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State v. Kelly

Decided: July 24, 1984.


On certification to the Superior Court, Appellate Division

For reversal -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Pollock, O'Hern and Garibaldi. Concurring in part and dissenting in part -- Justice Handler. The opinion of the Court was delivered by Wilentz, C.J. Handler, J., concurring in part and dissenting in part.


The central issue before us is whether expert testimony about the battered-woman's syndrome is admissible to help establish a claim of self-defense in a homicide case. The question is one of first impression in this state. We hold, based on the limited record before us (the State not having had a full opportunity to prove the contrary), that the battered-woman's syndrome is an appropriate subject for expert testimony; that the experts' conclusions, despite the relative newness of the field, are sufficiently reliable under New Jersey's standards for scientific testimony; and that defendant's expert was sufficiently qualified. Accordingly, we reverse and remand for a new trial. If on retrial after a full examination of these issues the evidence continues to support these conclusions, the expert's testimony on the battered-woman's syndrome shall be admitted as relevant to the honesty and reasonableness of defendant's belief that deadly force was necessary to protect her against death or serious bodily harm.


On May 24, 1980, defendant, Gladys Kelly, stabbed her husband, Ernest, with a pair of scissors. He died shortly thereafter at a nearby hospital. The couple had been married

for seven years, during which time Ernest had periodically attacked Gladys. According to Ms. Kelly, he assaulted her that afternoon, and she stabbed him in self-defense, fearing that he would kill her if she did not act.

Ms. Kelly was indicted for murder. At trial, she did not deny stabbing her husband, but asserted that her action was in self-defense. To establish the requisite state of mind for her self-defense claim, Ms. Kelly called Dr. Lois Veronen as an expert witness to testify about the battered-woman's syndrome. After hearing a lengthy voir dire examination of Dr. Veronen, the trial court ruled that expert testimony concerning the syndrome was inadmissible on the self-defense issue under State v. Bess, 53 N.J. 10 (1968). Apparently the court believed that the sole purpose of this testimony was to explain and justify defendant's perception of the danger rather than to show the objective reasonableness of that perception.

Ms. Kelly was convicted of reckless manslaughter. In an unreported decision relying in part on Bess, the Appellate Division affirmed the conviction. We granted certification, 91 N.J. 539 (1983), and now reverse.

Defendant raises six issues on appeal. She claims: (1) that the trial court erred in excluding expert testimony on the battered-woman's syndrome; (2) that the trial court's charge on provocation was erroneous; (3) that the trial court erred in excluding testimony that Mr. Kelly had sexually assaulted one of Ms. Kelly's daughters; (4) that improper prosecutorial conduct caused her to be denied a fair trial; (5) that the trial court erred in admitting testimony about her earlier conspiracy conviction; and (6) that her sentence was excessive.


The Kellys had a stormy marriage. Some of the details of their relationship, especially the stabbing, are disputed. The following is Ms. Kelly's version of what happened -- a version that the jury could have accepted and, if they had, a version

that would make the proffered expert testimony not only relevant, but critical.

The day after the marriage, Mr. Kelly got drunk and knocked Ms. Kelly down. Although a period of calm followed the initial attack, the next seven years were accompanied by periodic and frequent beatings, sometimes as often as once a week. During the attacks, which generally occurred when Mr. Kelly was drunk, he threatened to kill Ms. Kelly and to cut off parts of her body if she tried to leave him. Mr. Kelly often moved out of the house after an attack, later returning with a promise that he would change his ways. Until the day of the homicide, only one of the attacks had taken place in public.

The day before the stabbing, Gladys and Ernest went shopping. They did not have enough money to buy food for the entire week, so Ernest said he would give his wife more money the next day.

The following morning he left for work. Ms. Kelly next saw her husband late that afternoon at a friend's house. She had gone there with her daughter, Annette, to ask Ernest for money to buy food. He told her to wait until they got home, and shortly thereafter the Kellys left. After walking past several houses, Mr. Kelly, who was drunk, angrily asked "What the hell did you come around here for?" He then grabbed the collar of her dress, and the two fell to the ground. He choked her by pushing his fingers against her throat, punched or hit her face, and bit her leg.

