Professional Documents
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January/February 2012 L-D Domestic Violence
Planet Debate
January/February 2012 L-D Domestic Violence
Planet Debate
January/February 2012 L-D Domestic Violence
Planet Debate
January/February 2012 L-D Domestic Violence
**AFFIRMATIVE**
Planet Debate
January/February 2012 L-D Domestic Violence
the women in prison for murder or manslaughter killed partners who physically assaulted them, most in
direct retaliation or to protect themselves and/or a child. Data from 1992, meanwhile, shows that one-third of all
female murder victims over age fourteen were killed by intimates, such as boyfriends, spouses, or exspouses. In the civil arena, all but two states have passed legislation recognizing the importance of domestic violence in custody
disputes.
Planet Debate
January/February 2012 L-D Domestic Violence
Planet Debate
January/February 2012 L-D Domestic Violence
gay men have become two to three times more common than they were prior to 1988.
Impact on Children. Violent juvenile offenders are four times more likely to have grown up in homes where
they saw violence. Children who have witnessed violence at home are also five times more likely to
commit or suffer violence when they become adults.
Impact on Health and Social Service. Women who are battered have more than twice the health care needs and
costs than those who are never battered. Approximately 17 percent of pregnant women report having been battered, and the results
include miscarriages, stillbirths, and a two to four times greater likelihood of bearing a low birthweight baby. Abused women are
disproportionately represented among the homeless and suicide victims. Victims of domestic violence are
being denied insurance in some states because they are considered to have a pre-existing condition.
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January/February 2012 L-D Domestic Violence
In certain counties, state's attorneys refused to file acquaintance-rape cases "because they
[felt] convictions [were] unlikely." n139 Police sometimes required that a victim pass a polygraph exam before they would pursue her allegations.
Even when charges were brought, rape prosecutions did not fare as well as other prosecutions in state courts. "[A] rape case is more than twice as likely to be dismissed as a
murder case, and nearly 40 percent more likely to be dismissed than a robbery case." While "69 percent of suspects arrested for murder are convicted of murder, and 61 percent of
arrested robbery suspects are convicted of robbery," less than half of suspects arrested for rape are convicted of rape. n142 These discrepancies can be attributed to deep suspicion
of victims' credibility and victim blaming attitudes unique to crimes against women. Judges and juries require more corroboration from rape victims than from victims of other
crimes, and trials often focus on the behavior of the woman, instead of the actions of her assailant.
Some examples will make the statistics more poignant. One probation officer questioned whether a nineyear-old girl was a "real victim," because he heard she was a "tramp." A judge stated at a hearing that a
victim of domestic violence "probably should have been hit." Finally, a prosecutor "badgered a 15-yearold: 'Come on, you can tell me. You're probably just worried that your boyfriend got you pregnant, right?
Isn't that why you're saying he raped you.'"
Congress had this record of state refusal and inability to protect women from violence before it when VAWA was passed in 1994.
State government had failed to protect the social liberty of women in the most basic sense, and the federal
government attempted to step in. Morrison, however, held that this was beyond the reach of congressional
power. Thus, because State governments would not adequately protect the social liberty of women, and the federal government was
prevented from doing so by the negative restraints on its legislative authority set forth in Morrison, government failed to adequately
protect women from deprivations of basic social liberty.
limited their representation, particularly in the order of protection context, which often is the survivor's first
point of contact with the justice system. The 1980 Legal Services Corporation ("LSC") Annual Report states that 0.8% of the
caseload handled by the LSC concerned domestic violence. Other cases, such as divorce matters, have a domestic violence
component, yet tracking these cases is difficult because LSC historically has not kept statistics on which cases in other categories also
involved domestic violence.
Big city legal services programs , in particular, have been inactive. In New York, few legal services programs
perform any domestic violence work. In Miami, the legal services program does none. In Philadelphia, a
recent law graduate on a fellowship coordinates that program's domestic violence legal assistance efforts.
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Second, women's self-defense work stresses the importance of assessing the woman's decisions and actions
from the perspective of someone in her position. That is, it urges that the defendant's conduct be judged
against an individualized standard of reasonableness in which the fact finders ask themselves whether an
ordinary person "in the shoes of the defendant" could have reacted as she did. The so-called "objective" test of
reasonableness, which courts sometimes tell fact finders to employ in evaluating the defendant's reactions, directs the fact finders to
assess the defendant's situation from the perspective of an average person drawn from the general population. The "objective"
test, therefore, is a bed of Procrustes that directs fact finders to ignore the special attributes of the
defendant-such as a post-traumatic stress disorder or an enhanced capacity to predict the behavior of her
partner-which she developed from her history of abuse.
GENDER BIAS AND FAILURE TO RECOGNIZE SYSTEMIC NATURE OF DOMESTIC
VIOLENCE IMPAIRS EFFECTIVENESS OF COURTS
Weissman, Associate Professor of Law at UNC Law School, 2001 (Deborah M. Weissman, GenderBased Violence as Judicial Anomaly: Between The Truly National and the Truly Local, 42 Boston
College Law Review 1081 (September 2001)). p. 1123-5
The power of bias may also insinuate itself in the invocation of neutral rules which are implemented
according to values and assumptions of the judge, but which are often injurious to battered women. Legal
procedures that appear objective and neutral are neither, when the biases harbored by a judge are infused in their
application. Judges who do not understand that abusive behavior is a dynamic with connected and controlling characteristics, and not
isolated instances of assault, may apply the evidentiary requirement of relevancy in a fashion that precludes
women from testifying about their history of assaults. Judges thereby focus on an incident of alleged physical harm and
limit testimony and evidence to a specific event or to incidents which are closely related chronologically. This is particularly
problematic if the most recent episode, prompting the request for relief, is not the worst episode a woman
has endured. Thus, if a woman waits to seek relief until a subsequent assault--one that does not produce injuries or does not rise to
a sufficient level of outrage in the judge's perspective--she may be denied that relief because she is precluded from testifying about a
prior, more violent course of conduct she has experienced.
The result is a fragmentation of testimony which distorts stories in ways that negate the experiences of
battered women and deny a more complete understanding of gender-based violence. Without evidence
documenting the history of violence and the connections between emotional abuse, threats, and physical
harm, patterns of domestic violence rarely will be discernible . Furthermore, important connections between battered
women themselves remain obscured, impeding the recognition of domestic violence as a public problem with larger social
implications, and confining it to individual idiosyncrasies without larger meaning.
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administrative adaptations, shaped by a discourse and practice that devalue these claims, may diminish the
effectiveness of recourse to the court system even as that system attempts, in good faith, to respond to the
growing number of domestic violence litigants. Similarly, lawyers who handle domestic violence claims may unwittingly
conform their conduct and practices to the constricted culture of domestic violence law, thereby contributing to and reinforcing it
unintentionally.
