Asking the Woman Question: Should the “Tampon Tax” be Exempted?

Image by: The Kathmandu Post

SHARAD PRASAD KOIRALA*

1. Introduction

Nepal currently levies 13% Value Added Tax (VAT) on sanitary napkins and other similar feminine articles (collectively called “tampon tax”) under the category of luxury goods.¹ There exists a 15% import duty on sanitary napkins, while the import duty on essential raw materials for production of sanitary napkins like cotton and pinewood pulp aerate is at 5% for domestic producers of sanitary napkins.² The result of higher import duties and VAT is an increase in the market price of menstrual products and thus, affordability becomes a bigger issue than availability. It has been observed that due to such affordability-availability issues, a large percentage of menstruating Nepalese women use unhygienic alternatives to sanitary napkins,³ which adds to the unhygienic menstrual practices (taboos) in Nepal. Additionally, the unjustified tampon tax adds to the legal, social, and economic inferiority of women in the country.⁴

Period poverty is an important area of concern in the Nepalese context. Be it the affordability of sanitary products at the individual and family level, or the accessibility to sanitary products, toilets, hand washing facilities along with menstrual hygiene education at home, schools, or workplaces, women during their menstrual days face great challenges. Further, menstrual issues have been one of the main reasons for school absenteeism among female students in Nepal.⁵ There have been many efforts by various organisations to address this issue of “period poverty” and school absenteeism by ensuring free accessibility to sanitary napkins. The government allocated NPR 1.8 Billion (approximately USD 16 Million) in FY 2076-2077, for the free distribution of sanitary napkins in government-aided schools⁶ but, there were a lot of shortcomings in its application.⁷ Therefore, a potential solution that the government has largely ignored, could be a simple change in the legislation by removing such sanitary napkins from the category of luxury goods, which, however slightly, would lessen the burden on the consumers.

2. Asking the Woman Question

Questioning is a means to “valid knowing”.⁸ However, historically, feminist questions on taxation had largely remained ignored.⁹ Women’s historic absence from legislative bodies has paved the way to the gender-biased tax system that we see today.¹⁰ While most of the taxation laws are gender-neutral, what can be seen is the presence of “gender blindness” because the reality that is present is that, when it comes to tax exemptions in necessary goods, gender has a centre-stage but has been ignored.¹¹ For example, in some states of the US, one can observe that tax exemption was provided on non-essential goods but not on menstrual goods.¹² Such “red tax” has been read with a much broader concept of “pink tax”, where it has been observed that feminine products were taxed more than their male equivalents.¹³ Only by asking the woman question can justifications and rationalisation be demanded and the discrimination and disabilities caused by such taxation, be removed.¹⁴ The woman question(s) while addressing the issue of suffrage were; why women should not vote and why should women vote.¹⁵ On similar lines, the questions this article addresses are; is tampon tax discriminatory, thus violating the constitution and, if there is any justification for such discriminatory tampon tax in Nepal. The objective of asking the woman question is to identify the gender implication of the laws that apparently seem gender-neutral or objective. In the legal field, asking the woman question means to examine how the law fails to take into account the experiences and values that are more typical of women than of men.¹⁶ Similarly, there also exists the critical tax theory, which asks why tax laws are the way they are and their impact on divisions of society like race, colour, sex, gender, etc.,¹⁷ which has been addressed below.

3. Fundamental Right and Human Right Violation

3.1. Violation of International Human Rights

The tax hurdle on the path to menstrual hygiene violates the AAAQ framework i.e. availability, accessibility, acceptability, and quality framework of the International Convention on Economic, Social and Cultural Rights (ICESCR).¹⁸ Furthermore, such discriminatory taxation violates Article 12 and Article 14 (2) (h) of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).¹⁹ While Nepal has ratified these international conventions, it has largely failed in its application.²⁰ Tampon taxation is another such instance of violation of the aforementioned international conventions.

3.2. Is the Tampon Tax Discriminatory?

(While the tampon tax might violate many provisions of the constitution, the article is only concerned with such taxation being discriminatory.)

The European Court of Human Rights (ECtHR) has recognised discriminatory tax treatment on the basis of sex. For instance, in the case of Van Raatle v. the Netherlands,²¹ the ECtHR found it to be discriminatory to exempt unmarried and childless women above 45 years of age from taxation (as under the General Childcare Benefits Act) without such exemption being provided to men who fulfil the same criteria. Similarly, the court has found it discriminatory to provide Widow’s Bereavement Allowance (tax benefit) to widows but not to widowers, as such tax benefit lacked a legitimate aim.²² Similarly, in lack of legitimate justification and objective, the court found a tax regime to be discriminatory in another case as well, wherein, the widow would have been provided with the tax benefit, had she been in the same circumstances as the widower. However, the widower was not provided with such tax benefit.²³ (Lack of legitimate justification and objective of tampon tax in case of Nepal has been discussed below in 3.2.1.)

However, in regard to the violation of the right to equality, the first question that arises is; is the tampon tax discriminatory? For instance, as a critique of feminist jurisprudence, there arose an argument that there cannot arise discrimination on the grounds of pregnancy simply because a man cannot get pregnant but a woman can.²⁴ A similar reasoning can be seen in the case of Geduldig v. Aiello.²⁵ So, is a similar argument applicable here? Can it be argued that there cannot arise tax discrimination simply because menstruation is a natural phenomenon only seen in females, and not in males? This can be answered by looking into the case of Bray v. Alexandria Women’s Health Clinic wherein it was decided that “a tax on wearing yarmulkes is a tax on Jews”.²⁶ On this basis, it has been argued that taxing sanitary napkins as luxury goods is analogous to taxing yarmulkes as luxury goods, and thus is discriminatory.²⁷ The question is not to be answered on the grounds of biological differences between the sexes but on the fact that one’s essential commodity is taxed more in comparison to the others’ essential commodity. For instance, authors have taken the example of spermicidal contraceptives and erectile-dysfunction medicines being tax-free, as a ground to justify why women’s menstrual products should also be tax-free.²⁸ Further, it has been rightly argued that Gedulgid (a decision which has been largely criticised) while poses a challenge to the argument that tampon tax should be considered as a sex-based discrimination, cannot be implemented in case of discriminatory tampon taxation. Observing the Indian Case of Nargesh Meerza,²⁹ wherein it was decided that penalising pregnancy amounts to sex-based discrimination even if a man cannot get pregnant, it can be concluded that biological differences in sex do not prevent discrimination from being established. A sex-based tax is discriminatory even if members of the other sex occasionally are the purchasers of the product.³⁰ Therefore, it is on these grounds that tampon taxation violates the right to equality.³¹

3.2.1. Is there any Justification for the Discrimination?

There are tax differences between the two sexes that are not discriminatory because of the presence of a legitimate objective that the law aims to achieve. For example, the difference in taxation between the two sexes in the case of land registration.³² However, is there any similar justification for the presence of tampon tax in Nepal?

It has been argued that one of the reasons to keep the tampon tax is that it contributes to the state’s budget.³³ However, given that a very less portion of women use sanitary napkins, the argument fails in the Nepalese context. Further, the argument fails because, given the practice of welfare state, the government instead is spending money to make the products available for free of costs. Therefore, revenue does not seem to be the reason to keep the tampon tax. Further, even if it did contribute substantially to the state’s budget, it cannot justify the discriminatory measure.³⁴ Next, economists argue that inelastic goods need to be taxed for revenue generation. However, this argument is defeated by the reasons provided above against the budget contribution argument. Further, given the presence of alternative products (although unhygienic) in Nepal, sanitary napkins are somewhat elastic products, even if they might be inelastic in developed nations.³⁵

3.2.1.1 Case Where Sanitary Napkins is Produced by Domestic Manufacturers.

The next argument on why the tampon tax should exist, can be understood by taking a recent example from India. Finance Minister of India, Nirmala Sitharaman, while dealing with Integrated Goods and Services Tax (IGST) on COVID-19 relief materials and services, stated that a tax exemption would increase the manufacturing costs, as the tax credit obtained upon purchase of input goods cannot be deducted against the final output GST liability. The input tax credit gets blocked and thus, the price will be raised by the producers bringing back the situation that existed while the tax was imposed.³⁶ Now, this argument that price will increase in case of exemption assumes that the role of the state is absent. The solution to this input tax blockage (in case of tax exemption) is that the state can bear the cost of the blocked input tax credit. The state can also put a cap on the increase in price (profiteering) that can be done by the producers. For instance, the Black Marketing Act, 2032 (1975) puts a cap of 20% on profiteering.³⁷ It is within this 20% that the producers can increase their profit margin to recover the blocked input tax.

