Florida’s Second District Court of Appeals recently released the opinion of Brewington v. State, No. 2D10-458, where the Court considered the admissibility of battered woman syndrome as a defense to a charge of Aggravated Manslaughter of a Child. Florida’s criminal defense and criminal appeals attorneys are familiar with the defense being raised where the woman engaged in an aggressive act. However, in Brewington, the defense attempted to introduce the syndrome in an interesting way. Ms. Brewington, who was the victim of an abusive boyfriend, had her children taken away from her when the State discovered that her boyfriend had been selling drugs from her home. A month later, the State returned her children. Shortly after the children had been returned to Ms. Brewington, police responded to her home to investigate a report that one of her children was not breathing. The child was taken to the hospital and died. According to the opinion, the child had been beaten over a period of several days by Ms. Brewington’s boyfriend. Brewington, slip op. at 2.
Both Ms. Brewington and her boyfriend were arrested and charged in the death of her child. Ms. Brewington was charged with Aggravated Manslaughter of a Child, essentially by culpable negligence. At trial, Ms. Brewington attempted to use the battered woman syndrome to challenge the mens rea element–culpable negligence. Specifically, she sought to present evidence that she suffered from battered woman syndrome, that the syndrome caused her to fail to realize exactly what was taking place, that she did not know her boyfriend was beating her child, and that she did not realize her child needed a doctor. Ms. Brewington testified that once her boyfriend could no longer hide the child’s condition, he took away her cell phone and prevented her from calling for help. Ms. Brewington testified that her boyfriend beat her in the past and that she was afraid of him. Brewington, slip op. pg. 3.
Although the trial court found the defense to be inadmissble because the defense failed to meet the Frye test, and the Second DCA affirmed, the opinion is still worth reading because it contains a good discussion of admissibility of scientific evidence under Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), as well as a great discussion of other State’s approaches to the admissibility of battered woman syndrome, and the emergence of the use of battered woman syndrome to defend against criminal charges of failing to protect children. Brewington, slip op., pgs. 3-7. The Court quoted at length from an article drafted by Kathy Luttrell Garcia: Battered Women and Battered Children: Admissibility of Evidence of Battering and its Effects to Determine the Mens Rea of a Battered Woman Facing Criminal Charges for Failing to Protect a Child From Abuse, 24 J. Juv. L. 101, 139 (2003-04):
Clearly, admission of evidence of battering and its
effects will not relieve a battered woman from criminal
liability when the factfinder determines that she actively
participated in the abuse of a child. It also will not
automatically, and might not completely, relieve a battered
woman from criminal liability when she fails to protect her
child from the abuse of another. It should be admitted,
however, when relevant to the issue of whether or not the
passive parent actually formed a culpable mental state that
is an element of the charged offense.
Effects of battering evidence will help the trier of fact
understand the circumstances surrounding the abuse. It will
also help the trier of fact to determine the existence and
extent of the “passive” parent’s participation in the abuse,
the extent of the passive parent’s attempts to protect the
child, and the extent to which the actions of the direct abuser
prevented the passive parent from doing so. This will help
ensure the focus is more appropriately placed on the parent
or caretaker having the greater culpability for the violence:
the parent who directly inflicted the injuries on the child, and
who prevented the “passive” parent from intervening on the