These cultural practices may be insulated from correction by their very consequences within and outside
of the judicial system: The subordination of domestic violence in the courts prevents education of the trial
judge, who hears, at best, a disaggregated version of events. When civil domestic violence proceedings are limited at
the trial level, so too are the opportunities for a transformation in the law that might occur if these claims were allowed to be presented
fully, for the development of appellate law is hindered as well. The result is that individual cases may be predictably doomed, and
there is diminished hope of elevating domestic violence cases, as a group, to the class of respected legal claims. At the same time, in
and out of the courts there is evidence of a backlash toward battered women based on a perception that they have an unfair advantage
and play on public sympathy. Moreover, increased attention to domestic violence has resulted in unfounded
assumptions about progress in the courts and has produced skepticism, if not outright denial, that serious
problems persist, making needed reforms all the more difficult to achieve.
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batter; or will we at most just excuse the act as one for which she should not be held responsible for
murder? If we are prepared to justify lethal force used by an abused woman against her abuser, then selfdefense should be seriously examined and refined to allow it to be presented and to operate as a complete
defense in these cases. As our review of the cases reveals in the material that follows, self-defense often does not operate
successfully in abused women cases because it is simply presented in its most traditional form. That form does not allow the use of
lethal force inflicted on an abuser under the conditions in which battered women typically defend themselves.
The justification/excuse distinction has been blurred in trials of battered women because most of them have arisen
in the context of Battered Woman Syndrome. Self-defense is really a justification defense, but reliance on Battered
Woman Syndrome tends to present the lethal response to battering more often as an excuse , an attempt to
explain why a battered woman should be excused from the legal consequence of homicide.
Since self-defense is really more than an excuse, since in its historical and theoretical development it really is a
justification, any approach that leans toward only excusing the conduct often falls short of persuading the
trier of fact that self-defense applies. The approach taken here, however, is one that places the homicidal act in a broader
context that is more likely to illustrate that the homicide was actually committed in self-defense, and hence was justified. In this
respect, our approach addresses the justification of the act in a fashion more true to the underpinnings of the
defense. This theoretical approach to understanding battering as a slow homicidal process promises to advance self-defense as a
viable defense for battered women, especially in nonconfrontational cases.
JUSTIFICATION DEFENSES LIKE SELF DEFENSE SAY THAT THE CONDUCT WAS
JUSTIFIED AND THE ACTOR BEHAVED IN A RESPONSIBLE MANNER
Anne M. Coughlin, Law Professor-Vanderbilt Law School, 1994, Excusing Women, California Law
Review, 82 Calif. L. Rev. 1, p. 13-4
Scholars often look to the field of criminal defenses, particularly excuses, for help in characterizing the model
responsible actor. The defenses that excuse an actor who has violated the criminal law are distinct from
those that justify misconduct in a way that is said to make the excuses the most helpful source for critics intent on delineating
the responsible actor. A plea of justification claims that the act was right or, at least, legally permissible, while a
plea of excuse concedes that the act was wrongful, but claims that the actor should not be blamed for it. In
this way, a justification defense directs our attention to the propriety of the act in the abstract, while an excuse
defense focuses on whether the personal characteristics of the accused support his plea that he may not
justly be held responsible.
Although the academy has not relied heavily on the law of justification when exploring issues of responsibility, justification defenses
nevertheless reflect the criminal law's model of the responsible actor. Justification defenses powerfully imply that normal
actors, even under the most deadly circumstances, possess the capacity for rational choice. In a case
involving the justification of self-defense , for example, a judgment that the force exerted against an aggressor
was justified announces that ex ante the accused, though subject to the tremendous pressure of what he believed might be
impending fatal harm, was able to exercise self-control sufficient to properly gauge the strength of the forces
arrayed against him and to extricate himself in a manner that inflicted the least overall costs . The actor who is
preparing to fend off an attack must calibrate his response by reference not only to his own rights, but also to the interests and
capacities of his attacker. Not surprisingly, given the ineluctability of the adversarial forces arrayed against the actor, George
Fletcher characterizes justification defenses as expressing the ideal of self-regulation . By finding that
a
defendant's conduct was justified, the decisionmaker not only announces that no wrong was committed, it
also expresses its confidence in the actor's capacity to behave responsibly in the future.
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An excuse obtains if the defendant's conduct was objectively wrongful, but the defendant was not a
responsible moral agent. Infancy and legal insanity are classic examples of excuses . Suppose, for example, that a
citizen suffering from a severe mental disorder delusionally believes that a federal officer in pursuit of her official duties is really part
of a homicidal conspiracy to kill her and kills the officer in the delusional belief that she needs to do so to save her own life. In such a
case, the defendant's conduct is wrong -- there is no justification for killing the officer -- but her nonculpable irrationality marks her as
a nonresponsible agent, who does not deserve blame and punishment. Legal insanity would provide her with a doctrinal
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teleological moral theories identify the right act as that act that is such that no available alternative is
superior. Justification defenses that identified the right act in this sense would provide the ideal guidance Fletcher seeks in that they
would direct the individual toward the best action in the circumstances.
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The claim against subjectivity typically made by the objectivist--that it contradicts established law--simply
dissolves once we consider provocation. Writing (quite sympathetically) of the disturbing events that led Judy
Norman to kill her husband, George Fletcher complains that Norman "put herself in the position of judge and
executioner," imposing a "death penalty" that no authority would have imposed. He concludes: "there may be justice in his dying,
but it is not a form of justice that the legal system can readily accommodate." The very same arguments, however, might be
said of Kenneth Peacock. When Kenneth Peacock found his wife in bed with another man, he got his
shotgun and scared his rival off; several hours and a gallon of wine later, Peacock shot and killed his wife.
Certainly, Peacock acted as "judge and executioner." We could insist, with even more fervor than Fletcher, that one
does not deserve the death penalty for having sex with another. The only thing that we could not conclude
is that the legal system cannot readily accommodate this kind of justice: provocation claims of Peacock's
variety are an everyday affair, sanctioned in many states and by the criminal law academy. Subjectivity is
neither new nor foreign to what most consider well-established and, for that reason, "objective" criminal law.
this is not only a claim that she should have left her husband, but also that she failed to defer properly to the
state (by choosing lawful alternatives). Similarly, the judgment of the court in Peacock is not only that he was
"right" to punish his wife but that he was right--did not offend the state--by "taking the law into his own
hands." Watson is a traitor and Peacock is a loyalist because the state measures allegiance by reference to
relational norms. The common law's overt judgment that a woman who kills her husband is fully traitorous,
and a man who kills to defend his marriage is partly patriot, remains two hundred years later . Time
transforms self-defense into a woman's treason; man remains aligned with the state. Blackstone: meet Catharine
MacKinnon.
If what is wrong with the law, for women, is the law's lack of sensitivity, its failure to sympathize, women's claims may be true but
they will fail to persuade. If subjectivity simply means that "my view counts, yours doesn't," it is as intolerant as an empty objectivity;
it can never go beyond an "apprehension of the world as self-evident" and risks becoming the privileged knowledge of a special body
of the clairvoyant. It is not sympathy that is required but humility (from both men and women), a recognition of the
ways in which the law absorbs and constitutes popular norms that it does not disclose and may even
disavow.