Now, the reasonable solution, instead of VAT exemption, is to classify sanitary napkins as zero-rated goods.³⁸ (Further discussed below). Adding sanitary napkins to zero-rated goods as listed under Schedule-II of the Value Added Tax Act, 2052 (1996) should be done. When it comes to zero-rated goods, there can be no tax on input supplies or the input tax can be credited, despite the final product not being taxed. However, in context of Nepal, firstly, there is no system for exemption on input tax in as under the “zero-rated classification”. Thus, the only option is that the input tax is credited despite the output not being taxed, thus refunding the input tax.³⁹ While zero-rated goods are mostly in regard to exports, there is a need to recognise sanitary napkins (along with other necessary goods) as zero-rated goods despite them not being exported.

VAT exemption may instead be detrimental to the aim of removing period poverty, and enlisting sanitary napkins as a zero-rated good seems to be the way forward. An observation made in the case of India, observed that the price increases due to exemption.⁴⁰ (See the figure below). Now, while the government can take the burden of removing input tax blockage (in case of exemptions), it can also lessen the price burden by lessening the import duty on the materials required for production in the first place.

Therefore, it can be concluded (from 3.2.1 and 3.2.1.1) that there does not appear to be any reasonable justification to the discriminatory tampon tax in Nepal and, thus, it should be removed with the product being enlisted as a zero-rated good, while also decreasing the import duties.

Figure 1: Impact of GST Exemption on Sanitary Napkins.
Source: Saral Designs.

(However, while classifying necessary goods as zero-rated goods is more efficient, it should be noted that, generally, in practice, exemption is provided on necessary goods instead of enlisting them as a zero-rated good. A plain reading of Schedule-II of the VAT Act concludes that only those goods and services that are exported outside of Nepal are provided with “zero-rated privilege”. Therefore, in practice, sanitary napkins made for domestic consumption will not fall under Schedule-II. Next, while exemption can be useful, as the final 13% of tax is not applied, but it does not ensure that selling price will decrease, as the producers can increase the price of the product since their input tax is not being credited.)

3.2.1.2 In case of Import of Sanitary Napkins

Tax exemption might be effective only in case where the sanitary napkins are being imported. Currently, there is no exemption on sanitary napkins. Thus, upon import, custom duty, excise duty, and VAT are applicable, which raises the price. Finally, again, output tax is applicable along with a profit margin which again adds to the price.

Once exemption as under Schedule-I of the VAT Act is provided, there is no presence VAT or “input tax” upon import (unlike that in the case of manufacturing). Thus, there is no issue of blockage of input tax due to exemption (since input tax does not exist). Thus, a VAT exemption on the output tax can be effective here in case of imports, due to the absence of input tax blockage. However, what should be understood is that, while there is no issue of input tax blockage, the initial cost (cost of production or rather, cost of import) itself is very high (due to high custom duty and excise) in case of import as compared to the case of manufacturers, and thus, the selling price is still high as was in the case of manufacturers being provided with exemption.

In the case of Nepal, sanitary napkins are largely imported and an alternative to make such products more accessible with the government’s involvement would be to make the nation self-sufficient in regard to such products. Thus, manufacturing such products is important. However, as already noted, in the case of manufacture, tax exemption is not effective. Thus, it can be concluded that tax exemption in the case of manufacturing and tax exemption in the case of import, both are ineffective as price would still be high. Thus, the reasonable solution is to make the nation self-sufficient with enough manufacturers and enlisting the product as zero-rated good.

4. Conclusion

The concept of human flourishing is important to be understood. The theory provides that necessities like food, shelter, etc., including necessities like education, medical supplies, etc. should be accessible without any taxation.⁴¹ The income tax of Nepal follows progressive taxation, while indirect tax, although equal for all, is regressive in nature because the lower-income class spend more percentage of their income on indirect tax than those belonging to the high-income class. Tampon tax adds to such regressive nature of indirect taxation, disproportionately affecting females.⁴² It is to prevent such regressive taxation that countries provide exemption (or enlist them as a zero-rated good) when it comes to essential goods. We can thus conclude that zero-rated products benefit the lower-income consumers,⁴³ which should be the aim of a welfare state. However, such practice has not been observed when it comes to sanitary napkins.

One can observe that courts (in the US) have interpreted menstrual products to fall within the definition of “medical necessities” to provide such articles with a tax exemption.⁴⁴ However, the position was not so in the past. It was only achieved after the “woman question” was asked and addressed. The reasonable solution lies on the individual states; their legislature and the courts to address the problem.⁴⁵ A writ has been filed before the Supreme Court for removal of such taxation. Therefore, the court should recognise these grounds and direct removal of luxury tax from products that fall within the classification of medical necessity. It is true that “exemption” or “zero-rated classification” of sanitary napkins might not affect the issue of period poverty substantially. Rather than taxation, the issue with affordability is due to poverty and price itself, of which, the tampon tax forms a lesser percentage. However, the court should be more concerned with what is wrong and what is right rather than the degree of influence of the removal of such taxation, and establish that the tampon tax is discriminatory.

(The article attempts to highlight why VAT exemption might not be as effective as intended. It might help to reduce the price but it might not achieve this end. What is more effective is enlisting the good as a zero rated good, which absolutely helps in reducing the price for the consumers by removing the VAT.)

(Further, although the article uses the term “sanitary napkins”, the arguments and suggestions can be used in regard to other sanitary products as well.)

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*Sharad Prasad Koirala is a Founding Partner at Learned and Lawyers, Kathmandu. He specialises in Nepalese Taxation Law. He has been assisted by Sankalpa Koirala for the purpose of this article.

(The editorial board is thankful towards CA Durga Prasad Gnawali, Partner at NBSM, for his advice.)

(This article has been prepared for informational purposes only and does not constitute legal advice. The information contained is not intended to create a lawyer-client relationship. The views expressed in the article does not reflect the the official position of the institutions to which the authors are affiliated. Readers should not act upon this without seeking advice from professional advisers.)

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1 Value Added Tax Act 1996, s 7.

2 Shuvangi Khadka, ‘Making sanitary pads cheaper or free?’ (Econ-ity, 15 April 2021) <https://econitynepal.com/making-sanitary-pads-cheaper-or-free/ > accessed 14 August 2021

3 Samantha Friborg, ‘How 1 Education Focused Program Tackles Period Poverty in Nepal’ Brogen Magazine (Seattle, 4 October 2020) <https://www.borgenmagazine.com/period-poverty-in-nepal/ > accessed 14 August 2021

4 United States v. Virginia, 518 U.S. 515, 516 (1996)

5 Niroj Bhattarai, Alexandra Bernasek and Anita Alves Pena, ‘Factors Affecting School Attendance and Implications for Student Achievement by Gender in Nepal’ (2020) Review of Political Economy < https://www.tandfonline.com/doi/abs/10.1080/09538259.2020.1769296?journalCode=crpe20 > accessed 14 August 2021; Bridget J. Crawford, ‘Tampon Taxes, Discrimination and Human Rights’ (2017) Wisconsin Law Review 491<https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=2068&context=lawfaculty > accessed 12 August 2021

6 Editorial, ‘1.3 million girls in Nepal to receive free menstrual supplies’ (Reliefweb, 3 September 2020) <https://reliefweb.int/report/nepal/13-million-girls-nepal-receive-free-menstrual-supplies > accessed 13 August 2021

7 Editorial, ‘Sanitary pad: Ahile nisulka, pachi k hola’ BBC News Nepali (Kathmandu, 15 February 2020) <https://www.bbc.com/nepali/news-51030781> accessed 13 August 2021

8 Cochac Elkayam-Levy, ‘A Path to Transformation: Asking “the Woman Question” in International Law’ (2021) 42 (3) Michigan Journal of International Law 429 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3543189> accessed 13 August 2021

9 Lawrence Zelenak, ‘Taking Critical Tax Theory Seriously’ (1998) 76 North Carolina Law Review 1521 <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1535&context=faculty_scholarship > accessed 12 August 2021

10 Maya Rhoden, ‘President Obama Doesn’t Understand the ‘Tampon Tax’ Either’ TIME (15 January 2016) <http://time.com/4183108/obama-tampon-tax-sanitary/&gt; accessed 14 August 2021

