State v. Riker

Utter, J.

(dissenting) — The majority holds the battered woman syndrome testimony was not admissible in this case because it failed to meet the foundational requirements necessary to support Riker’s defense of duress. I disagree. The majority imposes on the admissibility of the battered woman syndrome a requirement that is legally unwarranted on this record.

*371 The majority’s rationale for excluding the testimony is that [Heretofore, the syndrome has been admitted only in cases in which the batterer and the victim have developed a strong relationship, usually over a period of years. . . . The context in which the defense is raised here is entirely different.

Majority, at 360.

The fact the evidence would have been used in a different factual context is without legal consequence. What is critical is that the proposed use of the battered woman syndrome in this case would have been identical to the use we have held proper in other cases: to permit the jury to evaluate whether the defendant acted under a reasonable apprehension of harm given the effect of past abuse on that person’s perception of harm. Compare the duress statute RCW 9A.16.060(1), with the self-defense statute RCW 9A.16.050(1), both of which require the jury to evaluate the defendant’s apprehension of harm from the reasonable point of view of the defendant, knowing what the defendant knows.

Our case law clearly establishes that the chief function of battering testimony is to inform the jury about how severe abuse operates to alter the victim’s state of mind in general, and the perception of danger in particular. See State v. Allery, 101 Wn.2d 591, 597 , 682 P.2d 312 (1984); State v. Ciskie, 110 Wn.2d 263, 271-76 , 751 P.2d 1165 (1988); State v. Janes, 121 Wn.2d 220, 236 , 850 P.2d 495 (1993). The rationale underlying its admissibility is the consensus in the relevant scientific community that severe abuse distorts perceptions of harm and its immediacy in ways that are not readily understandable, and may sometimes even be counterintuitive. See Ciskie, at 271-74. See also Janes, at 236. That is why expert testimony is helpful to the jury: it permits the jury to make an informed evaluation of the factual question whether the defendant indeed acted under the reasonable apprehension of harm given the effects of the abuse experienced. See Allery, 101 Wn.2d at 597 -98 and articles cited therein.

The testimony sought to be introduced here was offered to explain to the jury the concepts of learned helplessness *372 and how a battered person assesses danger. Report of Proceedings, at 536-43. These concepts have already been accepted as meeting the Frye standard in a variety of contexts. Frye v. United States, 293 F. 1013, 1014 , 34 A.L.R. 145 (D.C. Cir. 1923). See Allery, 101 Wn.2d at 594-98 (expert testimony on battering syndrome admissible to help the jury evaluate whether the defendant shot her husband believing he posed a danger of imminent harm, taking into account all the circumstances known to her at the time she acted); Ciskie, 110 Wn.2d at 272-76 (expert testimony on battering syndrome admissible to help the jury evaluate why a victim of rape would not report the abuse to the police); Janes, 121 Wn.2d at 232-36 (expert testimony on battering admissible to help the jury evaluate whether a child shot his stepfather in self-defense).

Thus the fact that Riker and Burke were never involved in a battering relationship or an intimate relationship of any kind is immaterial. If a person’s perceptions have become distorted from the effects of abuse, it is not necessarily relevant that the person who triggers the response in a given instance did not commit the abusive acts in the past. As the expert explained in the offer of proof, the effects of abuse on the human psyche cannot be so neatly compartmentalized. See Janes, 121 Wn.2d at 232-36. She testified as follows:

Q: You also indicated fear. Would a battered woman assess the danger she is in differently than, say, you or I would?

A: Yes, quite clearly.

Q: Is that an idea that’s scientifically accepted?

A: Yes.

Q: Would a battered woman be more susceptible to a threat than a normal person?

A: I believe so, yes.

Q: Why is that?

A: Because of her history and because of the way she assesses fear and intimidation and the fact that she generally has been abused.

Q: Can you separate a person’s past relationships out from how they would assess fear in a situation that presented itself now?

*373 A: Well, no, you cannot.

Q: Why is that?

A: Well, because it’s impossible to do. I know of no scientific way that you can separate those.

Q: Is there any doubt in your mind that the person’s past relationships would play a part in how they assess present danger they would be in?

A: There is no doubt in my mind that past plays a role to the present. Fear is cumulative.

Q: What do you mean by that?

A: I mean that it adds on. One fearful or difficult situation makes those in the future more difficult and apprehensive. It’s cumulative in that sense. It’s add on.

Q: Do you have an opinion as to whether Debbie Riker is a battered woman?

