placed the toll at over two million people.[30] Others suggest that approximately three of Cambodias seven million people died.[31] Most adult Khmer people have been victims of trauma and some of them have been tortured or witnessed the torture of others.[32] People died from physical exhaustion,[33] and a lack of medical treatment.[35] The other major cause of death was execution.[36] How frequent and arbitrary executions were depended on the area:
Some authorities were pragmatic and ignored a persons background as long as he or she obeyed orders. Others, particularly those in less established areas in the North West, attacked cooperative members like zealots searching for those with improper class composition.[37]
A survivor from one area recounts his experience as follows:
Executions were frequent. Every night two or three new inhabitants were convened for a meeting and disappeared without a trace. Nobody dared to enquire as to the fate of the unfortunates; family members could not even weep, for fear of being accused of complicity. If one was called for an unusual time above all at night it was inevitably to be killed. We lived in perpetual fear, like fish in a trap, never knowing when our turn would come to be exterminated. To survive one had to be very prudent. Everybody distrusted everybody else, because spies were planted among us. The Khmer Rouge had set up a very efficient espionage system children of six to eight years had to spy on their parents.[38]
People targeted as class enemies included imperialists (anyone considered foreign, sometimes encompassing the ethnic Chinese)[39] and the comprador capitalist class (the people who had owned and controlled the wealth of the country, a category interpreted to consist largely of the ethnic Chinese).[40] Some people successfully remade their identities to convince cadre that they were from poor or humble backgrounds so that they would be permitted to survive.[41] People learned to hide their family backgrounds and their histories and censor their thoughts and behaviour.[42] Presumably this is something that Muy Ky Chhay learned to do, given that she came from a merchant family and was also probably ethnic Chinese.[43] We do not know what zone she was in or how many of her family actually survived.
There was a nationwide attempt to remodel peoples ways of thinking and acting.[44] Communal weddings began in early 1977. The party decided who should marry who and there were visitation rights between the couple on the few times a month when the woman believed herself to be fertile. It was during this period that Muy Ky Chhay was made to marry her husband, who was chosen for her by the State. Muy Ky Chhay and her husband would have been some of the many who fled across the border into Thailand in 1979 once the Pol Pot regime was finally overthrown.[45]
There is little written on the specific experiences of Cambodian women throughout these times.[46] When the particularity of their experience receives mention this tends to be among health professionals dealing with the psychological effects of surviving war trauma. Arguably this is in keeping with what some have argued is a trend towards psychologising women and their life experiences.
Returning to my original question why did the accused initially lie to the police in this case? One obvious explanation is that lying is an instinctive and natural response in crises for someone who has survived a holocaust and who, in order to survive it, needed to lie to authority figures about their identity and history. The police (as representative of the State) are not the semi-benign truth-seeking force to a person coming out of Muy Ky Chhays background that they have been until recently in the cultural mythology of white middle-class Australia. It is understandable that anyone in a time of crisis might panic and provide a selfserving account of themselves to State authorities. For someone coming from Muy Ky Chhays history it is more than understandable that she might do so, it seems almost to be expected.[47]
Whilst giving evidence Muy Ky Chhay alluded to the history she had survived. Her brother also mentioned her experiences in Cambodia during his testimony. There are a number of reasons why this evidence was inadequate for the purpose of contextualising, and providing a possible explanation for, her lies.
First, her history was not actually used in court to explain why she may have initially lied to the police. In his summing up, the judge said that the jury could consider that the accuseds lies were evidence of her awareness that she was guilty, and her desire to avoid responsibility for her guilt, if they concluded that there was in the circumstances no other reasonable explanation for her lies. He provided the jury with a number of potential explanations as to why she may have lied, other than in consciousness of guilt:
She may have been trying to save herself from embarrassment in relation to something else she had done about which she was ashamed and which she wished to conceal, or she may have been trying to protect someone else from embarrassment in relation to what she had done or she may be fearful that her truthful denials would not be believed unless she bolstered them up with a false story ... Sometimes lies are told to bolster up a just cause or out of shame or a wish to conceal disgraceful behaviour or as a result of panic, fear, weakness of mind and many other reasons. You must also consider that under stress a person will sometimes lie without thinking carefully about it.[48]
What is striking about this statement is that none of the examples provided by the judge are linked in any useful or specific way to the particularity of the accuseds experiences. As a consequence none of the examples are cogent or convincing. If anything the judge tended to discount or minimise the significance of the accuseds recent history by telling the jury that it was relevant only to her state of mind when she killed the deceased and any sympathy or prejudice they might personally feel towards her (which he cautioned them to put aside as she had now placed herself under the protection of the Australian legal system).[49]
Secondly, even if the potential link between the accuseds past experiences and her lies had been made explicit it is unlikely that the jury would have benefited much from the connection because her past experiences were not adequately described in court. In her testimony Muy Ky Chhay mentioned her forced evacuation into the countryside, seeing people tied to trees and beaten for stealing food, and marrying her husband for fear of being disappeared. Her evidence on this subject, however, is extremely brief, consisting of two pages out of the 175 pages of overall testimony before the court. It is also the case that her account is unstructured, sketchy, and incomplete. Her brother in law, who provided a history of his experiences under the Pol Pot regime in the absence of the jury, was only permitted to tell the jury that Muy Ky Chhays marriage was forced and about the circumstances in which he had met her and her husband in the refugee camp.
It is deeply problematic that the survivors of trauma themselves were relied on in Court to explain their circumstances. Trauma survivors do not necessarily have good recall of their experiences. Post traumatic stress disorder,[50] for example, has, as one of the clutch of symptoms commonly associated with it, memory impairment.[51] Trauma survivors can also tend to minimise (or avoid describing) their experiences.[52]
In addition there is the issue of time and of trust. J David Kinzie et al, who studied post traumatic stress disorder among survivors of Cambodian concentration camps,[53] found that the patients in their study revealed their histories reluctantly and incompletely. Only after a relationship had been established with the therapist were they willing to go into detail. Richard Mollica, Grace Wyshak and James Lavelle, who conducted a study of 52 patients in a clinic for Indochinese people,[54] also found that more trauma related information came out over the course of the interviews than was initially provided in their clinical evaluation and treatment.[55]
There is some suggestion that the sexual abuse of women may be a particularly widespread and hidden aspect of the trauma survived by Cambodian people.[56] Richard Mollica, Grace Wyshak and James Lavelle, for example, found that a significant proportion of the women in their study had been raped or sexually abused and that this history of sexual violence is rarely directly provided to the staff by refugee women ... Little is known about the cultural and emotional factors that inhibit refugee women from seeking help for rape trauma or the coping styles they use to deal with this problem.[57] Most of the women in their study did not discuss their sexual abuse until about three years into therapy.[58] Kien Dang and Caroline Alcorso were similarly unable to provide case studies of this particular form of abuse in their discussion of domestic violence within the Indo-Chinese community because, in their words, in Indo-Chinese society sexual practices are almost never referred to openly and mostly are not referred to at all.[59]
This material raises serious concerns about the fairness of expecting the accused to provide an accurate account of herself and her experiences in the courtroom, and of judging her on the basis of that material. It is possible that not only was the description of her experiences under the Pol Pot regime incomplete, but that so was her account of her mistreatment at the hands of her husband. There may be elements of her account that never emerge or could not possibly emerge until years down the track within the context of a trusting and skilful therapeutic relationship. This material also suggests that of the three stories provided by the accused, the third is likely to be the most accurate, because of the context in which it was shared. And furthermore, that the layering and the evolution of her telling is not evidence of her shiftiness, general dishonesty or lack of credibility, but a fairly typical coping response both to the experiences she survived and the circumstances in which she was expected to disclose her survival. None of these points appear to have been understood by those involved in constructing her case or judging it.