11 Hailaire Barnett, Introduction to Feminist Jurisprudence (Cavendish Publishing 1998) 22

12 Bridget J. Crawford and Emily Gold Waldman, ‘The Unconstitutional Tampon Tax’ (2018) 53 University of Richmond Law Review 439 <https://lawreview.richmond.edu/files/2019/02/CrawfordWaldman-532.pdf> accessed 14 August 2021

13 Suzanne Herman, ‘A Blood-Red-Herring: Why Revenue Concerns Are Overestimated in the Fight to End the “Tampon Tax”‘ (2021) 48 Fordham Urb LJ 595 < https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2835&context=ulj > accessed 14 August 2021

14 Hailaire Barnett (n 11).

15 Carolyn Hardesty, ‘The Woman Question Today’ (1987) 272 (3) The North American Review 89 < https://www.jstor.org/stable/25124890 > accessed 14 August 2021

16 Katherine T. Barlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829 <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1119&context=faculty_scholarship> accessed 14 August 2021

17 Anthony C. Infanti and Bridget J. Crawford, Critical Tax Theory: An Introduction (Cambridge University Press 2009) 11

18 International Convention on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art 12; Office of the High Commissioner for Human Rights, ‘CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health’ (Art. 12)’ (E/C.12/2000/4)

19 International Convention on Economic, Social and Cultural Rights, arts 12 and 14 (2) (h).; Bridget Crawford ‘Tampon Tax be Gone: What the US Can Learn from India’s #LahuKaLagaan Repeal (Part II/II)’ (National Law School of India Review, 25 December 2018) <https://nlsir.com/tampon-tax-be-gone-what-the-us-can-learn-from-indias-lahukalagaan-repeal-part-ii-ii/ > accessed 12 August 2021

20 Dagan Omwesiga, ‘Tax Regime in Nepal – Implications on Human Rights’ (2018) 6 Kathmandu Sch L Rev 68 < https://kslreview.org/index.php/kslr/article/view/949> accessed 12 August 2021

21 Van Raalte v Netherlands App no 20060/92 (ECtHR, 1997)

22 Hobbs v United Kingdom App no 29750/09 (ECtHR, 2007)

23 Willis v United Kingdom App no 36042/97 (ECtHR, 2002)

24 Katherine T. Barlett, ‘Feminist Legal Methods’ (n 16) 841-842.

25 Geduldig v. Aiello, 417 U.S. 484 (1974)

26 Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)

27 İlayda Eskitaşçıoğlu, ‘Access to Menstrual Products is a Constitutional Right. Period.’ (Verfassungsblog, 5 December 2019) <https://verfassungsblog.de/access-to-menstrual-products-is-a-constitutional-right-period/&gt; accessed 14 August 2021

28 Bridget J. Crawford and Emily Gold Waldman, ‘The Unconstitutional Tampon Tax’ (n 12) 439.

29 Air India v. Nargesh Meerza, 1981 AIR 1829

30 Victoria Hartman, ‘End the Bloody Taxation: Seeing Red on the Unconstitutional Tax on Tampons’ (2017) 112 Nw U L Rev 313 < https://scholarlycommons.law.northwestern.edu/nulr/vol112/iss2/4/ > accessed 14 August 2021

31 Constitution of Nepal 2015, art 18.

32 Dagan Omwesiga, ‘Tax Regime in Nepal – Implications on Human Rights’ (n 20).

33 Suzanne Herman, ‘A Blood-Red-Herring: Why Revenue Concerns Are Overestimated in the Fight to End the “Tampon Tax”‘(n 13) 620.

34 Christopher Cotropia and Kyle Rozema, ‘Who Benefits from Repealing Tampon Taxes: Empirical Evidence from New Jersey’ (2018) 15 J Empirical Legal Stud 620 <https://scholarship.richmond.edu/law-faculty-publications/1503/&gt; accessed 14 August 2021

35 ibid 627.

36 Deepak Joshi, ‘India’s Taxation Policy is Behind the COVID Curve’ The WIRE (New Delhi, 19 May 2021) <https://thewire.in/government/india-gst-covid-19-relief-materials-solutions > accessed 14 August 2021

37 Black Marketing Act 1975, s 3.

38 Deepak Joshi, ‘India’s Taxation Policy is Behind the COVID Curve’ (n 36).

39 Seena Twayana, ‘What is the difference between NO VAT and ZERO VAT’ Kaagmandu Magazine (Kathmandu, 3 September 2019) <https://www.kmagz.com/what-is-the-difference-between-no-vat-and-zero-vat/ > accessed 14 August 2021

40 Editorial, ‘1 year later: Impact of GST exemption on Sanitary Napkins’ (Saral Designs) <https://saraldesigns.in/1-year-later-impact-of-gst-exemption-on-sanitary-napkins/> accessed 14 August 2021

41 Tsilly Dagan, ‘The Currency of Taxation’ (2016) 84 Fordham L Rev 2537 < https://ir.lawnet.fordham.edu/flr/vol84/iss6/7/> accessed 14 August 2021

42 Jorene Ooi, ‘Bleeding Women Dry: Tampon Taxes and Menstrual Inequity’ (2018) 113 Nw U L Rev 109 < https://scholarlycommons.law.northwestern.edu/nulr/vol113/iss1/3/ > accessed 14 August 2021

43 Suzanne Herman, ‘A Blood-Red-Herring: Why Revenue Concerns Are Overestimated in the Fight to End the “Tampon Tax”‘(n 13).

44 Bridget J. Crawford, ‘Tampon Taxes, Discrimination and Human Rights’ (n 5) 531-534.

45 ibid 512-513.

The Test of A “Reasonable Woman”: Battered Woman Syndrome as a Defence from Criminal Liability in the Nepalese Legal System

KIRAN PAUDEL* SANKALPA KOIRALA**

“A woman, a horse, and a hickory tree

The more you beat ’em the better they be”^[1]

1. Introduction

Legal history has been severely plagued with conservative-patriarchal ideology. Such mind-set has severely affected women in abusive household, who have developed Battered Woman Syndrome (hereinafter, BWS), while they seek recourse in the courts. BWS is a psychological state which emerges when a woman is fed up of the violence, physical or mental, inflicted on her on a regular basis. BWS describes a pattern of violence inflicted on a woman by her mate.^[2] Here, it becomes important to note that while the initial concepts of BWS only dealt with heterosexual relations, there exists a narrative on how the syndrome can arise in homosexual relations (involving women) as well. Similarly, the syndrome can arise in relations other than marital relations. Initially conceptualized as “learned helplessness”, wherein a woman is not able to escape an abusive household despite having the opportunity to do so,^[3] BWS was later referred to the theory of “cycle of violence” which is conceptualized in three stages; tension building, acute battering and contrite loving.^[4] Both of these co-relations were made by psychologist Dr. Lenore Walker.^[5] (Further explained below at 3.)

Historically, battered women have been victimised and ignored not just by their parents but also by the uncaring judiciary.^[6] In lack of a just legal system, a battered woman (who kill their abuser) can be punished thrice; once for enduring an abusive relationship; second for using self-defence itself (as there lacks adequate feminist legal representation while determining the essentials of self-defence, as have been further described below at 4.); third by being excluded from rights like inheritance, pension, joint-tenancy rights, etc., as killers (charged of murder or homicide) are not allowed to enjoy such rights.^[7] (Such layers of punishment can be seen in case of Nepal as well, which has been explained below. See, the text at citation 38). Conservative panels of judges have been found to comply with the traditional notion of self-defence which severely limits the defence available to a battered woman.^[8] Further, given the need of expert testimony (further explained below at 5.) in cases involving BWS, its admissibility should not be limited because of whims of the presiding judge^[9] – a problem that can be witnessed in Nepal. ^[10]

(While BWS has been pleaded in cases like child custody disputes, marital dissolution, etc.,^[11] this article deals with battered women who kill. While there have also been suggestions for the use of the defence of duress,^[12] this article will solely focus on the defence of self-defence as it reflects the practice in the courts. Further, there appears to be a lot of debate on the terminology used itself, as it is said to be misleading.^[13] However, given the large acceptance of BWS in courts and in scientific studies, the article shall only deal with BWS and its application, but will however throw a light on some of the short-comings.)