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Law Governing Domestic Violence Victims who Kill Abusers is Structurally Biased
Against Women
LAW HAS HISTORICALLY BEEN BIASED AGAINST ABUSED WOMEN WHO FIGHT BACK
Mira Mihajlovich, JD Candidate, 1987, Does Plight Make Right: The Battered Woman Syndrome,
Expert Testimony and the Law of Self-Defense, Indiana Law Journal, 62 Ind. L.J. 1253, p. 1256-7
As demonstrated, the number of wives killing husbands is low. Yet the law never has sympathized with abused wives
who fought back. This attitude was well articulated by the eighteenth century jurist, Sir William
Blackstone, who theorized that a husband killing his wife was comparable to killing a stranger; but a wife
killing her husband was comparable to killing the king and committing treason. Vestiges of this
anachronism remain, keenly evident in the disparity of media coverage of battered women who kill their male abusers and
batterers who kill their female companions. The "newsworthiness" of the trials of battered women who kill as
opposed to the killings of battered women is rather like the old adage that when a dog bites a man, that is
not news; but when a man bites a dog, that is news
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cigarettes, and hairbrushes. A woman who uses a gun or knife in response to such an assault may appear to
use disproportionate force, and may be prevented from arguing self-defense. The traditional concept of self-defense
does not recognize that hands, fists, and feet, not to mention various household objects, may indeed be deadly weapons when wielded
by an enraged man who is much stronger than his victim. Moreover, although many states are moving away from per se rules
prohibiting the use of a weapon against an unarmed aggressor, judges, juries, and prosecutors may retain traditional attitudes.
Second, self-defense may be invoked only when the actor reasonably believes that the threatened harm is
imminent. This requirement poses the greatest problem if the defendant acts when the abuser is not an immediate threat,
such as when he is sleeping (i.e., so-called "nonconfrontational" situations). To require a battered woman to wait until the
attack begins, however, may ignore her experience in the relationship. For example, the woman may be aware of preassault symbols, such as heavy drinking, that would not signify imminent danger to outsiders. In fact, the battered woman faces almost
the exact opposite of the traditional sudden attack: "the question is not whether he will beat her up again but when, and not whether he
will injure her but how badly or whether he will kill her this time." A court that allows the jury to consider past events as part of the
circumstances of the killing, rather than focusing solely on the moment of the killing, will be more open to battered women's selfdefense claims.
Traditional self-defense doctrine required the defendant to retreat from the encounter prior to using deadly force, unless the attack
occurred in the defendant's home (the "castle doctrine"). However, many jurisdictions invoked exceptions when the aggressor was a
cohabitant or had permission to be in the defendant's home, which clearly work against a woman who is beaten by her husband or
live-in companion. In addition, particularly at the trial level, the legal requirements of the duty to retreat are often
conflated with the question of whether the woman could have "retreated" from the relationship itself. A
court must be able to separate any applicable duty to retreat from the broader (and usually irrelevant)
question of "Why didn't she leave?"
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the evidence of BWS because they believe it impossible that a woman who killed her abuser acted
reasonably. Thus, even where BWS should have been available to a defendant, a judge may, in his or her
discretion, refuse to admit it.
Even if a judge admits evidence on BWS, a narrow interpretation of the self-defense theory may preclude the use of
BWS for some women. There may be a technical immanency problem. While some courts accept that immanency
need not equate with immediacy, others have rejected evidence of BWS where the abuser was asleep or the battered woman hired a
third party to commit the crime. Moreover, deadly force may be seen as an unreasonable and thus unjustifiable
response to a non-deadly threat. That is, using deadly force against an abuser who attacks with his fists, makes verbal threats
or is sleeping may be seen as excessive and, therefore, unreasonable.
are motivated to exert lasting control over them. They are rarely equally matched physically with their
batterers and tend not to compete well in an unarmed fight. They often cannot evade a man posing a threat
to them; attempted retreat is more likely to escalate than end a conflict. Successful escape from the batterer
may come at enormous personal cost, as their physical and financial security and that of their dependents
may rest with him.
The significance of these distinctions is that the law poorly accommodates self-defense in the situations in which
women are most likely to require it. A woman's trigger for self-defense is usually not a stranger pointing a
gun at her or a combatant brandishing a broken bottle, but an intimate who may - often abruptly - exert violent
control over her. His initial unarmed attack may leave her unable to stave off escalating physical torture . She
cannot remove the threat by surrendering a thing of value; she is generally pursued and punished if she retreats . She is
not a voluntary participant in a fair fight; she is involuntarily the object of another person's desire to control her. She breaks
the law by defending herself using perhaps the only means not likely to fail.
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often unable to convince the trier of fact that they had a reasonable belief in the imminence of the danger
and that deadly force was necessary, both of which are required elements for a successful self-defense
claim. Expert testimony on battered woman syndrome provides an explanation of the "reasonableness" of the battered woman's belief
in both the imminence of danger and the necessity of using deadly force.
law since its narrowing in reaction to the closing of the frontier era, have left it woefully unresponsive to
the needs of women defendants. Too often it simply cannot be made to apply to a womans actions
although there is no question that she sincerely believed she was defending herself against death or serious
injury. The result is that women are effectively deprived on the same right to self-defense that men have
always had under the law.
Three aspects of the modern law of self-defense in particular cause problems for women defendants : the
requirement that the threatened harm be sufficiently serious, the requirement that the threatened harm be imminent and,
in many states, the obligation to retreat or seek to escape from an attack before one can defend oneself against it.
SELF DEFENSE LAW DISCRIMINATES AGAINST WOMEN
Cynthia K. Gillespie, Founder-Womens Law Center, 1989, Justifiable Homicide: Battered Women, SelfDefense, and the Law, p. 182
The law of self-defense discriminates against women. The right to take an aggressors life to save ones
own is one of the oldest recognized by Anglo-American criminal law; and it is a right that must, of course, be
carefully limited. It is not in any civilized societys interest to encourage people to take the law into their
own hands or to sanction unnecessary killings. Over the centuries a number of rules limiting the right to selfdefense have been developed which seek to balance the private right against the public order. These rules ,
for the most part, have been written not by legislatures but by judges, virtually all of them male, in cases
predominantly involving male defendants. The result has been a law that permits men to exercise their
right to defend themselves in the situations in which men have customarily felt the need to do so, but it
does not permit women to exercise their right to self-defense in the situations in which they believe they
must do so.
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theories have been slow to expand beyond this implicit scenario to embrace the realities of family violence.
Although self-defense was "one of the first exceptions to the Anglo-Saxon idea that the taking of a life is culpable regardless of the
circumstances," its "basic parameters were established very early and have changed remarkably little." One reason that self-
defense theories have been slow to expand is that life is the most highly venerated and protected right in
society. As a result, legally justifiable homicides have been carefully limited to instances of self-defense, defense of
another, defense of one's own habitation, capital punishment, killing in war, and some killings by police. These exceptions have
been narrowly carved out in an attempt to protect the sanctity of human life and discourage self-help and
personal vengeance.
Abuse-based defenses such as Battered Child Syndrome challenge this system of personal responsibility by
seeking to shift responsibility for a criminal act from the individual to an event or aspect of his or her
environment. This shift requires the law to abandon its credo that "the punishment should fit the crime" and
accept the belief that "the punishment should fit the criminal." These attempts to shift responsibility have
been met with judicial skepticism and social suspicion, yet they present legitimate challenges to the law's
responsibility to punish only those who are culpable for their acts and only to the extent of their culpability .
