concurring.
The prosecutor specifically conceded that Ms. Costello, the expert witness, stated that she could not venture an opinion as to whether Ms. Carnahan was a victim of physical violence. To the extent, therefore, that Costello’s testimony could be construed as indicating such fact, it would be error to allow it to be considered by the jury. It is clear, however, that the Costello evidence was introduced solely to explain why a woman like Carnahan might, as did Ms. Carnahan, refuse to press charges or might deny that a battery ever took place. In other words it bears upon her credibility with respect to her denial of the battery. For this reason I can agree with that portion of the majority opinion which distinguishes Steward v. State (1995) Ind., 652 N.E.2d 490, upon grounds that in Steward, the expert testimony “was not offered on the issue of the child/witness’ credibility, but rather, was offered to prove that a child had been abused.” Op. at 1167.
However, in many, if not most, cases, BWS evidence is just as susceptible to misuse and misinterpretation as is the child sexual abuse syndrome evidence discussed in Steward v. State, supra. Other than in self-defense cases, the evidence will most likely come in under the guise of explaining the victim’s behavior, e.g., why she kept going back to the abuser; why she now denies that abuse took place, etc. But in reality the tendency is to take that evidence and to conclude that because the alleged victim fits the profile of a battered woman, it is more likely than not that she was the victim of a battery with reference to the charged crime. It is this danger which Steward v. State cautions against and seeks to prevent. Accordingly, I would limit BWS evidence in much the same way expert testimony is limited in child abuse cases.
In this regard I fail to distinguish between child sexual abuse syndrome evidence and battered women syndrome evidence with regard to whether the concepts are scientifically valid and as to whether the evidence is likely to assist the trier of fact is assessing the issues of the case, so long as the evidence is not used to imply that the alleged act took place.
Subject to these stated concerns, I concur.