BWS has also been related to Post-traumatic Stress Disorder (hereinafter, PTSD), as both consist elements of a traumatic event and its effect.^[14]  BWS is considered a subcategory of PTSD^[15] that describes the psychological responses of a woman upon whom repeated violence is inflicted in an intimate relationship. Inherent to BWS are psychological issues of varying intensities, which makes expert witness testimonies and, case-specific and idiosyncratic diagnosis of the syndrome (which prevents unidimensional and stereotypical understanding of a battered woman)^[16] important while claiming self-defense against a crime committed by the battered women on her batterer.^[17] Therefore, expert testimony forms an important part of self-defence.^[18] A body of scientific and clinical literature has formed the basis for expert testimonies in domestic violence cases.^[19]

The phrase “battered women syndrome” has been mostly observed in criminal cases where a woman-murderer who killed her intimate partner sought to avail herself the defence of “self-defence” against the deceased-abuser.^[20] Literature on the issue began developing during the 1970s in the United States of America (US).^[21] It developed as an alternative theory of self-defence developed by feminists to eliminate sex-bias on the traditional doctrine of self-defence, which is based on experiences of men and tested on a “reasonable man” standard.^[22] The requirement of “imminence of danger” and “fists against fists” ground to avail the defence of self-defence is biased against women whose perception of reasonable physical response against a danger and imminence of a danger is different from that of a man.^[23] In the case of State v. Wanrow, the Washington Supreme Court rejected the objective standard of “reasonable man” requirement. The court stated that “the vital question is the reasonableness of the defendant’s apprehension of danger” and such apprehension can vary among the sexes.^[24] Therefore, an expert witness helps elucidate the difference in perception and response that a man and a woman has when there is a presence of a danger.^[25] They can also help address the question as to why did the woman not seek help and continued with the relationship.^[26] However, since the impact of domestic violence varies with socio-economic condition of a woman,^[27] it is important not to generalize the psychological aspect of BWS but undertake a case-to-case basis of analysis. All these issues will be detailed in the following parts of the article.

2. Nepalese Context

In the case of Laximai Badi v. HMG, ^[28] Laxmi Badi had killed her husband while he was asleep. The offender was subjected to domestic violence for 23 years by her alcoholic husband. Here, the court decided that the offender should be convicted for 7 years for the crime of culpable homicide. In another case of  Jok Kumari Karki v. GoN^[29] the abuser (husband) was murdered by his wife. The victim had come home drunk and had abused his wife, who then retaliated by hitting him with an axe which caused the husband’s death. Here, however, the offender was convicted for 10 years. The wife (offender) hid the body of the deceased-victim at a dumping site, which was discovered after 10 days. This might be a reason for the increase in conviction years in comparison to the case of Laxima Badi, since the act seems to be unlike that of a woman with BWS (however, the court did not delve into the issue of BWS). (The conclusion section includes some cases from the US which have provided partial defence to a battered woman because her acts were unlike that of a battered woman.) (Again, it should be noted that BWS should not be generalised towards “weaker” women and there should not be a generalisation on how a battered woman behaves.) The convictions in these cases were made as per no. 188 of the Chapter of Court Management of Muluki Ain, 2020 B.S.,^[30] wherein the authority has been provided with the power to lessen the punishment on reasonable grounds.^[31] Similarly, using the same authority, punishment was reduced to 8 years and 7 years in the cases of GoN v. Shena Lama Sherpa^[32] and Ganga alias Kabita Bajgai (Adhikari) v. GoN,^[33] respectively. However, in the case of Shanti B.K. v. Government of Nepal,^[34] grounds for consideration for application of the provision had been delimited, and such express delimitation (as provided in no. 188 of the Chapter of Court Management of Muluki Ain, 2020 B.S.) was not adequate to deal with BWS.^[35] This highlights the harm that the provisions and judgements that delimit the grounds for self-defence can have.

In the case of GoN v. Radhika Shrestha,^[36] the bench set a precedence on BWS.^[37] The offender-wife had killed her husband by setting him on fire, and she was convicted for 10 years, without confiscation of property. (The trial court had however, decided on lifetime imprisonment pursuant to Section 13(3) of the Chapter on Homicide in the Muluki Ain, along with confiscation of the property).^[38] The case is particularly important because the Supreme Court referred to Walker’s work and had issued a standing order to introduce and amend laws to comply with BWS (not just limited to cases of murder). It was decided that “on the basis of established principles, changed context, demand of the time and seriousness of BWS, it is necessary to manage legal provisions in order to regulate the matters like testing of BWS, admissibility of examination report and expert’s testimony on BWS as an evidence, claims of leniency on punishment made by the defendant in the murder case related to BWS.”^[39]

However, introducing an express provision can also be detrimental to battered women, as it can create a “generalising effect”. Therefore, introduction of a provision dealing with BWS should keep it broad enough to incorporate genuine cases of battered women, while also providing discretion on the authority to reject the defence if the provision is being misused. Presently, the law incorporates provision on mitigating punishments,^[40] which have been said to be used to deal with battered women.^[41] (see citation 35 and accompanying text for a conflicting opinion).  Such provisions mitigate the punishment on the grounds of some form of disability or incapacity. However, such disability or incapacity is not entirely true in the case of a battered woman. Such opinion, labelling a battered woman as “incapable” or “disable”, furthers the stereotype that is prevalent. This further highlights the risk of incorporating (forcefully) BWS into express provisions of the law such as no. 188 Chapter of Court Management of Muluki Ain, 2020 B.S. or Section 39 (h) of the National Penal Code 2017 (Muluki Aparaadh Samhita, 2074 B.S.). Further, limiting application of BWS to limited grounds (by introduction of an express provision on BWS) might fail to incorporate all the cases involving BWS, as behavioural pattern of women suffering from BWS cannot be generalised, as it differs from a case to case basis. Further, BWS has also been criticised on the grounds that it portrays battered women as weak and dysfunctional.^[42] Further, such women are regarded to have failed to comply with their gender expectations and can be labelled as abnormal, mentally ill and dangerous.^[43] Keeping in mind that self-defence plea has been more favourable (in the US) than the plea of insanity or provocation,^[44] the defence of “self-defence” should be made available to battered woman rather than the defence of insanity which is detrimental towards such battered women.

While the need for an express provision on BWS in the Nepalese legal sphere cannot be denied due to lack of judicial literature and endeavour into the issue, the law, if made, should be broad enough, not to again act against the battered woman. Use of Walker’s theory can be detrimental to the battered woman herself. For example, Walker mentions that a battered woman develops learned helplessness (further explained below at 3.1), which renders them passive and unresponsive to violence. Generalisation of such requirement for a  battered woman may leave out women who do not exhibit such behavioural patterns.^[45] Therefore, while defeating older myths regarding  battered women, the theory might create a myth of its own.^[46]  Use of BWS in courtrooms poses the risk of stereotypical and pathological characterisation of a battered woman.^[47] This is true in case of Nepal as well.^[48] Therefore, its application must be done carefully and on a case-to-case basis. Thus, while applying Walker’s theory to introduce a potential provision dealing with BWS, it becomes important to make sure that the provisions do not “generalise” the battered women.

(Courts have reduced the punishment in cases of crimes committed by a woman due to the abusive household that she lived in. However, they have historically failed to expressly deal with BWS.^[49] Another problem that exists with the Nepalese Legal System is that, the judiciary has not yet, at least not fully, recognized the importance of expert testimony in cases involving BWS.^[50] Therefore, this article shall also incorporate the practice in the US legal system while dealing with expert testimony in cases involving BWS. Additionally, this article shall deal with the question as to whether reducing the punishment to that of manslaughter (or equivalent)^[51]or even reducing the years of punishment enough or should there be a complete self-defence for battered women, in appropriate cases. Thus, this article shall also deal with the requirement of a “separate” self-defence based on “reasonable woman test” and highlight the needs of expert witnesses in Nepalese Courts in case of BWS.)

3. Theories of Battered Woman Syndrome

As already stated, BWS is based on core concepts of “learned helplessness” and “cycle of violence”. These theories help one understand the reasons behind the events of domestic violence and reasons for its continuance, along with inherent weaknesses that a woman faces, which acts as a hurdle to her “escape route”. This part shall mainly deal with psychological analysis.