The lies of the accused, the courts failure to come to grips with the context within which they occurred, and the accuseds ethnicity may be the key to understanding something else that at first puzzled me about this case.
Donald Nicolson is one of a number of scholars who argue that the courts perception of whether a woman is complying with the indices of femininity influences its construction of, and therefore its treatment of, her.[60] The relevant standards of appropriate femininity privilege women who exhibit the passive aspects of femininity over those who display rational agency, aggression and the deviousness of the pathological other.
What Muy Ky Chhays case shows is that it is important to examine the intersection of race and gender in the courts construction of women who resort to lethal self help,[61] something that Nicolson does not do. In this case I would raise the possibility that there are narratives about gender and race that operate to reinforce each other and give additional significance to the fact that she lied.
What puzzled me about this case is that Muy Ky Chhay displayed all the characteristics of appropriate femininity and yet received relatively onerous treatment in the hands of the court. Whilst her survival testifies to the fact that she is strong, determined, resourceful, able and brave, she was not described in this manner by those who spoke of her in court. Instead she was described by a number of people as a kind, honest, hard working, gentle, soft spoken, non violent person and a good mother. On appeal she was described as the model prisoner. It was accepted in both instances that the only reason she killed her partner was because of his sustained abuse. In a sense Muy Ky Chhay was able to be constructed as the perfect feminine. When one looks at representations of Asian women, her harsh treatment becomes even more puzzling because these descriptions of her are reinforced by stereotypical narratives about Asian women that construct them as the archetypical feminine.[62]
But there are other narratives of Asian people. For example, representations[63] characterising them as inscrutable, dangerous, cold and self interested. People who might, at face value, appear submissive and quiet but cannot be trusted because this masks self interested manipulation. There is a possibility that Muy Ky Chhays lies access these sorts of racist narratives about her ethnicity and transform her from the archetype of the appropriate feminine into something like the Rose Hancocks[64] of this world. Such narratives are reinforced by gender stereotypes about calculating and deceitful women.
Certainly a damaging picture and one that is consistent with this possible characterisation of Muy Ky Chhay, was presented by the testimony of the ambulance officers and senior constable who were first to arrive at the scene of the crime. These witnesses described her urgent concern and her tears about the loss of her gold and jewellery, whilst the corpse of her husband lay in the adjoining lounge. Reading the transcript I am left wondering how much these witnesses were affected by their stereotypes and preconceptions, and their difficulties in communicating with her, when perceiving and constructing her reactions. One of the ambulance officers who gave this damaging testimony, for example, could not even identify the accused in court because he could not remember her face. She becomes part of the faceless horde when he refers to her throughout his testimony as the Asian lady.[65]
Australian courts have not been good at investigating and crediting domestic violence.[66] Women who kill to protect themselves from violence tend to have the history of violence, and sometimes the attack against which they were defending themselves, minimised or ignored. This tendency is exacerbated in Muy Ky Chhays case by the fact that her testimony had little credibility and yet most of the evidence of the deceaseds violence came from her testimony alone. My argument here is that the accuseds positioning as a Cambodian refugee woman contributed to a lack of corroborating evidence about the deceaseds violence and that the court should have been and was not sensitive to this fact.
The accused testified to years of physical abuse at the hands of her husband but there were very few witnesses who actually saw him be physically violent towards her at any stage in their marriage. Neither of their two children who testified, her sister, her brother or her brother-in-law had actually witnessed physical abuse. At best these witnesses were able to give indirect evidence of the deceaseds physical violence, such as bruising, the deceased raising his hand to her but not actually striking her and his extensive psychological cruelty towards her. Only one witness could actually testify to witnessing the deceased bashing and kicking the accused. This witness, Samang Yem,[67] had first done so whilst living with the Chhays in conditions where there was no real private space. She had observed the violence through a partition of leaves that separated the two families living quarters in the refugee camps in Thailand. She said that she had observed four or five attacks in the year that she lived there. Each lasted several hours and was accompanied by death threats. She also said that no one had intervened because they were afraid of the deceased.
Similarly, no one had witnessed the violence that the accused alleged she had been defending herself against on the night she killed her husband. Visitors to the family earlier in the evening[68] said that the deceased had been raging, hitting furniture and verbally abusing the accused but seemed to have calmed down by the time they left.
It is not unusual for batterers to hit their targets in secret, to hit their targets on parts of the body where bruising does not show, to lie about the occurrence of their violence, and/or to isolate their targets from potential support or assistance. Certainly Muy Ky Chhay explained the lack of witnesses on the basis that the deceased had always attacked her when she was vulnerable because there was no one around to help her:
He never hit me in front of anyone, even the children or relations or friends there, he never hit me until no one there and so then he hit me. Because if no one there no one can help me.[69]
It is also not unusual for victims of domestic violence to feel shame around the occurrence of violence and to be complicit in the coverup of it. Muy Ky Chhay commented that she hid the violence from her children to protect them from the knowledge of it:
I tried to hide it from my children because I am worried that if I let them know they might not do any good at school.[70]
Researchers[71] have suggested that the deep seated cultural value of family loyalty, the idea that individuals in the family should sacrifice their own interests to benefit the family as a unit and the cultural notion of shame [72] or loss of face, which ideally function within some Asian cultures as a check on the occurrence of domestic violence, can end up not preventing it but rather keeping it hidden. If this is correct then these cultural taboos may provide an additional reason why the deceaseds violence was unlikely to be directly witnessed in this case. [73]
Certainly notions of shame that extend beyond the individual to encompass the family as a unit, and everyone in it, are one possible way of making sense of Muy Ky Chhays cryptic comment that:
The reason that I did not let the police know that he abused me because I love my children.[74]
A problem with having to rely on evidence that only indirectly corroborated the accuseds allegations of physical abuse is that this type of evidence is likely to be excluded by the operation of the rules of evidence. There are several obvious examples of this happening in the present case. First, Muy Ky Chhays brother attempted at several stages during his testimony[75] to tell the court that the deceased often went to hit the accused but desisted only because there were other people (such as himself) present. His comments to this effect were ruled inadmissible, presumably because he was offering an opinion.[76] The way this rule operates is unfortunate given the enhanced significance of this evidence in such a case and the fact that an eye witness who understood the cultural matrix within which the deceased was situated had many advantages over the jury in interpreting the nuances of the deceaseds body language. Secondly, Muy Ky Chhays sister[77] was not permitted to tell the court that the accused had confessed to her that the deceased was hitting her. Presumably this evidence was excluded either under the rule against hearsay, or the rule against prior inconsistent statements. In Muy Ky Chhays case this was valuable evidence not just because the actual words she spoke to her sister corroborated the story she told in court, but also arguably because the very fact that she had spoken at all, given the cultural taboos against doing so,[78] indicated her level of desperation in her marriage and thus substantiated the story she told in court. If the court had appreciated her cultural positioning it may have been open to admitting the evidence, as falling outside the rule against hearsay or prior inconsistent statements, on the basis that the relevance of the evidence could be found in the act of speaking, rather than in the actual words spoken.[79]
In this case the paucity of corroborative evidence on the subject of the deceaseds physical violence was compounded by the fact that the corroborative evidence which was provided was provided by witnesses who had great difficulties in communicating in English. This is so in spite of the fact that all of these witnesses, other than the two children, communicated through an interpreter, a point I will return to below. As a consequence of their communication difficulties these witnesses tended to give testimony that was, in parts, vague, confusing and seemingly contradictory. Even when the confusion did not occur around crucial issues it may nonetheless have impinged on their general credibility as witnesses.