A: I do have an opinion.

Q: How confident are you in that opinion?

A: I am fairly confident. Quite confident. I am confident.

Q: What is that opinion?

A: That indeed she is a battered woman.

Q: Is it your opinion that she was a battered woman in June-July of 1987?

A: Yes, it certainly is.

Q: Tell me briefly why you reached that conclusion?

A: Because of the history that she provided me and because of the situation she found herself in May, June and July of ’87.

Q: How does Miss Riker’s status as a battered woman relate to her assessment of her own danger in this particular case?

A: Well, I believe that she is not able to clearly assess her own danger and protect herself and her children to the extent that I think would be reasonable and normal.

Q: And how does her status as a battered woman relate to Debbie’s inaction and sort of removing herself from this situation?

A: Well, I believe it relates because she saw herself as having no options or exit. That she was simply in a situation and was unable to make a decision to get out.

Q: And when you offered that opinion, is that because of the things that Rupert Burke said about himself and asked Debbie to do?

A: Partially, yes.

Q: And what’s the other half of why you reached that conclusion?

A: It’s simply she was unable to see another way out of the situation. It doesn’t mean she liked doing what she was doing, hut she saw no alternative and that’s part of the learned helplessness.

*374 Q: And how does [sic] her past relationships with other people play into that situation?

A: Well, she has been very intimidated and very abused and very scared. Her relationship with her stepfather in particular begin [sic] to occur, interestingly enough, when she got good grades, when she did well in school. So her whole attitude toward authority was eroded very early in her life.

Q: Is there any way you can make an assessment as to whether Debbie Riker is a battered woman based only on her relationship with Rupert Burke?

A: No. I think you can’t separate out that particular relationship from all the other ones.

Q: Is it your opinion that Debbie Riker was actually fearful for her life when she did these acts?

A: She indicated to me she was and I believe she was fearful for her life. Particularly her sister’s life.

(Italics mine.) Report of Proceedings, at 537-43.

Although the jury heard some evidence that Riker had been abused in the past, it was denied the critical information made in the offer of proof: the relevance of that past history to her subsequent perceptions of danger and her susceptibility to threats of harm.

The majority’s conclusion the evidence should be excluded under the Frye test is premised on an unduly narrow view of the evidentiary function of "battered woman syndrome”. As the majority acknowledges, battered woman syndrome is a subset of post-traumatic stress disorder, which is defined as "the development of characteristic symptoms following a psychologically distressing event that is outside the range of usual human experience.” American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders § 309-89 (3d rev. ed. 1987). See State v. Ciskie, supra at 271-72 and citations therein; see also Report of Proceedings (Offer of Proof), at 531. The identity of the abuser is not necessarily germane to the development of this condition.

The majority effectively treats the circumstances in which the battering syndrome evidence has been introduced (the context of a battering relationship) as a general procedural requirement for its admission. This confusion leads the majority to conclude that a proper foundation was not established here, when in fact it was.

*375 "We have previously recognized that "[rjesearchers studying battered women agree that they share the personality traits characteristic of women suffering from post-traumatic stress disorder”. (Italics mine. Citations omitted.) Ciskie, 110 Wn.2d at 271 . Although typically used to explain why a woman remains in an abusive relationship, battered woman syndrome describes a psychological condition produced when a person is repeatedly subjected to severe abuse. See Ciskie, at 271-74.

The expert in this case testified that Riker qualifies as a battered woman; that a battered woman would perceive danger differently than would an ordinary person; and that this notion is accepted in the relevant scientific community. I cannot understand what purpose would be served by requiring more in the way of foundation than this.

In sum, the trial court should have admitted the expert testimony because: (1) the witness qualified as an expert; (2) the opinion was based on an explanatory theory culled from studies which are generally accepted in the scientific community; and (3) the testimony would have been helpful to the trier of fact. See State v. Allery, supra at 596; ER 702; see also Frye v. United States, 293 F. 1013, 1014 , 34 A.L.R. 145 (D.C. Cir. 1923). Here, the witness was an expert; the explanatory theory about the effects of severe abuse on perceptions of harm is generally accepted in the scientific community, as the expert testified; and the information would have assisted the trier of fact in evaluating Riker’s contention that she was afraid to resist Burke.

I would reverse the trial court, and remand for a new trial consistent with the views expressed above.

Johnson, J., concurs with Utter, J.

Reconsideration denied May 9, 1994.