3.1. Learned Helplessness

Originally developed by Martin Seligman, the “Learned Helplessness” theory demonstrates how escaping opportunities were discarded by a battered woman due to traumas caused in the past while escaping. During his experiment, he found that dogs who were subjected to inescapable electric shocks during their attempt to escape, failed to escape even when there were no such shocks,^[52] because they learned that the outcome (i.e. a negative stimuli like electric shocks) were independent of their responses and such learning undermined their attempt to escape.^[53] Using such theory, Walker attempted to explain why women find it difficult to leave a battering relationship.^[54] While there are conflicting studies with regard to learned helplessness in human beings, parallel effect of depression and helplessness can be observed.^[55] In this context, it also becomes important to address that there exist conflicting opinions on how a battered woman can ‘un’-learn helplessness and kill.^[56] However, the theory of learned helplessness is largely accepted today. Therefore, such hurdles in the route of escape, further continues the cycle of violence (explained below at 3.2).

Childhood exposure to domestic violence which might also induce the reluctance to accept such violence as “inevitable”, can also explain why a woman does not leave abusive household.  In addition, law enforcement’s attitude towards domestic violence can also block the path of escape. The “castle doctrine” (as observed in the US) which provides that a person’s home is their castle and they ought not to abandon it to his enemy, can also justify why a battered woman does not retreat. However, here again, a loophole that exists is that, if the attacker has a much larger right on the household where the attack occurs, duty to retreat still applies on the woman.^[57]

3.1.1. Adapting the Psychosocial Theory of Learned Helplessness to Battered Women

It has been found that battered women live with, marry and even return back to their batterer.^[58] The choice to stay in the relation is sometimes based on a rational cost-benefit analysis. In many situations, a woman cannot sustain herself, without the partner’s help and thus, staying in the relation becomes more reasonable.^[59] Battered women, therefore, do not attempt to escape the relationship, because of their submissiveness and passiveness. They do not believe that they can control their situation. The theory therefore explains how killing the batterer becomes the last resort, as she believes that she is not able to prevent the situation in any other manner.^[60] However, it is pertinent to note that Seligman (along with his colleagues) himself, has criticised the use of “learned helplessness” theory by Walker stating that “passivity observed among victims of domestic violence is a middling example of learned helplessness”.^[61] Therefore, such partly-conflicting observations might give a reasonable ground to conclude that the “reasonable woman test” should only be a ground for mitigation of punishment, and not a ground for excuse. However, in judicial practice, complete self-defence has been provided, which also cannot be ignored.

3.2 Cycle of Violence

To understand BWS, there is a need to understand how battering occurs and recurs.  According to the “cycle of violence” theory, battering in a relationship occurs in a “cycle” rather than in a “random” or in a “constant” manner. There are three stages in a battered relationship; the tension building phase; the acute explosion or acute battering incident; and the contrite loving stage.^[62] If this cycle repeats twice, it gives rise to a battered relationship,^[63] as has been cited by the Supreme Court of Nepal as well.^[64]  Continuance of the cycle is fueled by the psychological and economic obstacles that a women faces if she chooses to be independent from the relation. “Romantic paternalism” present in the society can further explain how a woman is caged^[65] and cannot escape. Additionally, it has been found that people who left the abusive relationship, were traced and faced even greater abuse. Thus, the primary fear of such women – retaliation with even more violence by the batterer – gives continuance to such relationship.^[66] Further, battered women were found to be restricted (isolated) by the batterer due to his jealousy and to shield against discovery of the abuse by other people. Additionally, the battered women insulate themselves due to humiliation and fear.^[67] However, application of the “cycle of violence” theory to battered women have faced criticisms – with Prof. Faigman, for example, stating that “the prevailing theories of battered woman syndrome have little evidentiary value in self-defence cases…[and is] incapable of explaining why an abused woman strikes out at her mate when she does”.^[68] Therefore, again, such short-comings might explain the reasons for the “reasonable woman’s test” being only a ground for mitigation of punishment, and not a complete excuse.^[69]

3.3 Conclusion on the Theories

There have been several comments on the inherent problems of the BWS theory and its incompliance with the empirical findings that does not support the presence of learned helplessness, further complicating the already-difficult evidence problem.  For example, Gondolf and Fisher’s research suggests that battered women actively sought help. However, again, such findings may not align with the Nepalese society. Walker has found that battered women developed low self-esteem, fear and held traditional view about home and female sex roles; thinking if they would improve, their mates would stop beating them.^[70] Further monetary dependence of the woman on the husband, provides a ground for battering to build without any routes for escape.^[71] Such explanations still aligns with the male-centric cultural practices^[72] of the Nepalese society. Therefore, despite there being conflicting findings, large acceptance of the theory cannot be denied.

4. Justifying the test of a “Reasonable Woman”

Observing historically, the common law permitted “moderate correction” of the wife. The nineteenth century British Common law validated the “rule of thumb” according to which, a husband can beat his wife with a rod not thicker than his thumb. A husband was legally considered to be sovereign of his wife.^[73] A wife who killed her husband used to face far serious punishments than a husband who killed his wife. Similar patriarchal notion can be observed in the “gender-neutral” laws, like self-defence as well.

Walker has addressed the issue of self-defence being tested under the test of a “reasonable person” which generally includes objective test of what an average reasonable man would do as self-defence.^[74] She advocated for the term “battered women self-defence”.^[75] Similarly, she addressed the issue with the requirement of “imminence” to invoke self-defence. Generally, a battered woman becomes hyper-vigilant to impending danger and takes a pre-emptive strike, without an “imminence” of danger being there. Expert evidence can help in establishing “imminence” element (of sorts) of self-defence claim as well.^[76] Another issue arises with the requirement of “reasonable amount of force to repeal danger”. Given the previous incidents of domestic violence and having been defenceless against the batterer, and possibility of future retaliation by the batterer if the woman fights back, a woman may grab for a gun or a knife as a weapon of self-defence, and kill to prevent impending battering.^[77] Professor Paul Robinson provides an allegory to explain how a danger can have “imminence” without being “imminent”. He explains, if a boat has a slow but steady leak, with a certainty that the ship will sink, will the sailors wait till the boat sinks?^[78] In lack of adequate alternative against the abusive relationship, killing seems to be the only way out.^[79] Such explanations help explain killing of the batterer in both confrontational and non-confrontational cases.^[80]

Since battered women kill when the husband is off-guard, they fail to meet the “immediacy requirement” for self-defence (as per the general view).^[81] Similarly, the existence of “equal force” requirement in the claim of self-defence works against a battered woman, because such equal use of force from the woman might result to larger retaliation from the male counter-part. Thus, a higher force resulting to death is reasonable. This highlight a need of “reasonable woman test”, when it comes to battered women who kill, since the test of “reasonableness” itself is not reasonable.^[82] It has been stated that the requirement of “equal force” assume that the persons in dispute are equal in in size and ability. Such objective standard of self-defence prejudices the woman.^[83] Similar short-comings in the test of self-defence existed in the English Common law system.^[84]

Knowledge is interwoven with perception and a battered woman’s perception of violence is different from that of a male. There have been instances where a jury could not figure out why a battered woman killed her batterer at the time that she did, and not before.^[85] (Here again, one can observe the importance of expert witness.) This can again be justified using the cycle of violence theory and how a woman perceives domestic violence. Therefore, a reasonable battered woman might react differently towards violence than a male, thus justifying the test of a “reasonable woman”.^[86] These issues must be acknowledged by the courts of Nepal.