The challenge for the criminal justice system is to promulgate rules and standards that protect individual rights by promoting personal
responsibility while still providing the abused child who kills a fair trial that properly assesses his or her culpability.
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assault, or because the abuser says something that, in the past, has signaled great danger." The failure of
social service agencies to intervene and the unwillingness of family members to report the abuse also
contribute to the abused person's reasonable belief that his or her life is in danger.
Given the frequent absence of an outward act that causes reasonable belief in imminent harm, Battered Child Syndrome, as a
defense, requires that the law accept an alternative form of "reasonableness" founded in the subjective
beliefs and fears of the abused child, including past abuse at the hands of the deceased.
JUDICIAL OPINIONS EXEMPIFLY BIAS AGAINST SELF-DEFENSE CLAIMS OF CHILDREN
KILLING THEIR ABUSERS
Hope Toffel, JD Candidate USC, 1996, Crazy Women, Unarmed Men and Evil Children: Confronting
the Myths about Battered People who Kill Their Abusers, University of Southern California Law Review,
70 S. Cal. L. Rev. 337, p. 365-6
Several judicial opinions of cases already discussed in Part I above exemplify the biases and stereotypes that
confront battered children who kill their parents. The majority, concurring, and dissenting opinions of State v. Jahnke, are
worth analyzing in greater detail. The majority opinion marginalizes the prior abuse that Richard Jahnke and his
sister suffered by hardly mentioning it. Not surprisingly, the Wyoming Supreme Court affirms the trial court's exclusion of
the battered child expert at Jahnke's trial on the grounds that there was no showing of self-defense. The court is completely
unsympathetic to considering imminent danger from the abused child's perspective and describes selfdefense doctrine in traditional, confrontational terms.
The concurring opinion by Justice Brown vilifies Richard Jahnke: "Appellant is handsome, personable, intelligent and ready of
tongue. He is an all-American boy, except that he has a predilection toward patricide." Justice Brown also focuses on the
immediate circumstances surrounding the killing and ignores the prior abuse: "By no stretch of the imagination was
this a case of self-defense. Arming and barricading himself and lying in wait for one and one-half hours for his father's return is not
self-defense under the law."
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obstacle in framing self-defense pleas for female defendants who have killed violent men," and that the
rule "often has the effect of depriving her of her right to self-defense altogether."
It is the nonconfrontational cases in particular that have received special attention, even though these constitute only a tiny
percentage of the cases in which battered women kill their abusers. In such cases, the woman attacks her abuser while he is
not currently threatening her, indeed sometimes when he is asleep or unconscious. In a case where a woman
kills her sleeping husband, the imminence standard arguably cannot be satisfied as a matter of law: as Richard
Rosen suggests, "the threat of death or great bodily harm was not imminent when [she] shot her husband, not,
at least, by any reasonable interpretation of the word imminent." But the same problem arises in all nonconfrontational
cases, albeit not quite as dramatically. Hence a woman may be precluded from asserting self-defense solely on the
grounds of the imminence rule, even if she satisfies all the other requirements of self-defense, including the
necessity for the use of force. This apparent paradox--how can force be necessary if the threat is not imminent?--has puzzled
many a commentator. But in fact it is no paradox at all: indeed, the very situation is illustrated by the case of Judy Norman.
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required degree of certainty that a defensive act is necessary until the infliction of harm is imminent...
Imminence, like the duty to retreat, is simply a component and corollary of the requirement of necessity" Our legal
tradition has, on this view, mistakenly come to take imminence as a distinct requirement, to the great detriment of battered women.
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Although the general principle of self-defense has remained the same for many centuries, the law has
shown itself to be remarkably flexible. As we have seen, it has changed a great deal in its details in response to societys
needs at different times and places. In the middle ages it was quite unfettered, reflecting the dangerousness of the times and the wide
availability of personal weapons. As England became more urban and orderly, the right to self-defense was gradually narrowed but
did recognize that it was sensible to apply different rules to different self-defense situations (the brawl that turns deadly and the sudden
assault by a homicidal stranger). The American frontier, facing conditions not unlike those of Medieval England, required a swing
back again to a much broader right of self-defense. Since then, the settling of the country, the growth of urbanization, and effective
law enforcement have caused an understandable narrowing of self-defense once again. It is my argument that justice requires a slight
easing of the rules once more to accommodate not new but newly acknowledged conditions.
imminence rule demonstrates that, even as regards battered women, there are strong grounds for retaining
the requirement in its present form. It should go without saying, of course, that to make such an argument is not in
any way to diminish the seriousness of the problem of domestic violence . The very limited issue here is whether the
solution to this problem is the suspension or alteration of the imminence restriction.
The thesis of this essay is that the imminence rule reflects a powerful presumption against the individual using
force in her own protection. Even if one accepts this thesis, however, it is possible to argue that certain individuals are entitled
to a waiver of the imminence rule. For there is an important corollary of the thesis not yet made explicit: if the imminence
restriction is premised on the fact that the state can otherwise provide protection against violence, it follows
that if the state is unable to do so then the imminence rule is suspended. In that case, the right to use
preemptive (or even retaliatory force) could, it might be argued, revert back to the unprotected individual or group.
Hence one way of interpreting (or reconstructing) the position of battered women advocates is that they can
endorse the thesis of this essay, but claim that battered women are not adequately protected by the state, and hence
should be exempted from the imminence rule.
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fringe of a theory's scope typically reveal weaknesses, for theories are designed to deal with the ordinary
situations for which they have been crafted. The inability of traditional self-defense law's to handle
situations where a victim kills a batterer in a non-confrontational situation in a manner that is morally and
intuitively acceptable suggests that a look at its theoretical underpinnings is appropriate . This comment will
focus on whether imminence is a necessary condition in a claim of self-defense or if there are other legitimate ways to prove that a
killing was necessary such that we, as a society, would consider it justified.
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of
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believed by scholars that the "problem" of imminence is one of too much time between the threat and the
killing. If my survey is right, however, most judicial opinions raising imminence do not involve long periods of
time between the threat and the killing. They are cases of weak threats and extended fights, cases in which
the defendant is struggling with the victim, is faced with a gun, believes that the victim is advancing, or
hears a stranger in the woods outside his home. This should confound traditional doctrinal understandings
of the term "imminence" (which presume imminence as relevant only in nonconfrontational "waiting"
cases). Indeed, it presents strong evidence supporting my hypothesis--that imminence carries undeclared meanings.
This has important implications for both the law of self-defense as well as our image of the problem of battered women. The law of
self-defense, if I am right, is far from as settled or coherent as it is assumed to be; its meaning and theory remain, in my
view, largely unresolved. What seems so objective--the status quo--turns out to be a good deal more complex and
contingent than has been assumed. Indeed, it is even possible that the law, through imminence, contradicts itself: for example,
if imminence is really asking whether the defendant had a means to escape the violence, it may function as a retreat rule in
jurisdictions that do not require retreat. What is more interesting is that this failure of objectivity--the potential for contradiction-predicts the possibility of injustice in the battered woman cases.