A crowd gathered on the street. Two men from the crowd separated them, just as Gladys felt that she was "passing out" from being choked. Fearing that Annette had been pushed around in the crowd, Gladys then left to look for her. Upon finding Annette, defendant noticed that Annette had defendant's pocketbook. Gladys had dropped it during the fight. Annette had retrieved it and gave her mother the pocketbook.

After finding her daughter, Ms. Kelly then observed Mr. Kelly running toward her with his hands raised. Within seconds

he was right next to her. Unsure of whether he had armed himself while she was looking for their daughter, and thinking that he had come back to kill her, she grabbed a pair of scissors from her pocketbook. She tried to scare him away, but instead stabbed him.*fn1


The central question in this case is whether the trial court erred in its exclusion of expert testimony on the battered-woman's syndrome. That testimony was intended to explain defendant's state of mind and bolster her claim of self-defense. We shall first examine the nature of the battered-woman's syndrome and then consider the expert testimony proffered in this case and its relevancy.

In the past decade social scientists and the legal community began to examine the forces that generate and perpetuate wife beating and violence in the family.*fn2 What has been revealed is

that the problem affects many more people than had been thought and that the victims of the violence are not only the battered family members (almost always either the wife or the children). There are also many other strangers to the family who feel the devastating impact, often in the form of violence, of the psychological damage suffered by the victims.

Due to the high incidence of unreported abuse (the FBI and other law enforcement experts believe that wife abuse is the most unreported crime in the United States), estimates vary of the number of American women who are beaten regularly by their husband, boyfriend, or the dominant male figure in their lives. One recent estimate puts the number of women beaten yearly at over one million. See California Advisory Comm'n on Family Law, Domestic Violence app. F at 119 (1st report 1978). The state police statistics show more than 18,000 reported cases of domestic violence in New Jersey during the first nine months of 1983, in 83% of which the victim was female. It is clear that the American home, once assumed to be the cornerstone of our society, is often a violent place.*fn3

While common law notions that assigned an inferior status to women, and to wives in particular, no longer represent the state

of the law as reflected in statutes and cases, many commentators assert that a bias against battered women still exists, institutionalized in the attitudes of law enforcement agencies unwilling to pursue or uninterested in pursuing wife beating cases.*fn4 See Comment, The Battered Wife's Dilemma: Kill or be Killed, 32 Hastings L.J., 895, 897-911 (1981).

Another problem is the currency enjoyed by stereotypes and myths concerning the characteristics of battered women and their reasons for staying in battering relationships. Some popular misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their beatings, that they purposely provoke their husbands into violent behavior, and, most critically, as we shall soon see, that women who remain in battering relationships are free to leave their abusers at any time. See L. Walker, The Battered Woman at 19-31 (1979).

As these cases so tragically suggest, not only do many women suffer physical abuse at the hands of their mates, but a significant number of women kill (or are killed by) their husbands. In 1978, murders between husband and wife or girlfriend and boyfriend constituted 13% of all murders committed in the United States. Undoubtedly some of these arose from battering incidents. Federal Bureau of Investigation, Crime in the United States 1978 (1978). Men were the victims in 48% of these killings. Id.

As the problem of battered women has begun to receive more attention, sociologists and psychologists have begun to focus on the effects a sustained pattern of physical and psychological

abuse can have on a woman. The effects of such abuse are what some scientific observers have termed "the battered-woman's syndrome," a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives. Dr. Lenore Walker, a prominent writer on the battered-woman's syndrome, defines the battered woman as one

who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. [ L. Walker, supra, at xv].

According to Dr. Walker, relationships characterized by physical abuse tend to develop battering cycles. Violent behavior directed at the woman occurs in three distinct and repetitive stages that vary both in duration and intensity depending on the individuals involved. L. Walker, supra, at 55-70.

Phase one of the battering cycle is referred to as the "tension-building stage," during which the battering male engages in minor battering incidents and verbal abuse while the woman, beset by fear and tension, attempts to be as placating and passive as possible in order to stave off more serious violence. Id. at 56-59.

Phase two of the battering cycle is the "acute battering incident." At some point during phase one, the tension between the battered woman and the batterer becomes intolerable and more serious violence inevitable. The triggering event that initiates phase two is most often an internal or external event in the life of the battering male, but provocation for more severe violence is sometimes provided by the woman who can no longer tolerate or control her phase-one anger and anxiety. Id. at 59-65.