5. Case for Expert Witness

There have been findings in the US on expert witnesses, whose primary role is to educate and sensitise the jurors, so as to aid them in their decision making process. They help in dispelling myths and stereotypes associated with battered women. Courts have historically been misinformed about battered women^[87] and an expert witness’s involvement aids the courts to see clearer pictures that are not confined within the four walls.^[88]

Expert witness has been denied in the past because of a lack of adequate scientific acceptance on BWS.^[89] However, there has been a substantial scientific development in the field. The American Psychological Association has endorsed the validity of the syndrome in many amicus submissions filed by them.^[90] Australian courts also accepted the syndrome to be a scientifically established facet of psychology during the 1990s^[91]  unlike in the 80s.^[92] Similarly, in the US, courts in every jurisdiction have accepted the use of expert testimony in cases involving BWS and self-defence claim, with some US states codifying it into statues.^[93] The American courts have also found that the syndrome satisfies the Daubert test, which requires the judges to consider the testability of the scientific theory; error rates associated with the theory; publication of relevant research in peer-reviewed publications; and general acceptance of the scientific basis of the theory, before accepting expert testimonies.^[94]

Experts are brought in to provide a combination of information and insight. The insight (their own views) that they provide, reflects a part of the expert’s role in acting as an advocate for any battered woman. This may create a “conflict of interest” on the part of the expert.  Expert witnesses have been denied based on the reasoning of “prejudicial impacts”.^[95] (However, it has been found that benefits of expert testimony outweighs the prejudicial effect, as has been provided below. See the text at citation 101). This highlights the need of “information part” of the testimony from the expert which are not based on his views but based on the facts of the case and study of the background of the battered women. ^[96]

Research suggests that if the observer (i.e. the judge) is able to differentiate between themselves and the victim, it creates a “sympathy” on the part of the observer and such differentiation allows the observer to believe that they have never faced and will never face such violence because they are not in the same situation as the victim.^[97] An expert testimony on battered woman helps in creation of such differentiation, and establish a different “category” for such women. Therefore, such differentiation makes the court undertake the “reasonable women’s test”, as the situation that the battered women have faced, is not something that can be compared with other forms of violence. This also highlights the need of expert testimony.^[98]

The Supreme Court has acknowledged the need of a legal provision in Nepalese Legal System which allows expert witness testimony in cases dealing with BWS.^[99] The Dyas test,^[100] as followed by some states in the US, provides that so as to accept expert witnesses, there must be a subject matter which is “beyond the ken of the average layman” and the witness must have “sufficient knowledge or experience in that field…or his inference or opinion aids the trier in his search for the truth”. Finally, “the state of the art of the testimony’s substance must be such that an opinion or inference can reasonably be drawn by an expert.” This test provides grounds for admitting expert witness testimony, while also making sure that “junk sciences” are excluded. Applying the test, the District of Columbia Court of Appels had decided that the lower court had erred by excluding testimony of Dr. Lenore Walker herself. The Court of Appeals decided that the value of testimony substantially outweighed any prejudicial effect.^[101] However, there always lies a risk of well-grounded scientific theories being inadmissible due to submission of “junk sciences” by experts. Such situation arises because of the experts whose opinion are available to the highest bidder.^[102] A proper scrutiny to establish impartiality is to be done, as misuse of the defence cannot be denied.^[103]  Therefore, the grounds laid down in the Dyas test has to be noted while developing an express provision admitting expert witness in the cases involving BWS.

6. Conclusion

These findings must be taken into account while making an express provision on battered women syndrome. There are short-comings on the theory propounded by Walker. Further, there are serious issues like the introduction of junk science, while introducing expert testimony, which can again introduce a new plague. While an express provision does possess a risk of “generalisation”, what cannot be denied is that fact that many states have effectively implemented the findings on BWS, by providing broad interpretation to the law concerning BWS. The practice of mandatory minimum punishment for battered woman who kill must end, if all the requirements of the defence are made out.^[104] Rather than merely limiting BWS as a mitigating factor for punishment, there is a need to provide full self-defence in appropriate cases. Similarly, there is also a need to address the potential misuse that such provisions can have, and therefore limitation is necessary to prevent it from being used as a sword rather than a shield. For example; in a case (from the US), a woman victim of domestic violence, was correctly not a given a protection under the garb of BWS, wherein she had hired a person to kill her husband after being separated for two months. Further, the killing took place at the defendant’s house and she was encouraging the homicide.^[105] However, there have been cases where imperfect self-defence has been provided to a battered woman, despite her act of hiring a man to kill her husband.^[106] Therefore, the potential provision on BWS should be broad enough to introduce the practice of full self-defence and to prevent creation of a “new myth”, while also providing adequate discretion to the judiciary to filter out cases to prevent the abuse of such provisions. As already mentioned, case-specific and idiosyncratic diagnosis should not be disturbed if any express provision is introduced. Additionally, the provision should also make expert testimony easily admissible in such cases because the issue of BWS is multi-disciplinary,^[107] and is not just limited to the study of law.

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*Kiran Paudel is a Founding Partner at Wisdom Law Associates, Kathmandu. The author holds LL.M. degree (in Criminal and Commercial Laws) and M.A. in Political Science from Tribhuvan University. He is currently a candidate for Master in Public Administration, Tribhuvan University.

**Sankalpa Koirala is a B.A./LL.B. student at RGNUL, Punjab.

(The editorial board is thankful towards Prof. Dr. Rajit Bhakta Pradhananga for his advice.)

(This article has been prepared for informational purposes only and does not constitute legal advice. The information contained is not intended to create a lawyer-client relationship. The views expressed in the article does not reflect the the official position of the institutions to which the authors are affiliated. Readers should not act upon this without seeking advice from professional advisers. )

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[1] M Julianne Leary, ‘A Woman, a Horse, and a Hickory Tree: The Development of Expert Testimony on the Battered Woman Syndrome in Homicide Cases’ (1985) 53 UMKC L Rev 386 < https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1338&context=lawineq >

[2] Paul C. Giannelli, ‘Battered Woman Syndrome’ (1993) 16 (1) Public Defender Reporter 1  <https://scholarlycommons.law.case.edu/faculty_publications/312/ >

[3] Lenore E Walker, Roberta K Thyfault and Angela Browne, ‘Beyond the Juror’s Ken: Battered Women’ (1982) 7 Vt L Rev 1 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/vlr7&div=6&id=&page=&gt;

[4] ibid.

[5] ibid.

[6] A Renee Callahan, ‘Will the Real Battered Woman Please Stand Up–In Search of a Realistic Legal Definition of Battered Woman Syndrome’ (1994) 3 Am UJ Gender & L 117  < https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1189&context=jgspl&gt;

[7] Barbara Hamilton and Elizabeth Sheehy, ‘Thrice Punished: Battered Women, Criminal Law and Disinheritance’ (2004) 8 Southern Cross University Law Review 96 <https://eprints.qut.edu.au/19298/&gt;

[8] Julie Blackman, ‘Potential Uses for Expert Testimony: Ideas toward the Representation of Battered Women Who Kill’ (1986) 9 Women’s Rts L Rep   246 < https://heinonline.org/HOL/LandingPage?handle=hein.journals/worts9&div=24&id=&page=>

[9] Diana J Ensign, ‘Links between the Battered Woman Syndrome and the Battered Child Syndrome: An Argument for Consistent Standards in the Admissibility of Expert Testimony in Family Abuse Cases’ (1990) 36 Wayne L Rev 1619 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/waynlr36&div=53&id=&page=&gt;; David L Faigman and Amy J Wright, ‘The Battered Woman Syndrome in the Age of Science’ (1997) 39 Ariz L Rev 67 <https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1140&context=faculty_scholarship&gt;

[10] Government of Nepal (as per the FIR of Gurans Devi Lama) v Radhika Shrestha [2014] NLR 2071 Issue 9 Decision No. 9242 (Supreme Court)

[11] Mary Ann Dutton, ‘Update of the “Battered Woman Syndrome” Critique’, Applied Research Forum National, (2009) Online Resource Center on Violence Against Women  < https://vawnet.org/sites/default/files/materials/files/2016-09/AR_BWSCritique.pdf&gt;

[12] Meredith Blake, ‘Coerced into Crime: The Application of Battered Woman Syndrome to the Defense of Duress’ (1994) 9 Wis Women’s LJ 67 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/wiswo9&div=7&id=&page=&gt;

[13] Regina A Schuller, ‘Expert Evidence and Its Impact on Jurors’ Decisions in Homicide Trials Involving Battered Women’ (2003) 10 Duke J Gender L & Pol’y 225 < http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1077&context=djglp&gt;

[14] Mary Ann Dutton, ‘Update of the “Battered Woman Syndrome” Critique’ (n 11).

[15] Lenore E A Walker, ‘Battered Women Syndrome and Self-Defense’ (1992) 6 Notre Dame JL Ethics & Pub Pol’y 321 < https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1476&context=ndjlepp>; Anna Gotter, ‘Battered Women Syndrome’ (Healthline, May 6, 2021) < https://www.healthline.com/health/battered-woman-syndrome#:~:text=Battered%20woman%20syndrome%20is%20considered,woman%20syndrome%20may%20feel%20helpless>

[16] Katherine K. Baker, ‘Gender and Emotion in Criminal Law’ (2005) 28 Harv J L & Gender 447 < http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1052&context=fac_schol&gt;

[17] Jacquelyne R. Biggers, ‘The Utility of Diagnostic Language as Expert Witness Testimony: Should Syndrome Terminology Be Used in Battering Cases?’ (2005) 5 (1) Journal of Forensic Psychology Practice 43 <https://www.tandfonline.com/doi/abs/10.1300/J158v05n01_03 >

[18] ibid.