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condition that is necessary to the maintenance of a regime of private tyranny is that the life of at least one
person who lives or formerly lived in the same household with the tyrant be subject to his domination and
control in respect to such objectively important elements of everyday life that a reasonable member of
society would not ordinarily consent to live under the same terms and conditions and would not view the
consent of any other person to live under such circumstances as a rational exercise of choice. As a matter of
rational reconstruction, then, the structure of private tyranny and its relationship to the concept of consent is
analogous to the much-referenced but little demonstrated example of voluntary slavery. It is not a subject to
which the idea of consent lends any justificatory distinction.
KILLING OF PRIVATE TYRANTS IS MORALLY JUSTIFIED
Jane Maslow Cohen, Professor Boston University School of Law, 1996, Self-Defense and Relations of
Domination: Moral and Legal Perspectives on Women Who Kill: Regimes of Private Tyranny, University
of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 757, p. 757-8
The claim I write to advance is, on first encounter, a claim about moral judgment. It is that the killing of a private
tyrant is, at times, a morally justified act. Later, I shall put what I take to be the more vexatious case: that tyrannymurder should sometimes be treated as a justified act under the criminal law . Within my account, it will become
clear that I intend such acts to be understood as both deliberate and rational, not, among alternative premises, as suddenly provoked or
the product of rationality overturned. The full logic of my position is that these killings should be a matter of neither
culpability nor excuse and that, because we should regret their necessity more than their occurrence, the actor should go free.
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The moral foundation on which my claim rests is this: Public regimes of tyranny are humanly intolerable
and radically unjust. Consent does not maintain them, and the coercion necessary to replace consent must be made an operative
condition of people's lives. Coercion must therefore be fashioned into a set of devices that have reliable deterrent
strength. It must convince the subjects of the regime that freedom is unredeemable at any price that they can
afford to pay. Torture, surveillance, arbitrary invocations of authority, imprisonment or death for any
infraction or supposed infraction against the power of the regime-all these become the devices through which
the forces of deterrence against personal and collective freedom are maintained.
For the victims of tyranny, life under these regimes approaches and possibly even surpasses arbitrary death; it is,
in fact, a kind of death, the death of the soul. So evil are these regimes for what they take away from the
capacity to lead good lives that the moral permission that people have to liberate themselves from public
tyranny does not suffer the slightest revocation if the killing of the tyrant is its cost. Morally, his death may
be a misfortune but it has no effective cost.
TYRANNY-MURDER JUSTIFIED BECAUSE IT IS A MORALLY LEGITIMATE RESPONSE TO
THE TYRANTS ACTIONS
Jane Maslow Cohen, Professor Boston University School of Law, 1996, Self-Defense and Relations of
Domination: Moral and Legal Perspectives on Women Who Kill: Regimes of Private Tyranny, University
of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 757, p. 793-4
So much for moral forfeiture in the case of the private tyrant. The question remains, what is the moral status of a
subject of the regime who commits a tyranny-murder? When she cannot otherwise reasonably expect to
save her own life or that of others-those as or more vulnerable than she-or reasonably expect to secure her own or their freedom
and security, we should be prepared to wash her clean. The reason may sound as much in rational choice theory as in
traditional morality. It is this: Once a regime such as I have described clamps down on a life, the most crucial of its
attributes-freedom, personal safety, and on-goingness itself-are placed at deliberate risk. As I stipulated at the outset,
the consent of no one to such an arrangement should we take as binding, both because we cannot assume the consent to be voluntarythe epistemic problem, once again-and because we should not, as in the case of "voluntary" slavery, proffer the community's
benediction, whether the consent be voluntary or not. If this is so, then it cannot be morally objectionable for the
individual who has intentionally and unilaterally created these risks to find himself at risk. This dreadful state
of equivalence is the residue of his own acts, his will, his purpose. Which of these two should then suffer the
greater risk, the subject of the regime or the tyrant? What rational moral regime could prefer the tyrant?
None, it seems to me.
It would seem both just and proper for the criminal law to align itself with this moral stance.
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reasonable options, the single victim of public tyranny is surely entitled to free herself by force, and if
necessary, to kill with equal justification the tyrant or his agent. Each life within the tyrant's regime is a
sufficient measure of moral desert: the justification of individual freedom does not depend on the
aggregate.
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a vigilance committee as "a group of persons organized without legal authorization professedly to keep
order and punish crime when ordinary law enforcement agencies apparently fail to do so." Vigilantism is
thus equated with taking the law into one's own hands. In the context of battered women who kill, vigilante
should be seen as a word connoting justice and empowerment.
VIGILANTISM MORALLY JUSTIFIED METES OUT APPROPRIATE PUNISHMENT
Elisabeth Ayyildiz, JD Candidate Chicago-Kent School of Law, 1995, When Battered Womens
Syndrome Does Not Go Far Enough: The Battered Woman as Vigilante, Journal of Gender and the Law, 4
Am U. J. Gender & L. 141, p. 147-8
Second, a distinction exists between organized and spontaneous vigilantism. That is, for some, organization is an essential part of
vigilantism while for others, vigilantism occurs when "bystanders not only apprehend a criminal but also mete
out punishment themselves." A spontaneous vigilante, thus, may be the actual or potential victim herself. The
battered woman is by definition a victim, one who has not received justice, one who has not seen her batterer
punished for the abuse he has heaped upon her. Thus, by killing her batterer, the battered woman becomes a
spontaneous vigilante - she apprehends a criminal that the law has failed to bring to justice and metes out
the punishment he richly deserves.
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Under social contract theory, if the state fails in its obligation to protect citizens, the government is
considered dissolved and the people are entitled to provide for their own protection. One philosopher concludes
that where the state fails to protect its citizens, protecting oneself is not considered civil disobedience or vigilantism. One may
extrapolate this premise to conclude that vigilantism is morally justified by the state's failure to uphold its end
compact.
of the
If one accepts social contract theory, one accepts that individuals are members of the state and deserve
physical protection. One feminist, however, has argued that women are excluded from the original social contract
since only men consented, or were allowed to consent, to the social compact. Social contractarians such as John Locke and Thomas
Hobbes posited that women were a disruptive influence who could bring about the state's destruction because they were incapable of a
sense of justice. Women, therefore, were subjugated to men since they lacked the capacity, i.e., the sense of justice, to enter into the
social contract, and were thus naturally subversive of the political order. Since women are not part of this social contract,
This absence of any affirmative duty by states to protect individuals against private violence, makes
vigilantism one of the few viable options for victims of domestic violence.
Stories about battered women are replete with failed appeals to police, courts, social service agencies,
churches, friends and neighbors.
Take, for example, Judy McBride, a victim of battering who repeatedly called the police only to be told that they would not get
involved because hers was a domestic violence case. She tried calling a family therapy organization, but the telephone number was not
in service. A Catholic social service group told her to try and work things out with her husband. McBride's husband continued
tormenting her after she filed for legal separation. Ultimately, McBride hired someone to hurt her abuser. The abuser was killed and
McBride was sentenced to life in prison without parole.
The failure of the criminal justice system, where the state does not or will not enforce the law, is one reason
vigilantism continues to garner sympathy from contemporary America . One author notes, "the American
tradition has been for citizens to trust themselves more than they trust the government." Why then is not
this same sympathy extended to victims of domestic abuse who become vigilantes?
