(concurring in part and dissenting in part).
Justice Henderson has written his usual excellent majority opinion.1 I dissent therefrom on only one issue.
An ultimate issue is an issue of fact that the jury must decide, “such as whether a defendant possessed the culpable state of mind that is an element of the charged offense. The ‘ultimate issue rule’ prevents a witness from expressing an opinion on one of the ultimate issues to be decided by the trier of fact.” McCormick on Evidence § 12, at 30-32 (3rd ed. 1984).
South Dakota retains the ultimate issue rule (as the “Ultimate Fact Doctrine”) and does not permit an expert witness to express an opinion upon the ultimate issue, *11holding it usurps the province of the jury. State v. Werner, 482 N.W.2d 286, 291 (S.D.1992); State v. Hill, 463 N.W.2d 674, 677 (S.D.1990). Although South Dakota adopted the Federal Rules of Evidence as they existed in 1978, Rule 704, which permits such opinions, was specifically excluded. “South Dakota is the only state that declined to adopt any version of Rule 704[.]” 2 Gregory P. Joseph & Stephen A. Salzburg, Evidence In America: The Federal Rules In The States, ch. 53, 1 (1987).
When Logue was decided in an opinion authored by this writer, we followed State v. Jenkins, 260 N.W.2d 509 (S.D.1977), and took into consideration this State’s rejection of rule 704 and adhered to the ultimate issue rule. State v. Logue, 372 N.W.2d 151 (S.D.1985). In Logue, we cited authority criticizing the ultimate issue rule but did not overrule it. We may have modified it in Bachman without expressly saying so; South Dakota permits psychiatric opinions in criminal cases where mental illness is pled as a defense. State v. Bachman, 446 N.W.2d 271, 275 (S.D.1989). Generally, however, we have continued to follow the rule.
In my opinion, we should abolish the ultimate issue rule and adopt Federal Rule 704 or something similar. I realize the committee who modified the Federal Rules for adoption by this Court felt otherwise, but fourteen years have passed, the law grows, changes and hopefully we all become wiser. Adoption of the rule should only take place after notice to the members of the State Bar for their comments and input.
In Owen, Chief Justice Miller advocated abandoning an “archaic,” “obsolete” rule “out of the middle ages” and “adopting an approach which best suits modern times.” Owen v. Owen, 444 N.W.2d 710, 714-17 (S.D.1989) (Miller, J., concurring specially to advocate abandonment of the lex loci delicti rule to determine conflict of laws questions).2 In the words of Chief Justice Miller: “The underlying rationales for the rule, when put into practice, are simply not advanced, thus there is no reason to preserve it.” Owen, 444 N.W.2d at 715. So it is with our failure to abandon the “Ultimate Fact Doctrine” and adopt a version of Federal Rule 704.
The fact South Dakota is the only state refusing to adopt a version of the rule should teach us something. The rule does not work in practice: it is difficult to distinguish between ultimate and non-ultimate facts; it causes needless confusion in trying to separate matters of law and fact; a witness may have great difficulty expressing an opinion without using an ultimate fact; the rule is often simply ignored in practice; and finally, an expert cannot usurp the province of the jury because the jury is always free to ignore the expert.
All modern authorities criticize the rule prohibiting opinions on ultimate issues as being archaic. In discussing the logic of a witness “usurping the functions of the jury” Wigmore states: “the phrase is so misleading, as well as so unsound, that it should be entirely repudiated. It is a mere bit of empty rhetoric.” 7 John Henry Wig-more, Wigmore On Evidence § 1920 (Chad-bourn rev. 1978). McCormick discusses the problems inherent in applying the rule:
This change in viewpoint concerning ‘ultimate fact’ opinion resulted from the fact that the rule excluding opinion of ultimate facts is unduly restrictive, with many possible close questions of application. The rule can often unfairly obstruct the presentation of a party’s case, to say nothing of the illogic of the notion that opinions on ultimate facts usurp the function of the jury. In jurisdictions in which the prohibitive rule is retained, there [are] difficult and confusing questions whether an opinion concerns an ultimate fact.
1 McCormick On Evidence, § 12, 48-49 (4th ed. 1992). Discussing the advantages of Rule 704, Weinstein states:
It eliminates quibbles over the meaning of ultimate fact, and the distinction between fact and law. Abolition of the rule ends the spectacle of courts endorsing a principle which they cite only as a - *12precursor to applying an exception. It stops the resort to indirect means to bring the prohibited matter to the jury’s attention, and most importantly, it allows the jury to receive the full benefit of a witness’ judgment.
3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence, ¶ 704[02] (1992). Professor John Larson, South Dakota’s own outstanding authority on evidence, has criticized our rejection of Rule 704:
The South Dakota Supreme Court adopted verbatim the first three sections ... 701 through 703 ... thereby further supporting the overall philosophy of liberalizing and broadening the common law evidentiary rules in favor of the admissibility of evidence. Unfortunately, it rejected the balance of the more modern federal article in favor of existing practice ... the rejection of FRE 704 has resulted in irreconcilable confusion in the decisions since that time_ South Dakota would do well to avoid further confusion on this issue by adopting FRE 704, thereby placing ultimate issue testimony in this state in the mainstream of modern thought on this subject. At present, the treatment of the subject is totally inconsistent.
John W. Larson, South Dakota Evidence, §§ 700.1, 704.1[3] (1991).