An example of these sorts of communication difficulties occurring around a crucial issue can be found in the testimony of Samang Yem, the only witness to the deceaseds direct physical violence.[80] She testified to seeing the deceased attack the accused in the refugee camp and in Australia. Initially she appeared to claim to have witnessed four or five incidents of physical abuse whilst in Australia. In elaboration of this point she described an occasion where she visited the couple in their flat, witnessed the deceased punching and kicking the accused through an open door, and quietly left before she was seen by them. She also appeared to suggest that the other three or four occasions when she had witnessed violence she had done so from her flat, through the windows of the Chhays flat. However when she was pressed for further details about these occasions, it kept becoming apparent that she had reverted to describing the incident she had originally outlined. At some point into her testimony she then appears to suggest, although it never becomes completely clear, that there was in fact only one occasion on which she witnessed the deceased hitting the accused in Australia and on that occasion he hit her four or five times.
Communication barriers also render suspect the evidence from some of the English-speaking witnesses on matters relevant to the deceaseds violence. For example, the ambulance officer who examined Muy Ky Chhay at the scene of the crime testified that she had no injuries. [81] Her evidence was accepted uncritically by the court. Injuries would have supported, although were not necessary to, her claim that that she had killed her husband whilst being attacked by him. The officer said that she had only lightly examined the accused because she did not complain of injuries or pain, the implication being that, had she injuries or pain which were not immediately obvious, then she would have communicated this fact. Yet other witnesses at the scene of the crime observed that the accused did not speak enough English to answer even the general questions they asked her.
The combination of these circumstances the lack of witnesses who could directly corroborate the accuseds tale of physical abuse, the difficulty in communicating with those witnesses that did exist, the exclusion of important indirect evidence because of the rules of evidence and the lack of credibility accorded to the accuseds account of her circumstances meant that the deceaseds violence tended to get discounted or disappear in the trial judges judgment.[82] In consequence, the overall and possibly erroneous impression one is left with, is that the level of violence on the part of the deceased was psychological rather than physical. Psychological cruelty has yet to be held in Australia to be a sufficient threat to justify a lethal defensive response.
It is also worth noting that the severity and meaning of psychological abuse may differ according to the cultural context in which it occurs. For example, the accused testified extensively about the financial deprivation she suffered at the hands of the deceased.[83] In particular that he refused to allow her to spend money on medical supplies for herself or their children. That she saw this as a particularly oppressive form of behaviour might be explained by the fact that the first time he prevented her from getting medical supplies, their sick child died as a consequence. Or it might be explained by the fact that whenever she or one of the children fell sick subsequently, she chose to defy her husband to buy medical supplies or visit a doctor, thus voluntarily braving a beating from him. Or it might be explained by the fact that the outright denial of money is clearly seen as bad behaviour and a form of violence within the Cambodian community, unlike other forms of non-physical abuse.[84] Obviously none of these explanations are mutually exclusive.
The question of whether a woman had reasonable grounds for perceiving that it was necessary to use lethal self help to deal with her perpetrator, in the hands of the average Australian Court, appears to become a focus on why the woman concerned did not terminate her relationship with the perpetrator. Presumably this is because of the erroneous, but very common assumption that leaving a relationship is always a safe and effective way for women to deal with domestic violence. The present case is no exception. The evidence that was clearly directed towards explaining Muy Ky Chhays options for dealing with the violence was primarily directed at explaining why she had not left the marriage. Even within this narrow field of inquiry the evidence was extremely limited in what it dealt with.
(i) Cultural Barriers to Leaving
The accused explained her decision not to leave her husband in spite of the violence she was suffering in terms of the length of time she had spent with him and in terms of her cultural values. The sum total of this evidence is in the following two comments:
I tried very hard because it tradition that I have to be live with my husband. Even how bad he did to me but I still try very hard to be with him because the custom have to be like that.[85] At the same time I think that I have been married to him for long year, over ten years. My custom also, even the husband do anything to us we have to be very patient.[86]
The accuseds evidence to this effect was supported by that of her brother-in-law, Bak Seng Kour:
Q. At the time that you knew Muy Ky back in Phnom Penh, did it seem to
you that she had been brought up according to traditional Cambodian
customs and beliefs?
A. Yes
Q. According to those beliefs, would it be very rare for a Cambodian woman
to leave her husband?
A. Yes, very rare.
Q. Even if the husbands behaviour was bad the woman would be expected
to stay with him; was that traditional Cambodian custom?
A. Yes, it is Cambodian custom.
Q. It is still is, it is still Cambodian tradition?
A. Yes
HIS HONOUR: Do you mean in Cambodia or do you mean here, they
have been here some years?
[DEFENCE COUNSEL]: I wont go down that road.[87]
Evidence to a similar effect was given by her eldest sister, Muy Keav:
Q. As the oldest daughter you took a lot of responsibility for Muy Kys
upbringing?
A. Yes
Q. Was she brought up according to traditional Cambodian customs and
beliefs?
A. Yes
Q. Was it one of those customs that a Cambodian married woman would be
expected to stay with her husband even if she were badly treated?
A. Yes
Q. Particularly, I suppose, if there were children?
A. Yes.[88]
Judy Ledgerwood argues that traditionally Cambodian women were considered to exercise a kind of female power, in that a womans virtue affected the status and the karmic possibilities of the man in a marriage.[89] In other words, a wife had the power to make or break her husband. There are many facets of the complex concept of virtue as it applied to women.[90] One aspect is that the virtuous women will accept her husband and offer him complete obedience and devotion, even in the face of his anger.[91] As part of this package of beliefs it is assumed that a man would not hit his wife if he did not have good reason for doing so.[92] In other words, it is the behaviour of the woman which is the true cause of his problem. What this appears to mean is that women have a particularly strong responsibility to maintain the family system. Judy Ledgerwood comments that:
During my research I met only two divorced women, one who had divorced her husband while still in Cambodia and one in the United States. In both cases the women had been physically abused by their husbands, and yet the women were much maligned within the community. It was assumed that the problems in the marriages had been their fault, just as it was assumed that they had done something wrong or their husbands would not have hit them in the first place.[93]
These anecdotes also illustrate the point that stepping outside the institutions of marriage and the family can mean, for Cambodian women, leaving their community:
Marriage and the Family are the basis of the social order. Those who go outside these institutions are considered anti-social. As such society owes them no respect or support and they survive, isolated, as best they can.[94]
This phenomenon could be viewed as an example of what many authors have commented is a tendency on the part of many Asian cultures to be group orientated rather than individualistic. Thus Nilda Rimonte states that:
Identity for the individual Pacific-Asian does not come about by separation from the group, as it does in the Western concept of individuation, a process of differentiation and self-definition. Identity for the Pacific-Asian means belonging to a group.[95]
The simple contrast between East and West contained in this comment is, however, problematic. Some have argued, for example, that within Western cultures women build their identities on a sense of connectedness to others and that this can be contrasted with a male sense of identity which is founded on separateness.[96]
Regardless of how this phenomenon is conceptualised, what it means for Cambodian women is that leaving a violent relationship may involve not just transgressing their gender roles but also rejecting their ethnic identities. Thus Nilda Rimonte, when describing the group focus of most Pacific-Asian cultures, goes on to say that:
When a Pacific-Asian victim chooses to end her victimisation and leave her abuser, she, in effect, chooses herself and her individual well-being. But she may be doing so at the expense of her family and her obligations to her group. For a
Pacific-Asian, whose identity is defined by belonging to or being part of a group, the rejection of her family may be tantamount to a rejection of her ethnic identity.[97]
These traditional cultural values are not static. The extent to which they have been affected by the Khmer Rouge years in Cambodia (when the State took control of sexuality and attempted to break down all sense of family structure) and the subsequent refugee experience, is not apparent from the available research.[98] Judy Ledgerwood has suggested that one possible coping strategy in response to the breakdown of social order is to restate the model for appropriate behaviour in very rigid terms.[99] If this strategy was adopted then the traditional beliefs described above would be returned to, amongst some segments of the Cambodian community at least, with greater vengeance.