One answer may be found in vigilantism's uniquely male tradition. Vigilante groups in the nineteenth century were composed of most
of the adult males in the community, with the wealthiest and most powerful men as leaders. Women, who were not part of the
community's civic life, were not members of vigilante groups. The modern bias towards the acceptance of the
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Accountability is another concern for those opposed to vigilantism. Because it is no mystery who killed
when a battered woman kills her abuser, the battered woman will be held socially, if not criminally,
responsible; she does not escape unknown or unacknowledged . Moreover, the battered woman has already been
punished for years by her batterer. She will continue to be punished for killing her abuser in so far as the stigma, guilt and shame will
haunt her for years.
Racial concerns are similarly not applicable to the battered woman vigilante. While the term vigilantism
connotes the lynch mobs of the South, domestic violence begins and ends with the abuser and the abused. It
may be that there are instances where a white woman kills her black abuser; however, the impetus for most
vigilante behavior is not race but the battered woman's need to save her own life . Indeed, this proposal may
actually help more black women than white since all-white police forces traditionally ignore black-on-black violence. A black woman
may justifiably have less faith in the police than a white woman and may be more justified in resorting to self-help.
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inflicting more or less what the offender deserves." Punishment in and of itself is the end of retributivists;
punishment need have no other benefit, either to the individual being punished or to society. As Herbert Packer
explains, "Man is a responsible moral agent to whom rewards are due when he makes right moral choices and to whom punishment is
due when he makes wrong ones. ... These imperatives flow from the nature of man and do not require - indeed do not permit - any
pragmatic justification." Others argue, however, that retributive theory debases individuals to serve a theory.
The retributive view of punishment justifies the infliction of evil upon a living soul, even though it will do neither him nor any one
else any good whatever. ... It is the retributive theory which shows a disrespect for human personality by proposing to sacrifice human
life and human Well-being to a lifeless fetish styled the Moral Law, which apparently, though unconscious, has a sense of dignity and
demands the immolation of victims to avenge its injured amour proper.
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opens a safe and turns money over to a stranger, we can normally infer that he is dishonest. But if he does
all this at gunpoint, we cannot infer anything one way or the other about his honesty." And if we do not know
what kind of person he is, we cannot blame him. Before we can condemn, therefore, we must conclude that the
defendant's choices were free.
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a
number of different moral justifications for criminal punishment, all resting on the notion that punishment
is necessary to give the criminal what she deserves as a result of her wrongdoing. The notions of criminals paying
for their crimes, paying their debts to society, or getting what is coming to them all grow out of retributive theory. While modern
retributive theory no longer requires "eye for an eye" punishment, it continues to maintain that punishment should
be
proportionate to the crime committed.
"Retributive conceptions of criminal punishment rest essentially on the inherent propriety of punishment as
a consequence of wrongdoing, that is, it amounts to an obligation to be settled in an accounting among the
offender, the victim, and society." While that obligation is at the core of retributivist theory, theorists have posited a number of
different explanations for why that obligation exists. According to Emmanuel Kant, for example, punishment was a
categorical imperative; the imposition of punishment was not just permissible, but morally required simply
because wrongdoing had occurred. Punishment restores the moral balance that is upset when a crime
occurs. John Rawls states, "Punishment is justified on the grounds that wrongdoing merits punishment ."
Others have similarly argued that the punishment negates the wrongdoing, creating the sense that the wrongful act never happened.
Building on this theory, "punishment annuls crime in the sense that it establishes that the victim has ... rights, and hence the criminal's
denial of them is a mistake." Punishment, then, restores the rights intruded upon by the criminal to the extent that
the punishment is commensurate to the amount of intrusion created by the crime.
JUST SOCIETY CAN ONLY IMPOSE JUST PUNISHMENTS REQUIRES DESERT AND
PROPORTIONALITY
Catherine S. Ryan, JD Candidate, 1996, Battered Children Who Kill: Developing an Appropriate Legal
Response, Notre Dame Journal of Law, Ethics & Public Policy, 10 ND J. L. Ethics & Pub Pol'y 301, p.
307-8
A just government rests on the consent of the governed . Thanks to a useful fiction, each person is assumed to
assent to be governed by the laws of his society with the expectation that others will abide by the same laws
and that those who do not will be punished. A further legitimizing feature of just government is that only
those who are deserving of punishment will be punished. Punishment is imposed upon only those who are
culpable for their acts, and that punishment is imposed to a degree commensurate with that culpability.
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social realities surrounding the choice, and the more we refuse to take account of particular attributes of the
person making the choice, the more likely we are to judge the actor's choice free -and vice versa. An
extraordinarily telling illustration of the relation between our evaluation of a person's choice or consent and the amount of information
we have about the context of that "choice" comes from O'Brien v. Cunard S.S. Co., a century-old decision that appears in several torts
casebooks in the chapter on the defense of consent to a claim for battery.
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acquit if it found that, at the time of the offense, the defendant's "mental or emotional processes or behavior
controls were impaired to such an extent that he cannot justly be held responsible for his act." Although Judge
Bazelon did not expect that his new instruction would generate a flood of new acquittals, he hoped the instruction would force jurors
to confront the causes of criminal behavior and thus compel the community to own up to its responsibility for the crime and for the
plight of the accused. In Judge Bazelon's words, "It is simply unjust to place people in dehumanizing social
conditions, to do nothing about those conditions, and then to command those who suffer, "Behave-or else!' "
CONTEXT IMPORTANT TO DETERMINING ONES TRUE CHARACTER KEY TO JUST
ASSESSMENT OF BLAMEWORTHINESS
Jody Armour, Associate Professor of Law-University of Pittsburgh, 1996, Self-Defense and Relations
of Domination: Moral and Legal Perspectives on Women Who Kill: Just Deserts: Narrative, Perspective,
Choice and Blame, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 525, p. 540-1
Professor George Fletcher, a leading exponent of the just deserts school of criminal punishment, offers as sophisticated an
account as can be found of why the law should not recognize a disadvantaged social background excuse. He makes several different
arguments against a social deprivation excuse. He begins his first argument with the now familiar point that legitimate excuses arise
from atypical circumstances that make it impossible for us to infer anything about the defendant's "true character" from his wrongful
act. Then he says that "whether a particular wrongful act is attributable either to the actor's character or to the circumstances that
overwhelmed his capacity for choice" is a question that can be answered in an either/or way. He contends that the problem
with excuses based on social deprivation is that these excuses "interweave" these two distinct ways of
decision to kill under such circumstances as significantly determined and thus partially excused because we
think such circumstances make the ordinary person more likely to kill. Hence, a defendant who appeals to
excusing conditions in his defense does not have to prove that most people who were exposed to those
same conditions would have committed a similar act. All the defendant has to show is that because of those
excusing conditions, the wrongful act does not reveal his "true character."
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the victim because it ignores the batterers initiation of the acute violence and his escalation of the violence
in order to maintain complete control of both the relationship and the victim. Thus, it unfairly portrays the context
of the battering victims survival efforts. To more fairly and completely explore that context, we seek to understand the
cultural, social, structural, and situational forces, as well as the interaction process, that assist the batterer in maintaining the battering
relationship and result in the escalation to homicide.
