The Counsellor's Corner


Does one domestic assault equal a battered woman.In late May the State Court of Appeal said no.This ruling came out of the conviction of Daniel Gomez who was found guilty of assault with a deadly weapon.The Second District Court of Appeal in Los Angeles reversed this decision.In Mr. Gomezís trial, his girlfriend, who had initially claimed she had been knifed by Mr. Gomez, changed her story dramatically at trial and attempted to downplay the incident.

The prosecution attempted to explain the womanís change of heart by calling an expert witness to the stand who testified as to Battered Woman Syndrome, indicating that women who suffer from this often attempt to minimize the event or deny it happened altogether.

The Court of Appeal ruled that the expert should not have been permitted to testify because a proper foundation had not been laid.

The Court noted that the prosecutionís expert defined Battered Woman Syndrome as ďa series of characteristics which appear in women who have been abused physically and psychologically over a period of time.ĒThe Court ruled that one isolated incident is not sufficient to qualify as Battered Woman Syndrome, and therefore the expert testimony should not have been admitted.

The Attorney General has indicated that he is going to appeal the decision to the State Supreme Court.

This case began in April of 1997 when the victim, Vanessa de la Nunez was cooking liver for the coupleís pet pit bull. Apparently Mr. Gomez got spattered and Ms. de la Nunez ended up with knife wounds.

A police officer who was called to the scene testified that at the hospital, Ms. de la Nunez told him that Mr. Gomez had held the knife against her throat and continued to threaten her with it, which ended in a struggle for the knife.

At trial, Ms. de la Nunez denied the allegation that Gomez had threatened her with the knife and indicated she had never said anything like that.

The prosecution then called Gail Pincus who directs a domestic abuse center as their Battered Woman Syndrome expert, and Ms. Pincus testified that women involved in abusive relationships often attempt to minimize incidents such as this.

The jury was swayed by this tesitmony and, unfortunately for Mr. Gomez, he came into this trial with four prior felony convictions and, under the three-strikes law, was sentenced to 25 years to life.

In reversing the juryís conviction, the Court of Appeal indicated that Battered Woman Syndrome testimony only applies when you have a battered woman.The Court found that other than the one incident described, no evidence was presented that would put Ms. de la Nunez into the battered woman category and/or characterize Mr. Gomez as a batterer.

The Court extended itís decision to indicate that had Ms. de la Nunez been charged with assaulting Mr. Gomez, she would not have been able to use Battered Woman Syndrome as a defense.

The Court of Appeal decided that this expert testimony should not have been admitted, was prejudicial and the Court ordered a new trial.

This ruling makes sense to me.Battered Woman Syndrome is something that develops over time.In this case, the prosecution could still cross examine and impeach Ms. de la Nunez with her alleged statements to the police officer at the hospital, and could then put the police officer on the witness stand to contradict her testimony, but that is as far as it goes.†† Battered Woman Syndrome requires more than one incident.I think that it sells women short, in general, to think that one incident such as the above would create a mind set where this syndrome would have kicked in.Battered Woman Syndrome has an important and an appropriate place in psychology and in our legal system, however it is important that it not be diminished by permitting one incident of violence to make it relevant.If this case does in fact go to the State Supreme Court, we may well get some settled law in this area.It is my belief that the Court of Appeal decision should be and will be sustained.


Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth.Mr. Unger writes a bimonthly column on legal and psychological issues.†††††††