[19] The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence against Women Act (U.S. Department of Justice, May 1996) <https://nij.ojp.gov/library/publications/validity-and-use-evidence-concerning-battering-and-its-effects-criminal-trials >

^[20] Noel Rivers-Schutte, ‘History of the Battered Woman Syndrome- a fallen attempt to redefine the reasonable person standard in domestic violence cases’ (2013) Law School Student Scholarship <https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1618&context=student_scholarship >

[21] ‘Battered Women Who Kill Their Abusers’ (1993) 106 Harv L Rev 1577

[22] Phyllis L Crocker, ‘The Meaning of Equality for Battered Woman Who Kill Men in Self-Defense’ (1985) 8 Harv Women’s LJ 121

[23] ibid 126- 127.

[24] State v Wanrow, 88 Wash. 2d 221, 559 P.2d 548 (1977)

[25] Elizabeth Bochank and Elissa Krauss (eds), Women’s Self-Defense Cases: Theory and Practice (Lexis Pub 1981)

[26] Hawthorne v State, 408 So. 2d 801, 806 (Fla. Dist. Ct. App. 1982)

[27] Mary Ann Dutton, Lisa A. Goodman, Kevin Weinfurt and Nataile Vankos, ‘Patterns of Intimate Partner Violence: Correlates and Outcomes’ (2005) 20 (5) Violence and Victims 483 <https://connect.springerpub.com/content/sgrvv/20/5/483>

[28] Laxmi Baadi v. HMG [2003] Decision No. 7246, 2060   (N.K.P 2060, no. 7/8, Decision no. 7246, p.578)

[29] Joak Kumari Karki v GoN, Decision No. 8223, 2066 (2009)

[30] Chapter of Court Management of Muluki Ain 2020, no. 188.

[31] Dibya Shrestha and Nisha Bhandari, ‘Battered Women Syndrome: Need for Judicial Objectivity’ (2018) 6 Kathmandu Sch L Rev 149 < https://www.nepjol.info/index.php/kslr/article/view/30747&gt;

[32] GoN v Sena Lama Sherpa, Sc. Bull. vol. 1, at 29 (2072)

[33] GoN v Ganga alias Kabita Bajgai (Adhikari), Sc. Bull. Vol. 1, at 5 (2073)

[34] Shanti BK v GoN, NKP 2061, no. 6, p.769, Criminal Appeal No. 3091 of 2059

[35] Indira Silwal, ‘Battered Woman Syndrome as a Mitigating Factor of Homicide in Nepal’ (2017) 11 NJA LJ 151 < https://heinonline.org/HOL/LandingPage?handle=hein.journals/njal11&div=10&id=&page=>

[36] Government of Nepal (as per the FIR of Gurans Devi Lama) v Radhika Shrestha [2014] Decision No. 9242, 2071

[37] ‘SC sets precedent over Battered Women Syndrome’, New Spotlight (5 January 2015) <https://www.spotlightnepal.com/2015/01/05/sc-sets-precedent-over-battered-women-syndrome/ >

[38] ‘The Government of Nepal as per the FIR of Gurans Devi Lama v Radhika Shrestha’ (2016) 10 NJA LJ 275 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/njal10&div=20&id=&page=&gt;

[39] Dibya Shrestha and Nisha Bhandari, ‘Battered Women Syndrome: Need for Judicial Objectivity’ (n 31).

[40] The National Penal Code 2017 (Muluki Aparaadh Samhita 2074), s 39 (h); The Criminal Offences (Sentencing and Execution) Act 2017, s 15.

[41] Dibya Shrestha and Nisha Bhandari, ‘Battered Women Syndrome: Need for Judicial Objectivity’ (n 31).

[42] Martha Shaffer, ‘The Battered Woman Syndrome Revisited: Some Complicating thoughts Five Years after R. v. Lavallee’ (1997) 47 U Toronto LJ 9  < https://www.jstor.org/stable/826013&gt;

[43] Susan S.M Edwards, ‘Neither Bad Nor Mad: The Female Violent Offender Reassessed’ (1986) 9 (1) Women’s Studies Int. Forum 79 < https://www.sciencedirect.com/science/article/abs/pii/0277539586900798>

[44] Jacqueline R Castel, ‘Discerning Justice for Battered Women Who Kill’ (1990) 48 U Toronto Fac L Rev 229  < https://heinonline.org/HOL/LandingPage?handle=hein.journals/utflr48&div=16&id=&page= >

[45] Mary Becker, ‘Access to Justice for Battered Women’ (2003) 12 Wash U JL & Pol’y 63 < https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1310&context=law_journal_law_policy&gt;; Julie Stubbs and Julia Tolmie, ‘Falling Short of the Challenge – A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ (1999) 23 Melb U L Rev 709 <http://classic.austlii.edu.au/au/journals/MelbULawRw/1999/27.html&gt;; Shelby A D Moore, ‘Battered Woman Syndrome: Selling the Shadow to Support the Substance’ (1995) 38 Howard LJ 297 < https://heinonline.org/HOL/LandingPage?handle=hein.journals/howlj38&div=18&id=&page=>

[46] Mary Ann Dutton, ‘Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome’ (1993) 21 Hofstra L Rev 1191< https://scholarlycommons.law.hofstra.edu/hlr/vol21/iss4/2/&gt;

[47] Cheryl A Terrance, Karyn M Plumm and Katlin J Rhyner, ‘Expert Testimony in Cases Involving Battered Women Who Kill: Going beyond the Battered Woman Syndrome’ (2012) 88 ND L Rev 921 <https://commons.und.edu/ndlr/vol88/iss4/4/>

[48] Indira Silwal, ‘Battered Woman Syndrome as a Mitigating Factor of Homicide in Nepal’ (n 35).

[49] Doma Lameni v HMG, 37, NKP 104 (2046); Indira Silwal, ‘Battered Woman Syndrome as a Mitigating Factor of Homicide in Nepal’ (n 35).

[50] Indira Silwal, ‘Battered Woman Syndrome as a Mitigating Factor of Homicide in Nepal’

[51] Nepal Govemment on behalf of Rajan Rai  v Amrika Rai, Case no. 236/2061 (Shravan 5 2065).

[52] Martin P. Seligman and Steven F. Maier, ‘ Learned Helplessness: Theory and Evidence’ (1976) 105 (1) Journal of Experimental Psychology 3 <https://ppc.sas.upenn.edu/sites/default/files/lhtheoryevidence.pdf >

[53] Steven F. Maier and Martin E P Seligman, ‘Learned Helplessness at Fifty: Insights from Neuroscience’ (2016) 123 (4) Psychological Review 349 < https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4920136/#:~:text=Learned%20helplessness%2C%20the%20failure%20to,learning%20undermined%20trying%20to%20escape >

^[54] New Zealand Law Commission, Battered Defendants Victims of Domestic Violence Who Offended

^[55] W.R. Miller and M.E. Seligman, ‘Depression and Learned Helplessness in man’ (1975) 84 (3) Journal of Abnormal Psychology; L.Y. Abramson, M.E. Seligman and J. D.Teasdale, ‘Learned helplessness in humans: critique and reformulation’ 87 (1) Journal of Abnormal Psychology 49 < https://psycnet.apa.org/record/1979-00305-001>

[56] Jone Bosworth, ‘The Trouble with Battered Women’s Syndrome’ (1996) 11 Adelphia LJ 63

[57] Maryanne E Kampmann, ‘The Legal Victimization of Battered Women’ (1993) 15 Women’s Rts L Rep 101

[58] State of Kansas v Hundley, 236 Kan.461, 693 P.2d 475 (1985).

[59] Einat Peled and others, ‘Choice And Empowerment For Battered Women Who Stay: Toward A Constructivist Model’ (2000) 45 Social Work 9 <https://www.researchgate.net/publication/12680543_Choice_and_Empowerment_for_Battered_Women_Who_Stay_Toward_a_Constructivist_Model&gt;

^[60] Mira Mihajlovich, ‘Does Plight Make Right: The Battered Woman Syndrome, Expert Testimony and the Law of Self-Defense’ (1987) 62 (4) Indiana Law Journal 1253 <https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2105&context=ilj>

[61] Christopher Peterson, Stefen F. Maier and Martin E.P. Seligman, Learned helplessness: A Theory for the age of Personal Control (OUP 1995)

[62] New Zealand Law Commission (n 54).