Some indication that this could be happening is provided by the low level of family support Pacific-Asian women who were the targets of domestic violence, and who were interviewed by Kien Dang and Carolyn Alcorso, had received. Only a little over half of their families were supportive.[100] In some cases the family went so far as to engage in active non-support. The researchers found that the families of the Khmer women they interviewed tended to take a particularly conservative view of conjugal relations.
A point not raised in Court in Chhay is that the proscription within Cambodian communities against leaving violent marriages, to the extent that it survives resettlement, is likely to be compounded by two aspects of the experience of being a refugee in Australia. First, in the experience of social isolation inherent in the process of resettlement. Secondly, in the levels of racism Asian people confront in Australian society. Both of these factors mean that a woman in Muy Ky Chhays position may not be able to afford to reject her ethnic identity. The experience of being a refugee[101] (including the barriers presented by language) had meant that many of the women interviewed by Kien Dang and Carolyn Alcorso were extremely isolated at the time of the violence and terrified of surviving in Sydney on their own. Their report raises the overwhelming loneliness which such women face if they leave their marriages, commenting; It is hard to appreciate the stigma attached to marriage breakdown within the community and the loneliness of facing this in an alien community.[102] Whilst isolation is a result of the resettlement experience for both men and women, men do not face the same social stigma within the Cambodian community on the breakdown of their marriages, nor, arguably, do they face quite the same levels of isolation that women do, either in that community or in the broader Australian community.[103] Her family and her community, unsupportive as they may be, may also be the only sanctuary that a woman in the position of the accused has from the levels of racism and racist violence that she experiences in Australian society.[104] Again, whilst men and women experience racism within the broader community, the experience is both intensified and different for women because of the intersection of a hierarchy of gender oppression as well.
(ii) Structural Impediments to Leaving
Because of the general socio-economic disadvantages women face, many experience severe structural impediments to exit from a violent relationship, particularly if they have dependent children.[105] Women who are refugees from a non-English speaking background face a compounded level of structural difficulty that can look almost insurmountable.[106] Typically Australian courts rarely discuss the structural obstacles battered women face in escaping or negotiating the relationship and building decent lives for themselves and their children. This is true in Chhay.
People immigrating from non-English speaking countries face the difficulty of starting life afresh in Australia and in successfully doing so must overcome language barriers, cultural differences and levels of racism in the general Australian community. For refugees this task is of a different order. Not only must they resettle, but they must do so with all the emotional devastation of having survived severe trauma and loss and often with no material resources whatsoever. Community welfare agencies have identified the Cambodian community as a refugee group which, because of its experiences, is particularly badly resourced.[107] Within the Cambodian community women are further disadvantaged.
Women are less likely to have occupational qualifications. Among the Cambodian born population in Australia only 13.5 per cent of females and 16.7 per cent of males had some sort of occupational or educational qualification in 1991, compared to 32.9 per cent of women and 44.9 per cent of men in the total Australian population.[108] Women are less likely to be employed, or to be employed in jobs that offer financial self sufficiency. In 1991 the overall unemployment rate for Cambodiaborn females in Australia was 44.4 per cent, more than four times the comparative rate in the total Australian population.[109] Those women who were employed tend to be over represented in lower paid occupations.[110] In 1991 the median annual income of all Cambodians born was 34.5 per cent lower than that of the total Australian population.[111] The proportion of women among the Cambodia-born with incomes of $16,000 or less was 67.9 per cent, compared to 52.6 per cent for men.
Women are less likely to have English language skills. In 1991 there was an extremely low level of language proficiency among the Cambodia-born aged over 25 years in Australia, with 61.7 per cent of people speaking English not well or not at all.[112] Women reported lower English proficiency than men.[113] Overall, nearly three quarters of those who were Cambodia born and could not speak English at all were females.[114]
One of the problems Cambodian people face in developing language skills is that the symptoms of post traumatic stress disorder can include a reduction in the ability to concentrate, remember and learn.[115] Women commonly complain that since surviving the holocaust in their country their brains are broken. There are additional hurdles for women in that their access to government language training programs can be limited by the effect of government policies, such as the failure to provide adequate child care for participants and the prioritisation of limited places in such programs for newly arrived migrants or registered long term unemployed.[116]
Women are often hampered in seeking work, training, education or emotional support by their child care responsibilities. Child care per se, let alone child care that is linguistically and culturally appropriate, is inaccessible to many of the women in Muy Ky Chhays position because of cost, hours, and location.[117] All of these issues are rendered critical by the crises in safe and affordable short and long term housing in Sydney.[118]
The decision to leave a violent partner can also threaten a womans immigration status if that is dependent on him.[119] There are provisions available if domestic violence is in issue.[120] Obstacles women in Muy Ky Chhays position might face in utilising these provisions include; a lack of information about them; a limited definition of domestic violence (which does not include controlling behaviour or financial deprivation); and a limbo period after an application in which the applicant is not entitled to income support, benefits or medicare.
Little attention to these kinds of structural issues was given in court in Chhay and, as a consequence, it is difficult to assess her overall position. Her immigration status is not mentioned. We do know that, whilst she had been receiving English tuition for a number of years, her English was not very good. In fact she had received tuition all year round because her English tutor was not able to communicate to her the need to take holidays.[121] She also needed an interpreter to communicate in court. She was unable to drive and was dependent on her husband in this regard. We are not told what occupational skills she had, or to what degree she was financially reliant on her husband, if at all. Clearly her husband felt that she was economically dependent on him because he had threatened to leave and had said that when he left she was not going to be able to feed the children.[122] This threat seems to be contradicted by the evidence which was to the effect that he had been unable to hold down a job, that he spent the familys money for necessities on alcohol, that the family had been dependent on the income from her small market business and that that business had gone into a decline since her husbands unfortunate involvement in it. Perhaps he envisioned taking the business with him, or perhaps she was unable to conduct it without him because she could not drive? We also know that she had at least two dependent children but we are not told what child care arrangements she was able to make, if any, when she needed to work.