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inappropriate because the law's failure to treat a woman as an equal by protecting her from past abusers is
implicated in her reaction to her situation. I make no claim that all battered women who kill should escape punishment. I
claim only that pervasive inequalities cannot be ignored if the law is to claim that it is fair .
RECOGNIZING THE UNIQUE CONTEXT OF BATTERED WOMEN AND TAILORING THE
LAW TO IT JUSTIFIED ON EQUALITY GROUNDS
Christine Noelle Becker, JD Candidate, 1995, Clemency for Killers? Pardoning Battered Women who
Strike Back, Loyola of Los Angeles Law Review, 29 Loy. L.A. L. Rev. 297, p. 312-3
While there is no unanimous agreement that battered women who kill are, or should be, legally justified in
their actions, one must admit that such women are in a different position with relation to justice than are
other classes of homicide defendants. The fact that a woman was battered, and the extent and duration of
such abuse, is so relevant that it demands that such a woman receive some sort of specially tailored
treatment from the criminal justice system . The admission of battered woman testimony itself is one such specifically
tailored treatment that demonstrates "an underlying discomfort with not treating battered women who kill in a manner different from
other homicide defendants."
The justifications for tailored treatment of battered women who kill include the fault of society itself in the
creation of the problem of battered women and the historic discrimination against women claiming selfdefense in the criminal justice system. Of course, while not all battered women act in self-defense when they kill their
abusers, a substantially higher reversal rate on appeal is an additional indicator that they are often deprived of a fair trial. Advocates
for battered women are not asking for leniency or a lowered standard, but rather for equal treatment under
the law, which can only be achieved through specialized treatment. While substantive law methods attempt to address
this need for a specialized, tailored treatment, there are many flaws with current methods that can actually work against the women
they purport to help or exclude various classes of women from just treatment.
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women may take the form, not of overt hatred, but of outmoded and archaic views about women's roles and
their relationships to men. See, e.g., United States v. Virginia, 518 U.S. 515, 532-34 (1996); J.E.B. v. Alabama ex rel. T.B., 511
U.S. 127, 135-42 (1994); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982); Frontiero v. Richardson, 411 U.S. 677,
684 (1973)[**41] (referring to Nation's "long and unfortunate history of sex discrimination. Traditionally, such [*25] discrimination
was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage."); see
also Planned Parenthood v. Casey, 505 U.S. 833, 893, 898 (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.) (striking down
spousal notice requirement because it could provoke domestic violence, and perpetuate constitutionally offensive common-law
assumptions about a husband's dominion over his wife).
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Focusing on gender as an excuse for the conduct, rather than gender as the cause of the conduct, helps
avoid the debate about who beats whom more and why. It also suggests that the intractability of domestic
violence as a problem may have as much to do with gender norms as with notions of privacy. Whatever
norm or law tells men that battery is wrong is counteracted by gender norms that reaffirm their right to
control and their partners' duty to obey, just as whatever norm or law tells men that rape is wrong is
counteracted by gender norms that encourage male sexual aggression and limit the range of permissible
female behavior. In order to attack the problem, therefore, the law needs to do more than just label domestic
battery and rape wrong: It has to challenge the constructions of masculinity that excuse them.
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advocates can move beyond the "victim" characterization of battered women to stress the great survival
techniques and efforts such women use to overcome violent relationships. This "survivor perspective"
stresses the agency of battered wives and the complicity of the broader social forces that render their helpseeking efforts ineffective. It is important to link the single abused wife with the broader social context of male dominance to
establish a civil rights violation.
Plaintiffs' lawyers need not revert to the "victim" characterization theories of learned helplessness implicit in efforts to establish
damages in wife abuse civil rights cases. The "survivor" theory provides an alternative damages theory. The
psychological symptoms women experience in the abusive relationship often are temporary manifestations of traumatic shock,
experiences of failure in the "traditional female role of nurturing and domesticity" and an expression of separation anxiety and
reasonable fear of reprisal for leaving. There is a practical legal risk that characterizing battered women plaintiffs as "survivors" of a
system of male domination and wife abuse will not invoke the same sympathy of jurors that the victim characterization promises.
However, exposure of the context of abuse and the struggle to survive may provide greater damage awards because the
characterization is realistic and the effects of the husband's abuse are demonstrably more overwhelming than if the abuse were viewed
in terms of the relationship alone.
To demonstrate the existence of a civil rights violation, as opposed to random violence between two
people, advocates should explore the theory of gendered power relations, the role of wife abuse in
promoting subordination and the way in which violence is used to stifle battered women's assertions of
their rights. It is critical that plaintiffs are not portrayed as submissive victims. "Wife-beating arose not just from subordination
but also from contesting it. Had women consistently accepted their subordinate status, and had men never felt their superior status
challenged, there might have been less marital violence." Civil rights advocates must address the dynamic of power and control in
relationships to explain the empirical evidence that battered women face increased danger with their assertion of rights and
independence from their male partners. When battered women seek a divorce, obtain a restraining order or leave the abusive partner,
they face increased danger because batterers use violence when their dominance is challenged. The term "separation violence" has
been used to mark the abuser's desperate, post-separation assertion of power over the domestic partner who has sought freedom. As
such, separation assault is prime evidence of wife abuse as a civil rights violation.
Of all the civil legal remedies, civil rights concepts are best able to capture and marshall the survivor
theory and the concept of "separation assault" for the benefit of battered women. In the heterosexual context,
domestic violence qua control can be seen as part of the enforcement of gender dominance at home, just as rape serves that function
on the streets and sexual harassment serves it in the workplace.
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bodily harm at the kidnapper's will - even if he thus far neither threatens nor objectively intends to commit
serious bodily harm - and so one may freely exercise one's right to lethal self-defense while one can . This
latter interpretation is more consistent with the Model Penal Code's provision that "use of deadly force is not justifiable under this
Section unless the actor believes that such force is necessary to protect himself against" serious bodily injury, kidnapping, and the like.
The harm kidnapping poses can thus be construed as the imposition of ongoing vulnerability to serious
bodily harm whenever one's kidnapper wishes: It hangs a Sword of Damocles over the victim.
VICTIMS USE OF DEADLY FORCE AGAINST AN INCAPACITATED KIDNAPPER IS JUST
Gregory A. Diamond, JD Candidate, 2002, To Have But Not to Hold: Can Resistance Against
Kidnapping Justify Lethal Self-Defense Against Incapacitated Batterers?, Columbia Law Review, 102
Colum. L. Rev. 729, p. 749-50
How does the imminence element apply to an ongoing kidnapping? Is the crime ongoing, like rape, or exhausted instantaneously at the
moment of asportation, like theft? If the harm a kidnap victim faces is continued vulnerability to serious bodily
harm at another's hands, that threat is always imminent, as the victim has no ability to prevent it. It extends
in time beyond the moment of abduction itself, continually renewing a state of terror and threat . In most
jurisdictions, given an honest and reasonable belief that one must kill one's kidnapper in order to effect
one's escape from the threat of serious bodily harm, one is legally justified in doing so.