Judge James Adams, former Dean of the University of South Dakota School of Law, recommended adoption of FRE 704 in 1979, just one year after we failed to include it with the newly adopted evidence rules based on the federal code.3 Christine Hutton, a Professor of Law at the University of South Dakota, pointed out this court’s rulings on ultimate evidence often reach contradictory results and cannot be reconciled.4
I strongly urge adoption of Rule 704 and abandonment of our obsolete “Ultimate Fact Doctrine.” It would simplify the hard work of trial judges, remove the embarrassing inconsistencies in our decisions and clarify the law for,the Bar.
Having advocated changing the South Dakota rule on the ultimate issue, I now claim the proposed testimony of Doctor Fairbairn and Carol Maicki as to whether Defendant Burtzlaff was, in fact, suffering from battered spouse syndrome was not a question on the ultimate issue. The ultimate issue was whether Burtzlaff, without the justification of self-defense, was guilty of one of the criminal charges against her — not whether she was a battered spouse. Burtzlaff could have been suffering from the syndrome and still been guilty of manslaughter. A battered spouse does not possess a license to kill the batterer — I don’t know anyone who claims he or she does. The diagnosis of battered spouse syndrome is a fact for the jury to consider along with other evidence in the case — it is not the ultimate issue.
While expert testimony explaining the syndrome has been allowed in South Dakota courts, the actual diagnosis that the defendant suffered from the syndrome has been left to the jury to decide. We have competent and intelligent jurors in this state but they are not trained to make clinical diagnoses of mental and physical symptoms. Such a diagnosis is “beyond the knowledge and experience of the average layperson.” Werner, 482 N.W.2d at 291; Hill, 463 N.W.2d at 677. As long as an expert opinion does not go so far as to comment on the mental state of the defendant at the time of the act, it should be permitted. An expert’s testimony that a defendant is suffering from battered spouse syndrome does not invade the province of the jury where the jury is not competent to make that decision.
Historically, women have been unprotected from violence by laws and custom. Even the Bible provides that a husband shall have dominion over his wife. Genesis 3:16. At English common law, a woman had few property rights. She had:
*13[No right to] sue or be sued, and was considered a single legal entity with her husband, that is, his property. During this time, wife beating was an accepted practice. Consider the common law “Rule of Thumb” in England, in which the man was allowed to beat his wife with a rod “no thicker than his thumb.” This rule was considered moderate at the time because it imposed restrictions on what a man could do in his own home.
Joy Hannel, Note, Missouri Takes a Step Forward: The Status of “Battered Spouse Syndrome” in Missouri, 56 Mo.L.Rev. 465, 468 (1991). This court recognized the inferior position women had occupied in the law when it stated:
By primitive law, the only member of the family deemed to be harmed by an unjustifiable disturbance of family relations was the family head. [Citations omitted.] Under this primitive and Blackstone’s common law the wife was regarded as a chattel, or a servant, who owed her service to her master, her husband, and she could not sue for any injuries sustained by her, as an individual^]
Hoekstra v. Helgeland, 78 S.D. 82, 85, 98 N.W.2d 669, 670-71 (1959) (recognizing a wife’s right to recovery for loss of consortium for injury to her husband). For too long, domestic violence was considered a family matter where law enforcement and the courts had no business.5
Fortunately, our society has changed its primitive attitude. In 1887, the legislature of Dakota Territory recognized women as separate legal persons:
“From and after the passage of this act, women shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man; and for any injury sustained to her reputation, person, property, character or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his name alone[.]”
Hoekstra, 78 S.D. at 95, 98 N.W.2d at 675-76, (quoting Territorial Laws of Dakota, ch. 98, § 1 (1887); Compiled Laws of Dakota, Civil Code, § 2600 (1887)). The current laws of this state contain an entire chapter on protection from domestic abuse. SDCL ch. 25-10. Women are no longer considered the chattel or servants of their husbands but equal persons entitled to the protection and benefit of the law.
The law in South Dakota requires a person to reasonably perceive himself or herself to be in imminent danger before an act is considered self-defense. SDCL 22-16-35. The ultimate issue here was not whether Burtzlaff was a battered spouse but whether she was guilty of murder or manslaughter without the justification of self-defense. Dr. Fairbairn should have been able to give his diagnoses of Burtzlaff as a battered spouse. Carol Maicki should have been allowed to testify as to her belief that Burtzlaff was a battered spouse. The jury was free to ignore their testimony. Even if the jury believed the experts, it might have convicted Burtzlaff if it found she did not reasonably perceive herself to be in imminent danger at the moment she acted.
Expert testimony that the Defendant was diagnosed as suffering from the syndrome was necessary for the jury to fully consider the battered spouse defense. In my opinion, the trial judge erred in sustaining the state’s objections to the expert’s testimony as to whether or not Defendant was a battered spouse. Therefore, I would reverse on this issue.
. Justice Frank Henderson is the senior member of this court and is nationally recognized for his excellent and often colorful writings.
. At that time, he was an Associate Justice of this court.
. James R. Adams, The South Dakota Evidence Code ...A Giant Step?, 24 S.D.L.Rev. 1 (1979).
. Mary Christine Hutton, State v. Logue: Ultimate Issue Testimony in the Absence of A State Equivalent to Federal Rule 704, 30 S.D.L.Rev. 530, 537 (1985).
. L. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds 236-37 (1989); A. Browne, When Battered Women Kill 4 (1987); Fargher, Police Response to Violence Against Women in the Home, in Private Violence and Public Policy: The Needs Of Battered Women And The Response Of The Public Services 110-124 (J. Pahl ed. 1985).