(iii) Impediments to Using Support Services
Many women have difficulties accessing the kinds of mainstream support services which should be available to assist them in dealing with domestic violence. Women in Muy Ky Chhays position may unwittingly be in a double bind. Not only do they face the normal difficulties of access, but the additional problem that such services may be culturally inappropriate. On the other hand traditional and culturally appropriate means of dealing with domestic violence may have broken down in the translation to Australia.[123]
It is possible that before women in Muy Ky Chhays position reach the point, if they actually do ever reach this point, of contemplating the use of mainstream support services they must have reached a level of extreme desperation. There are a range of cultural values that may dictate against seeking help from outside the family for problems that occur within the family. These have been variously described as the sanctity of marriage, the shame brought on all who are part of the family system if family problems are taken outside the family,[124] the obligation of the individual to sacrifice themselves for the good of the family system,[125] the virtue of suffering and perseverance in women,[126] and nonconfrontation and withdrawal as culturally appropriate means of dealing with interpersonal stress and conflict.[127]
Furthermore, women in Muy Ky Chhays position may lack access to culturally appropriate information explaining that domestic violence is a crime in Australia, what their legal options for dealing with it are, and what support services they can enlist in that process. For example, a survey in Liverpool in 1990 found that 52 per cent of people from Southeast Asia did not know that domestic violence was a criminal offence.[128]
Womens refuges are the first port of call for many women seeking to escape domestic violence. Unfortunately established refuges have an accommodation crisis and not every woman that needs such a service can access it. Migrant or refugee women are particularly badly served.[129] Assuming that they can overcome the barriers to access described above, many women from non-English speaking backgrounds find their linguistic, religious and cultural needs not understood or appropriately met. They can also encounter the violence of racism in refuges from other refuge users and from workers. As a consequence such women can end up feeling isolated and disorientated, or further violated and victimised.[130]
At a deeper ideological level womens refuges can be informed by values strategic to variations of western feminism, values that do not always appropriately accommodate the issues facing women from Muy Ky Chhays ethnic positioning.[131] Nilda Rimonte speaks of this when she speaks of the dilemma facing the crisis worker:
In advocating the Western-feminist concepts of entitlement, choice, and empowerment, isnt the worker suggesting to the victim that she repudiate her ethnicity? And isnt the worker implying thereby that the Western-feminist values are superior to the victims native values? Recently-arrived immigrants and refugees have an even more urgent need to cling to their ethnic traditions for psychological support.[132]
On the other hand the ethnospecific services available to a woman in the position of Muy Ky Chhay are not necessarily sensitive to issues of domestic violence.[133] If this is so then she falls between the cracks, unable to access a service that adequately addresses her particular positioning as a Cambodian woman and caught in the bind of what Kimberle Crenshaw labels political intersectionality.[134] It was precisely in order to address this problem that an Indo-Chinese womens refuge was recently established in NSW.
Women in Muy Ky Chhays position can also face great impediments in using the services of the police to deal with domestic violence. Such women may not know about their legal rights or the role of the police in enforcing them.[135] They may face communication barriers caused by police ignorance of their language and cultural differences. These problems are exacerbated by the tendency of the police to underestimate the need for an interpreter when interviewing people from non- English speaking backgrounds[136] and the lack of bilingual police liaison officers who are female.[137] In addition, women from Cambodia, after their experiences in their country of origin, may legitimately fear the police as an instrument of State power.
The police do not have a good track record with most ethnic communities. Historically they also have a very poor response to the female complainant in domestic violence disputes. If a woman is both from an minority community and the complainant in a domestic violence dispute, she may find the disadvantages she faces compounded. One obvious example of this happening is where the police have used the perpetrator to interpret on behalf of the target/complainant because he speaks English and she does not. Another example is where the police fail to take appropriate action, including a failure to take any action, because of inappropriate cultural assumptions and stereotypes about the complainant or her cultural matrix. Such a woman may also face unique dilemmas in her contact with the police. For example, the police may not only engage in a sexist devaluation of her complaints, but may be overzealous and racist towards the men they do end up arresting. Fear about what will happen to their men in white controlled institutions such as court and the jail may keep such women silent.
Thus, the vast majority of women surveyed by Kien Dang and Caroline Alcorso had not called the police to deal with the violence.[138] The most common reason for not calling the police was that the woman had difficulty speaking English, which was compounded if her husband could speak English and she was afraid that he would interpret for her incorrectly.[139] The next most common reason was that the woman wanted to protect her husband. Other reasons given were that the violence was not physical and therefore was erroneously interpreted by the woman as not constituting domestic violence, that the woman did not want to injure her husbands reputation in his community, or that she did not wish to harm the mans position with his children, she feared that the police might not protect her, or she was too embarrassed to seek police protection.
A lack of culturally appropriate information, language barriers and culturally insensitive systems may also present additional hurdles to those ordinarily faced[140] by women seeking to use the court system to divorce, obtain custody and child support, lay assault charges or obtain apprehended violence orders.[141] For example, 42 out of the 52 women Kien Dang and Caroline Alcorso surveyed had not applied for an apprehended violence order. A range of reasons were proffered, the most common being that they were not aware that such orders were available.[142]
There has been much written on the issue of interpreters: the need for increased availability and use of interpreters at all levels of the legal process (but particularly at the preliminary stages),[143] the need for trained and professional interpreters,[144] the issue of confidentiality when the interpreter and the accused/complainant are both drawn from the same small community,[145] the need for interpreters who not only speak the language but understand the cultural background and community expectations of the accused/complainant, limitations in how much of the legal proceedings interpreters are actually able to translate, the need for female interpreters who are appropriately trained when dealing with issues of domestic violence or sexual assault, and finally, the need for interpreters who not only have language competence and training in the process of interpretation but also to understand the processes of law and of legal concepts.
Muy Ky Chhay and most of the witnesses that testified on her behalf did so through interpreters. One of the most striking features of much of this testimony, however, is the difficulty in communication. Many of the interpreters seem to have extremely poor English language fluency. So, for example, the English recorded in the transcript whenever an interpreter is being used is broken and grammatically incorrect, there are many passages where either the witness, or counsel, or the judge is obviously experiencing confusion about what is being asked or said, and other passages where the point being made by the witness never becomes clear. As I have pointed out above, this diminishes the credibility of the testimony of the witnesses concerned. This is reflected in the judges summing up of the evidence. He spent a great deal of time going through the police and forensic evidence and provided only a very cursory synopsis of the evidence given by the Asian witnesses.
Aside from the limitations of attempting to communicate through the medium of an interpreter, there are a range of other potential barriers to communication. Appropriate methods of eliciting information are culturally specific which may disadvantage those who are not familiar with the direct interrogatory questioning style employed in Australian courts.[146] Because of cultural differences, cues around demeanour and body language, such as eye contact,[147] may be lost or misinterpreted by the court. This becomes of particular significance if a specific culture places a high value on non-verbal communication.[148] It may also be the case that different accents may sound flat in their English delivery[149] and thus may not accurately convey the sincerity or spontaneity of the speaker.
Jai Fong Zhou is a New Zealander who was charged with attempted murder in respect of her abusive husband (who survived her attack). She raised self-defence and argued battered woman syndrome in support of that defence. She was completely acquitted.