Phase three of the battering cycle is characterized by extreme contrition and loving behavior on the part of the battering

male. During this period the man will often mix his pleas for forgiveness and protestations of devotion with promises to seek professional help, to stop drinking,*fn5 and to refrain from further violence. For some couples, this period of relative calm may last as long as several months, but in a battering relationship the affection and contrition of the man will eventually fade and phase one of the cycle will start anew. Id. at 65-70.

The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers. The loving behavior demonstrated by the batterer during phase three reinforces whatever hopes these women might have for their mate's reform and keeps them bound to the relationship. R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977).

Some women may even perceive the battering cycle as normal, especially if they grew up in a violent household. Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); D. Martin, Battered Wives, 60 (1981). Or they may simply not wish to acknowledge the reality of their situation. T. Davidson, Conjugal Crime, at 50 (1978) ("The middle-class battered wife's response to her situation tends to be withdrawal, silence and denial . . .").

Other women, however, become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation. There is a tendency in battered women to believe in the omnipotence

or strength of their battering husbands and thus to feel that any attempt to resist them is hopeless. L. Walker, supra, at 75.

In addition to these psychological impacts, external social and economic factors often make it difficult for some women to extricate themselves from battering relationships. A woman without independent financial resources who wishes to leave her husband often finds it difficult to do so because of a lack of material and social resources.

Even with the progress of the last decade, women typically make less money and hold less prestigious jobs than men, and are more responsible for child care. Thus, in a violent confrontation where the first reaction might be to flee, women realize soon that there may be no place to go. Moreover, the stigma that attaches to a woman who leaves the family unit without her children undoubtedly acts as a further deterrent to moving out.

In addition, battered women, when they want to leave the relationship, are typically unwilling to reach out and confide in their friends, family, or the police, either out of shame and humiliation, fear of reprisal by their husband, or the feeling they will not be believed.

Dr. Walker and other commentators have identified several common personality traits of the battered woman: low self-esteem, traditional beliefs about the home, the family, and the female sex role, tremendous feelings of guilt that their marriages are failing, and the tendency to accept responsibility for the batterer's actions. L. Walker, supra, at 35-36.

Finally, battered women are often hesitant to leave a battering relationship because, in addition to their hope of reform on the part of their spouse, they harbor a deep concern about the possible response leaving might provoke in their mates. They literally become trapped by their own fear. Case histories are replete with instances in which a battered wife left her husband

only to have him pursue her and subject her to an even more brutal attack. D. Martin, supra, at 76-79.

The combination of all these symptoms -- resulting from sustained psychological and physical trauma compounded by aggravating social and economic factors -- constitutes the battered-woman's syndrome. Only by understanding these unique pressures that force battered women to remain with their mates, despite their long-standing and reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman's state of mind be accurately and fairly understood.

The voir dire testimony of Dr. Veronen, sought to be introduced by defendant Gladys Kelly, conformed essentially to this outline of the battered-woman's syndrome. Dr. Vernonen, after establishing her credentials, described in general terms the component parts of the battered-woman's syndrome and its effects on a woman's physical and mental health. The witness then documented, based on her own considerable experience in counseling, treating, and studying battered women, and her familiarity with the work of others in the field, the feelings of anxiety, self-blame, isolation, and, above all, fear that plagues these women and leaves them prey to a psychological paralysis that hinders their ability to break free or seek help.

Dr. Veronen stated that the problems of battered women are aggravated by a lack of understanding among the general public concerning both the prevalence of violence against women and the nature of battering relationships. She cited several myths concerning battered women that enjoy popular acceptance -- primarily that such women are masochistic and enjoy the abuse they receive and that they are free to leave their husbands but choose not to.

Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research. These tests and their methodology, including their interpretation, are, according to Dr. Veronen, widely

accepted by clinical psychologists. Applying this methodology to defendant (who was subjected to all of the tests, including a five-hour interview), Dr. Veronen concluded that defendant was a battered woman and subject to the battered-woman's syndrome.

In addition, Dr. Veronen was prepared to testify as to how, as a battered woman, Gladys Kelly perceived her situation at the time of the stabbing, and why, in her opinion, defendant did not leave her ...

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