[63] State v Kelly, 97 N.J. 178 (1984)

[64] Government of Nepal (as per the FIR of Gurans Devi Lama) v Radhika Shrestha, Decision No. 9242, 2071 (2014).

[65] Frontiero v Richardson, 411 U.S. 677, 684 (1973)

[66] Lenore E Walker and Roberta K Thyfault and Angela Browne, ‘Beyond the Juror’s Ken: Battered Women’ (n 3).

[67] ibid.

[68] Paul C. Giannelli, ‘Battered Woman Syndrome’  (n 2).

[69] Marilyn McMahon, ‘Battered Women and Bad Science: The Limited Validity and Utility of

Battered Woman Syndrome’ (1999) 6(1) Psychiatry, Psychology and Law 23 < https://www.researchgate.net/publication/240235838_Battered_women_and_bad_science_The_limited_validity_and_utility_of_battered_woman_syndrome&gt;

[70] Matthew Fine, ‘Hear Me Now: The Admission of Expert Testimony on Battered Women’s Syndrome – An Evidentiary Approach’ (2013) 20 Wm & Mary J Women & L 221 < https://scholarship.law.wm.edu/wmjowl/vol20/iss1/10/>

[71] Jeffery Robinson, ‘Defense Strategies for Battered Women Who Assault Their Mates: State v Curry’ (1981) 4 Harv Women’s LJ 161< https://heinonline.org/HOL/LandingPage?handle=hein.journals/hwlj4&div=10&id=&page=&gt;; Pamela Posch, ‘The Negative Effects of Expert Testimony on the Battered Women’s Syndrome’ (1998) 6 Am U J Gender & L 485 <https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1227&context=jgspl&httpsredir=1&referer= >; Steffani J Saitow, ‘Battered Woman Syndrome: Does the Reasonable Battered Woman Exist’ (1993) 19 New Eng J on Crim & Civ Confinement 329 < https://www.ojp.gov/ncjrs/virtual-library/abstracts/battered-woman-syndrome-does-reasonable-battered-woman-exist>

[72] Mary Ann Dutton, ‘Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome’  (n 46).

[73] M Julianne Leary, ‘A Woman, a Horse, and a Hickory Tree: The Development of Expert Testimony on the Battered Woman Syndrome in Homicide Cases’  (n 1).

[74] Lenore E A Walker, ‘Battered Women Syndrome and Self-Defense’ (n 15).

[75] Jone Bosworth, ‘The Trouble with Battered Women’s Syndrome’ (n 56).

[76] J Bruce Robertson, ‘Battered Woman Syndrome: Expert Evidence in Action’ (1998) 9 Otago L Rev 277 <https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/otago9&section=22&gt;

[77] Gail S Zarosa, ‘When Battered Women Strike Back’ (1996-1997) 7 US AF Acad J Legal Stud 97 < https://heinonline.org/HOL/LandingPage?handle=hein.journals/usafa7&div=10&id=&page=&gt;; Carolyn Wilkes Kaas, ‘The Admissibility of Expert Testimony on the Battered Woman Syndrome in Support of a Claim of Self-Defense’ (1982) 15 Conn L Rev 121 < https://heinonline.org/HOL/LandingPage?handle=hein.journals/conlr15&div=19&id=&page=>

[78] Paul H. Robinson, Criminal Law Defenses: Criminal Law Practice Series (1984) 57

[79] Aileen McColgan, ‘In Defence of Battered Women who Kill’ (1993) 13 Oxford J Legal Stud 516 < https://ojls.oxfordjournals.org/content/13/4/508.full.pdf+html&gt;

[80] Lauren K Fernandez, ‘Battered Women Syndrome’ (2007) 8 Geo J Gender & L 235

[81] A Renee Callahan, ‘Will the Real Battered Woman Please Stand Up–In Search of a Realistic Legal Definition of Battered Woman Syndrome’ (1994) 3 Am U J Gender & L 117 <https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1189&context=jgspl&gt;; Paula Donner Walter, ‘Expert Testimony and Battered Women: Conflict among the Courts and a Proposal’ (1982) 3 J Legal Med 267 <https://www.tandfonline.com/doi/abs/10.1080/01947648209513352&gt;

[82] David L Faigman, ‘Discerning Justice When Battered Women Kill’ (1987) 39 Hastings L J 207 < https://repository.uchastings.edu/hastings_law_journal/vol39/iss1/5/&gt;

[83] Gail S Zarosa, ‘When Battered Women Strike Back’ (n 77).

[84] Katherine O’Donovan, ‘Defences for Battered Women Who Kill’ (1991) 18 JL & Soc’y 219 < https://www.jstor.org/stable/1410138&gt;

[85] People v Torres, 128 Misc. 2d 129, 130, 488 N.Y.S.2d 361, 362 (1985).

[86] Jenae R Bunyak, ‘Battered Wives Who Kill: Civil Liability and the Admissibility of Battered Woman’s Syndrome Testimony’ (1986) 4 Law & Ineq 603 < https://scholarship.law.umn.edu/lawineq/vol4/iss3/5/&gt;

[87] Lenore E Walker, Roberta K Thyfault and Angela Browne, ‘Beyond the Juror’s Ken: Battered Women’ (n 3).

[88] Julie Blackman and Ellen Brickman, ‘The impact of expert testimony on trials of battered women who kill their husbands’ (1984) 2 Behav Sci & L 413

[89] State v Thomas, 66 Ohio St. 2d 518, 423 N.E.2d 137 (Ohio 1981)

[90] State v Kelly, 97 N.J. 178 (1984)

[91]  R v Runjanjic and Kontinnen (1991) 56 SASR 114. South Australian Court of Appeal

[92] Buhrle v State 627 P.2d 1374 (Wyo. 1981); State v Thomas, 66 Ohio St. 2d 518, 423 N.E.2d 137 (Ohio 1981); Hawthorne v State, 470 So. 2d 770 (Fla. Dist. Ct. App. 1985)

[93] Lauren K Fernandez, ‘Battered Women Syndrome’  (n 80) 5.

[94] Marilyn McMahon, ‘Battered Women and Bad Science: The Limited Validity and Utility of Battered Woman Syndrome’ (n 69) 3.

[95] Fielder v State 683 S.W.2d 565, 594 (Tex. App. 1985)

[96] Julie Blackman and Ellen Brickman, ‘The impact of expert testimony on trials of battered women who kill their husbands’ (n 88).

[97] ibid.

[98] ibid.

[99] Government of Nepal (as per the FIR of Gurans Devi Lama) v Radhika Shrestha, Decision No. 9242, 2071 (2014).

[100] Dyas v United States, 376 A.2d 827, 832 (1977)

[101] Ibn-Tamas v. United States, 407 A.2d 626, 639 (D.C. Ct. App. 1979).

[102] Paul C. Gianelli, ‘“Junk Science”: The Criminal Cases’, (1993) 84 Journal of Criminal Law and Criminology 105 <https://scholarlycommons.law.case.edu/faculty_publications/393/&gt;; Allison Morse, ‘Social Science in the Courtroom: Expert Testimony and Battered Women’ (1998) 21 Hamline L Rev 287  < https://heinonline.org/HOL/LandingPage?handle=hein.journals/hamlrv21&div=20&id=&page=>

[103] Jessica Savage, ‘Battered Woman Syndrome ‘ (2006) 7 Geo J Gender & L 76 < https://heinonline.org/HOL/LandingPage?handle=hein.journals/grggenl7&div=33&id=&page=>

[104] Elizabeth Sheehy, ‘Battered Women and Mandatory Minimum Sentences’ (2001) 39 Osgoode Hall LJ 529 < https://digitalcommons.osgoode.yorku.ca/ohlj/vol39/iss2/13/>

[105] State v. Martin, 666 S.W.2d 895 (Mo. Ct. App. 1984).

[106] Joy Dodge, ‘Porter v. State: Appropriately Pushing the Limits of the Battered Spouse Syndrome Statute’ (2018) 18 U Md LJ Race, Religion, Gender & Class 235 < https://digitalcommons.law.umaryland.edu/rrgc/vol18/iss1/23/&gt;

[107] Anu Lohani, ‘Providing Justice for Women: The Interface between Law and Literature’ (2008) 2 NJA LJ 123 < http://nkcs.org.np/nja/elibrary/?r=27>