This case raises similar, although not identical, issues to those in Muy Ky Chhay[151] in terms of the kinds of structural difficulties the accused faced, in this case as an immigrant Chinese woman, in protecting herself from her partners violence and constructing a case for self-defence in court. However, the case also raises queries about the adequacy of battered woman syndrome evidence as a tool to be used in the presentation and interpretation of the experiences of women in a similar position to Jai Fong Zhou.
In New Zealand a person can legally defend themselves or another using such force as it is reasonable to use in the circumstances as the person believes them to be.[152] Arguably this is a more lenient test for self-defence than that which is applicable in New South Wales.[153] However, in applying the different tests, the two relevant factual issues are likely to be similar the nature of his violence and her options for self protection.
For symmetry I have divided my analysis of Zhou along similar lines to those I adopted in respect of Chhay. First, I will look at how evidence of the violence the accused was defending herself against was received in court. Secondly, I will look at her alternatives to lethal self help. Thirdly, I will look at issues around her communication in court. In this three part discussion I will address credibility as an integral rather than as a discrete issue. Finally, I will analyse battered woman syndrome evidence as it was used in this case.
There was evidence before the court that Jai Fong Zhou faced severe, ongoing and escalating sexual, economic, psychological and physical violence at the hands of her husband. As in Chhay, much of this evidence was given via the testimony of the accused. Like Muy Ky Chhay, Jai Fong Zhou and her husband also had cultural constraints dictating against the public exposure of family business. Thus Jai Fong Zhou had failed to tell her close friend or her sister (with whom she was in regular contact) of the violence that was happening to her.[154] As in Chhay, the hidden nature of family violence in Jai Fong Zhous community meant that only one incident of physical violence predating the incident in respect of which she was being tried[155]
What was different about the two cases however was that the court in Zhou was nonetheless presented with compelling and graphic evidence of the accuseds husbands violence. Jai Fong Zhou had a number of advantages over Muy Ky Chhay in getting evidence of her partners physical violence before the Court. The first was that his violence, although not actually witnessed by outsiders, had left physical marks on the world, primarily broken windows, forced locks, a burnt door and scorched lino, smashed car headlights and smashed car windows. All of this damage was caused by him either burning or smashing his way into her flat, or threatening her or damaging her property until she opened the door. There were also bruises on her body three days after the incident in question which were able to be photographed.[157] The second was her extreme competence as a witness and her willingness to speak out in spite of the cultural proscriptions that may have otherwise silenced her. The third was her past willingness to enlist the services of the police, her solicitor, a doctor and her landlord in her attempts to escape him. Not only did this evidence corroborate her own story, but all of these witnesses were fluent in English, none facing the attendant credibility issues identified in Chhay.
It is obvious that Jai Fong Zhou, whilst facing similar structural obstacles to those faced by Muy Ky Chhay, demonstrated a level of empowerment in her behaviour not possessed by Muy Ky Chhay. It is not obvious if this is due to her personality, the fact that she was an immigrant as opposed to a refugee, that she was not the survivor of war trauma, that she belonged to a stronger and more resource rich community in her host country, that her cultural background provided her with a more empowered gender role than Muy Ky Chhays did, or if it was none, all, or some of these things. Finally, one of the major assets in the construction of Jai Fong Zhous defence case was that her husband survived her attack and was called as a witness. His construction of events was implausible and was contradicted in a number of significant ways by the testimony of other witnesses.[158] This, combined with her strength as a witness, meant that, unlike Chhay, the credibility issue appears as one of his, rather than her, lack.
Because Jai Fong Zhou was not so reliant on indirect corroborative evidence to establish her husbands violence, the rules of evidence in this case were less likely to exclude significant detail. Additionally, the Judge in this case took an apparently more expansive view of aspects of the hearsay rule. For example, Jai Fong Zhous brother was permitted to testify that a boarder, Chuck Gei,[159] who was living with the couple, had approached him to say that Jai Fong Zhou was in a terrible state, that she was being constantly assaulted by her husband, and that the police could not help her. According to her brother Chuck Gei appealed to him to intervene because he was an outsider and therefore could do nothing. In court, Chuck Gei was not forthcoming about this conversation.[160] In contrast to Chhay where this kind of evidence was excluded, the Judge in Zhou admitted it. He ruled that it was admissible because it was relevant to the question of what Chuck Gei may have said and the fact that he had made these comments, rather than whether what he said was true. In spite of this more liberal approach to one of the rules of evidence, the Judges construction of expertise for the purposes of the rule on opinion evidence in Zhou was restrictive. Jia Fong Zhous friend, herself Chinese, was not permitted to present evidence about Chinese culture as an explanation for Jai Fong Zhous silence about the violence she suffered[161] because she did not have any formal qualification in sociology, psychology or anthropology. This premising of formal study over lived experience is problematic. It has implications for those groups in society who may not have access to institutions of formal education and yet can be constituted as the objects of study. Experts who are not from a culture themselves can also construct cultural knowledge in a deeply skewed way.[162]
What is most striking about the evidence given in Zhou is what it reveals about the extraordinary courage and enterprise of the accused and her drive for survival. Because she was someone who strenuously attempted to surmount the structural obstacles she faced in protecting herself, her story cogently illustrates the myriad of ways in which society and the legal system fail women in her position. She was a woman who did not speak English, who had a dependent child, who had no money, who understood little of her opportunities or rights,[163] and who was in a foreign land. In spite of this she succeeded at one point in setting herself up independently. She found an apartment to rent, got in lodgers to help with the rent, met someone who was able to help her negotiate the social welfare department and sign up for a benefit, got a part-time job, and borrowed money to purchase a car. Initially she could not even visit a doctor as she could not speak English and did not know where they were. Subsequently she fell pregnant twice after being raped by her husband and was able to organise and undergo two abortions (miscarriages she asked for).
She was persistent in her efforts to divorce her husband. This was in spite of cultural proscriptions against leaving a marriage. She also persisted in her efforts in spite of the fact that they angered him and caused further violence towards her, and in spite of the obstacles she faced accessing the legal system (in terms of language and cost) and presented to her by the requirements of the law. In fact she first asked her husband for a divorce two months into the marriage and was beaten for her request. One year into the marriage she first consulted a divorce lawyer. Her problem was that she needed to separate from her husband for a period of time to be eligible to get a divorce and he would not leave her alone. He kept forcing his way into her home and residing there. Her lawyer drafted a separation agreement and she began a campaign to get him to sign it. Eventually she succeeded in getting him to sign the agreement by taking him unexpectedly to her solicitors office when he had got into her car to get her to take him somewhere else.[164] There is an added dimension to her actions. Her visitors visa had almost run out when she married her husband and he suggests at one point that that may have been one of her motivations for marrying him. We do not know her immigration status and what the implications of divorce were on this status. Thus there may have been an added element of desperation in her actions that we do not know about.
She actively attempted to exclude her husband from her life. When she first got her own apartment she did not give him the address, although he eventually tracked her down. She bought a lock for her bedroom which she got the landlord to install and she frequently attempted to lock her husband out of the flat or out of the bedroom. In spite of these efforts he was relentless in tracking her down, entering the flat and abusing her. [165] He claimed to be in the Triad gangs and used this claim to threaten her friends and family. She describes his threats as follows:
... since Ive married him Im his wife for life time. If you marry a chicken you follow the chicken. If you marry a dog you follow the dog. You are not allowed to have a divorce. If I divorce him he will kill my whole family and he said New Zealand is a small country, no matter where I go he will be able to find me. He said if I insist on divorcing him he would not allow any members of my family to be able to live peacefully in New Zealand and he often assaulted me. He said if I wanted a divorce I must wait until he does or either I die.[166]
She called the police on six separate occasions, demonstrating, given her strong cultural bias against such disclosure and the poor response she received from the police service, a strong commitment to her personal safety. The police only came three out of the six times they were called. The first time she called the police they came and she could not communicate with them. Her husband could speak English and so they talked to him instead (the perpetrator!) and he told her that the police said he could stay here. The second time the police came they talked to her husband and then hand signalled to her to pack his things. He left but came back immediately after they had gone. He told her that he had said to the police that she was unhappy because he stayed out late, the police told him wives were like that and to go away until she calmed down. He told her that the police were on his side not hers and she testified that the police talked to him like a lost brother. The third time the police came she could not communicate with the officer and so she phoned her solicitor to interpret for her. The officer removed an air rifle from the house on the instructions of her solicitor. In court the officer was not prepared to say that she was concerned about the gun because her English was so poor they could not speak. In fact she had been threatened, and was afraid her husband would kill her, with it. The officer only stayed 10 to 15 minutes in total and got her solicitor to explain to her that there was nothing more they could do because her husband was not there and they could not stay forever. Her solicitor told her that since her husband had broken her headlights the police could charge him. She said I am frightened at him, he belongs to the triads, I only wanted him to leave, I did not want to charge him or put him in prison.[167] This removal of the gun was the only evidence in the transcript of this trial of the police taking any action against him for his behaviour towards her.
Not only did this official support structure fail to protect her from her husbands violence but her private support structure, her family, also failed her. It was her sister that assisted her husband in tracking her down when she fled to a secret address.[168] Her brother came across the couple after she had been attacked and left them alone together, she with a bleeding mouth. He said that he felt depressed about what was happening but there was nothing he could do as they were married and he did not believe in divorce. He said to Chinese a husband hitting the wife is a normal thing[169] and that he could not stop Tam hitting her because he believed she was his wife and therefore he had no right to interfere.
After the incident she spent some time in a womens refuge where she took out non-molestation orders and also obtained interim custody of her daughter.
Given the structural inequality she faced, and her cultural matrix, this was a woman of extraordinary courage and enterprise. It would not be realistic or appropriate to expect many people in her position to do as much.
What is also clear from this is that, in spite of her best efforts to escape her husband, he always found her. Nobody seemed able to protect her from him.Furthermore, his violence continued up to the day of her trial. In fact his survival may have helped her in court but it was a mixed blessing. There was frightening evidence to the effect that his reign of terror continued in the interval between her defensive attack on him and her trial. He repeatedly approached her in the street, at the shelter where she was staying, at a night club, and at her sisters house. On these occasions he physically attacked her and threatened her, her family and her friends. He appropriated her car or forced her to drive places, assaulting her when she refused. In one of these incidents he hijacked her car and drove her to Wellington. During this trip, which spanned several days, she refused to leave and slept in the car. She had to submit to this continuing contact in spite of the fact that she had nonmolestation orders out against him. He was also demanding $10,000 from her (she had given him around $800). In these circumstances it seems ironic that she was being charged with a criminal offence in respect of her defence of herself from him.
In her testimony Jai Fong Zhou presented her own self-defence case credibly and eloquently. Her position was that she had been terrified for some period of time that her husband would kill her and that, over a period of time, she had unsuccessfully exhausted every avenue in her attempts to escape his extreme violence.[170] On the night in question he refused to leave her house, hit her on the back of the neck several times with a meat cleaver, tied her up, forcibly raped her, told her that she would never escape him and said that he would kill her, her relatives and their child. A number of these features of his violence went beyond what had happened previously.[171] She tricked him into swallowing a sleeping tablet and then tied him up. When he woke up, began struggling free and further threatening her, she attempted to kill him with the meat cleaver he had earlier used against her. She testified that she believed that he would otherwise kill her with it. In cross examination the prosecution said to her, you did not leave the room did you instead you chopped him? She answered with a rhetorical question, Where can I go to or where can I escape?[172]
What is striking about her testimony, and in keeping with her help-seeking behaviour throughout her experience of domestic terrorism, is her competence and determination to be heard. At a disadvantage because she was communicating through an interpreter, she nonetheless refused to be intimidated or confused by the fairly aggressive cross-examination she was subjected to. For example, in the following extract the prosecution tries to get her to agree that her sister was available to help her if she was ever in trouble.
Q: But you went to your sisters place because you knew she would help you didnt you?
A: Because I had nowhere else to go, even if she does not want to help me I can only go to see her
Q: So would you agree that if you were in a spot of bother, if you had a problem you could go to your sister and she would help you?
A: No
Q: Are you your sisters younger sister?
A: Yes
Q: For that reason would she help you if you had a problem?
A: On some matters she cannot even help herself, how can she help me?
Q: ... Were you not able to rely on your sister when you were in a difficult situation?
A: No
Q: Well do you accept that on this occasion you did rely on your sister when you were in a difficult situation?
A: When Tam assaulted me could they help me? When I wanted Tam to leave could they help me? The police could not help me. Can they?[173]
In keeping with this is her tendency to give narratives rather than answer yes or no to questions, particularly where a yes or no answer without context would be misleading. This results in the Bench admonishing her to pay attention and just answer the questions, and the Crown suggesting that her answers are rehearsed rather than spontaneous, a suggestion which is summarised by the judge in the following terms, she had a marked reluctance to give a straight answer to simple questions...on many occasions her response was more rehearsed than candid.[174]
At another point in his summing up, the Judge provides some counter to these suggestions when he warns the jury that,
You do not have the same advantage in terms of assessing demeanour when you are dealing with people while answers are being delivered via an interpreter. Nor, of course, do you have the same familiarity with body language in connection with someone very recently immersed in a different culture.[175]
As I have presented the information gleaned from the transcripts of her trial, Jai Fong Zhou had a strong case for self-defence without more. Nonetheless, the defence went on to call a psychologist who testified that she suffered from the battered woman syndrome. I would argue that the use of syndrome evidence was not only unnecessary but also departed from the facts of her case and potentially weakened her legal claim to self-defence. It did so by erasing her agency, her rationality and her context, including the circumstances she faced because of her positioning.
Before I critique the use of battered woman syndrome in this case, I want to acknowledge that there is much that is sensitive and informed about the testimony of the defence psychologist. Near the beginning of her testimony she describes the structural,[176] and psychological[178] impediments battered women face in leaving violent relationships or seeking help.[179] She does not minimise the violence of the perpetrator but explicitly acknowledges that such women are the survivors of terrorist action. Most importantly she emphasises that women living with violence become experts on their situation. She says that such women rarely retaliate but when they do it is because they somehow perceived the situation as more dangerous than other beatings.
Unfortunately the expert then goes on to largely disregard the structural obstacles she has described by devoting the most compelling portion of her testimony to describing the accuseds learned helplessness, her belief that she was powerless to escape her husbands violence and her inability to think clearly or rationally under stress. There is a dissonance between the facts as they emerge in the transcript and this account. I find it difficult to imagine what else the accused could have done in actuality to escape her partners violence.
Julie Stubbs and I have criticised the fact that the battered woman syndrome has a tendency to rewrite the life-threatening situations that women find themselves in as products of the delusional mental state of the women concerned.[180] This point is very clearly illustrated by the Judges summing up in Zhou. Jai Fong Zhou testified that, when her husband was in her life, she was being beaten two or three times a week and raped repeatedly. Her husband came and went when he pleased and his beatings were escalating in severity in the six months leading up to the incident. He was violent to their child and had threatened to kill her, Jai Fong Zhou and her family. The Judge, in commenting on the language used by defence counsel to summarise her experiences, said:
It is important, I suppose, in dealing with incidents such as this not to confuse an objective assessment of what happened with the alleged victims assessment of what happened, and it may be that in using the term the violent reign of terror [defence counsel] was seeking to convey her perception of it rather than suggesting that incidents such as this could fairly be described as the violent reign of terror.[181]
It has been suggested that women rarely succeed in arguing self-defence because legal doctrines and notions of what is reasonable do not encompass the realities of womens lives.[182] Arguably instead of challenging legal doctrine and extending womens claims to rationality, the battered woman syndrome explains why battered women need to be exempted from the need to meet standards of rationality for the purposes of self-defence.[183] Accordingly, the expert in Zhou did not testify that Jai Fong Zhou reasonably perceived a need to take lethal defensive action, but rather that her ability to be rational in her perceptions and reactions was corroded by her condition of learned helplessness. In fact, the suggestion emerges in crossexamination that one cannot be a battered woman, at least during the experience of battering, and be rational:
Q: So if when you are under stress you had the ability to think straight, to plan and to make certain decisions that wouldnt fit in with a battered person normally would it?
A: No not if you were actually being beaten at the time.
Q: Or even when you were in the circumstances of the contemplation of a beating, when you thought it was about to occur, you would not normally be able to think rationally?
A: Yeah you wouldnt make the wisest possible decisions.[184]
Another example of the failure of the syndrome evidence to extend notions of reasonableness is provided in the Judges summing up. In discussing the need for the defensive force to be reasonable, he provides an example of unreasonable force as someone coming at you with a fist and you taking a shotgun to blow their head off.[185] This is a transparently sexist example. Given disparities in size, strength and physical aggression, a women would rarely reasonably engage a dangerous man in a fist fight in order to defend herself.
Battered woman syndrome evidence, by definition, provides no room for acknowledging the agency of the women concerned and the myriad of help seeking behaviours battered women typically engage in. Women who cannot easily construct themselves as passive and dependent victims will miss out on convincing the court that they suffer from the syndrome. Worse still, if syndrome evidence is taken to define what it means to be a battered woman, active and resourceful women may not be taken seriously in their claim that they were subjected to domestic violence. Worst of all, if syndrome evidence is the only way in which womens self-defence claims are accommodated, active and resourceful women may miss out on successfully arguing self-defence.[186] These are concerns both at a policy level for women in general, and in terms of how the evidentiary and legal issues get defined in any particular case. These concerns are illustrated in Zhou. In this case the Crown argued that the accuseds help seeking behaviours and her independence contradicted the fact, not only that she suffered from battered woman syndrome, but that she was a battered woman:
Q: The more that a person shows their independence and ability to act by themselves and to make decisions would point to someone who is less likely to be a battered person, would you agree?
A: Its quite in general I would say yes but it is quite specific, the fear that can be felt in the abusive situation because it happens to women in professional classes, women with money whom you would imagine would be able to be independent.
Q: The person who is actually doing things independently, making important decisions for him or herself would you agree they are less likely to be battered?
A: Probably all other things being equal they would be less likely to be battered or to put up with battering.[187]
As a corollary of this point, the notion of learned helplessness is conceptually illogical when used in the context of self-defence. Learned helplessness does not obviously fit with the accuseds response in killing her partner. In Zhou this point was seized upon by the Crown.[188] The defence expert attempted to get around this problem by theorising that learned helplessness only existed up to a particular stress level. Once that stress level was exceeded, the woman who was the target of violence snapped out of helplessness and retaliated. The problem with the experts solution to the conceptual conundrum presented here is that it renders the battered woman syndrome evidence largely irrelevant to the issue of self-defence. All battered woman syndrome evidence explains is the accuseds behaviour up to, but not including, her defensive action. In other words, it explains why she did not or could not successfully leave the violent relationship, an issue which is of limited evidential relevance, and in theory no legal relevance, to self-defence.
The most significant problem with the experts testimony in Zhou for our purposes, however, is the fact that she erases the accuseds positioning as a Chinese immigrant woman. Many of the structural obstacles that the accused faced, which might explain her perception that she had no option for self-protection other than self-help, are not developed by the expert.
When these factors are mentioned they are seen as evidence of her status as a battered woman. For example, the expert says that:
She also to some extent could be said to have few resources which is characteristic of women who get into these relationships and who remain in that she did not speak English, she had no money, she believed it was better for her child to have a father than not, at least initially.[189]
Thus, circumstances which are specific to Jai Fong Zhous positioning as an immigrant women from a non-English speaking background are used in constructing a gender stereotype. Instead of these constraints being recognised as a part of her structural context that, in turn, illustrate her strength of character in the face of adversity, they become further evidence of her general personal deficiency.
The expert in fact makes it clear that she is erasing culture, presenting the battered woman syndrome as a trans-cultural phenomenon. She says that patterns of abuse are cross-cultural and that learned helplessness has something to do with the way the human brain and body operates and in all cultures peoples brains and bodies operate in the same way.[190] Her only support for these comments is a reference to a review of research conducted in Canada, Australia, England, New Zealand and Great Britain.[191] All countries dominated by western Anglo-Saxon cultural values! Julie Stubbs and I have elsewhere raised the possibility that response patterns by the targets of domestic violence may not be the same in every culture.[192] For example, there is some suggestion that Aboriginal women are less likely to tolerate physical abuse and more likely to fight back.
I have analysed two cases involving Pacific-Asian women who killed their abusive husbands and argued self-defence in response to a charge of murder or attempted murder. I have highlighted examples of the manner in which race and gender might have converged in each case, both to make self-defence a viable option for the accused on the facts, and yet to impede her presentation of that defence in court. In other words, race and gender in each case converged to make the accuseds circumstances more frightening and to narrow her options for dealing with that danger by peaceful means. Because the court in each case failed to examine the effect that this convergence had on the accuseds circumstances, and her presentation of her defence at trial, it failed to realistically assess her self-defence claim. This latter point is particularly cogent in relation to Muy Ky Chhay where her intersectional positioning may have diminished her credibility and prevented crucial evidence from actually making it to the courtroom. The case of Jai Fong Zhou provides an interesting contrast because such evidence did make it to court. In this case it is clear, however, that the true significance of this evidence for the purpose of the accuseds self-defence case is properly understood only when it is explicitly understood in light of her unique positioning. I have used Zhou, finally, to argue that in this context, as in others, battered woman syndrome evidence does not contextualise the accused or render explicit her unique positioning. Whilst it may produce positive results in practise for an individual woman, in fact it furthers, arguably compounds, the erasure of her story.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1997/25.html