No black letter law says that one can or cannot kill one's kidnapper while he is temporarily incapacitated,
but the following scenario suggests that one could: If a woman has been abducted by A and B, who she
honestly and reasonably believes intend to murder her, and A falls asleep while B is absent from the room,
presumably she may kill the sleeping A as part of a plan of escape if she fears that A may otherwise awaken and prevent her
from defending herself against the ambulatory B. This would be so even if A and B had not yet actually begun to
move toward committing the murder. The apparent standard would regard whether she had an honest and reasonable belief
that such force was necessary at that time for her security. If a sleeping A could be killed if doing so is truly necessary
to prevent him from waking and foiling an escape from B, one may fairly suspect that a sleeping, yet
powerfully threatening, A could be killed if doing so is truly necessary to prevent him from waking and
foiling her escape from A himself. No case law appears to address this question. As the next section will discuss, importing
kidnapping law into the debate over self-defense by battered women will solve the problem of justifying force against batterers.
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Laws Governing Kidnap Victims Provide Moral Basis for Deadly Force Against Abusers
MORAL BASIS FOR DOMESTIC VIOLENCE VICTIMS KILLING THEIR ABUSER SAME AS
THAT FOR A KIDNAPPING VICTIM
Gregory A. Diamond, JD Candidate, 2002, To Have But Not to Hold: Can Resistance Against
Kidnapping Justify Lethal Self-Defense Against Incapacitated Batterers?, Columbia Law Review, 102
Colum. L. Rev. 729, p. 756-7
Finally, David McCord and Sandra Lyons argue that the result of Norman was legally defensible but morally
unacceptable. Their analysis forms the foundation for the next Section. They identify ten factors which the Norman court
ignored, as have most other courts applying the traditional law of self-defense to battered women. These factors may be paraphrased
as follows:
KIDNAPPING LAW APPLIES TO BATTERED WOMEN WHO KILL VICTIM HAS THE
RIGHT TO USE DEADLY FORCE TO ESCAPE
Gregory A. Diamond, JD Candidate, 2002, To Have But Not to Hold: Can Resistance Against
Kidnapping Justify Lethal Self-Defense Against Incapacitated Batterers?, Columbia Law Review, 102
Colum. L. Rev. 729, p. 750-2
Still, some cases do exist, though most involve substantial factual disputes as to whether a kidnapping occurred at all. These are the
primary loci which indicate how courts interpret the rules of self-defense in kidnapping, even while generally deciding that those rules
do not exonerate the defendants. In Thomas v. State, the Court of Criminal Appeals of Texas upheld the murder
conviction of a woman who claimed to have been kidnapped and sexually assaulted by a group of four men
in a motel room. Prosecutors asserted that she was a prostitute who, after a failed attempt to coerce them to
pay for her services, ambushed and shot the men as she emerged from the bathroom, killing one. Thomas submitted a
jury instruction clearly eliminating the imminence requirement for a kidnap victim. The trial court adopted
the prosecution's less clear instruction. Thomas argued that "the court's charge was erroneous because it indicated that
appellant was justified in using deadly force only to prevent an imminent rape or kidnapping, but not in order to escape during or after
the commission of such a crime." Rejecting Thomas's argument that the latter instruction did not adequately reflect her theory, the
appellate court said the instruction clearly indicated that Thomas "had the right to defend herself if she were
the victim of such a crime or was about to become such a victim," and that it could not "reasonably be read
as allowing the use of force to escape before, but not after the crime." Thomas therefore lost not because the appeals
court applied an imminence requirement for kidnappings, but because it felt that the trial court had correctly stated that imminence of
serious bodily harm was not required.
The important implication of Thomas is that, notwithstanding the aforementioned debate over imminence
that has bedeviled discussion of battered women who kill, the general question of whether one must face
imminent serious bodily harm before engaging in self-defense has already been resolved. The victim of an
ongoing kidnapping may kill if it is necessary to extricate herself from the threat of harm. She still cannot kill
gratuitously; she must have had an honest and reasonable belief that she could only escape harm by killing. If she can flee in absolute
safety without killing, she must do so.
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Laws Governing Kidnap Victims Provide Moral Basis for Deadly Force Against Abusers
BATTERED WOMEN SHOULD BE ELIGIBLE TO CLAIM THAT KILLING THEIR ABUSER IS
MORAL AND JUST UNDER THE LAWS COVERING KIDNAP VICTIMS
Gregory A. Diamond, JD Candidate, 2002, To Have But Not to Hold: Can Resistance Against
Kidnapping Justify Lethal Self-Defense Against Incapacitated Batterers?, Columbia Law Review, 102
Colum. L. Rev. 729, p. 732
Norman has prompted substantial debate over this issue. This Note presents the novel theory that an existing self-defense
doctrine - governing how victims may react to a threatened or ongoing kidnapping - offers a fair basis for
determining what threshold level of exculpatory circumstances would justify homicides by battered
women. A few scholars have previously stated that some battered women resemble kidnap victims, or have
suggested without developing the proposition that kidnapping law should apply to battered women, or have presented moral
reasons as to why battered women who killed their incapacitated batterers might warrant acquittal , reasons
that in effect liken their status to kidnap victims. This Note fashions these disparate strands into a sustainable legal argument
that some battered women are entitled to kill their incapacitated batterers because by law they should
actually be considered kidnap victims, and offers rigorous criteria for determining whether such action is
justifiable in a given case.
KIDNAPPING ANALOGY PROVIDES BASIS FOR MORAL JUSTIFICATION EVEN IF IT
FAILS AS A LEGAL STRATEGY
Gregory A. Diamond, JD Candidate, 2002, To Have But Not to Hold: Can Resistance Against
Kidnapping Justify Lethal Self-Defense Against Incapacitated Batterers?, Columbia Law Review, 102
Colum. L. Rev. 729, p. 761
Even if a court did not allow a defendant to argue that she was a literal victim of kidnapping, the above
analysis might bolster her moral claim to self-defense by use of that metaphor . This subsection evaluates when
women whose situations meet the elements of kidnapping might successfully claim that they had responded appropriately to literal
kidnapping. The motivational elements from the Model Penal Code are presumably met in most batterings. The "substantial period of
time" requirement is unlikely to disqualify self-defensive actions independently of the "confined in a place of isolation" requirement,
since the definition of the latter determines the extent of the former. The balance of this analysis, then, focuses on whether and when
one can cogently argue that a battered woman has in effect been confined to a place of isolation.
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Despite the fact that the battered woman had made no attempt to leave even during those moments when
her batterer was not in the room with her, the Connecticut Supreme Court reinstated the conviction. It found that
the combination of physical abuse and implicit threats to the victim if she left sufficed to constitute restraint
and abduction, and therefore kidnapping. This would seem, therefore, to justify lethal self-defense, at least
during the three hour course of the beatings.
REALITY OF MANY DOMESTIC VIOLENCE SITUATIONS IS THE SAME AS KIDNAPPING
Gregory A. Diamond, JD Candidate, 2002, To Have But Not to Hold: Can Resistance Against
Kidnapping Justify Lethal Self-Defense Against Incapacitated Batterers?, Columbia Law Review, 102
Colum. L. Rev. 729, p. 760-1
The above elements address the characteristics surrounding restraint, but do not explain what restraint itself constitutes; that is
covered by the less straightforward phrase "confinement in a place of isolation." In essence, this conveys a person
being placed in a physical environment from which she can neither herself escape nor obtain help from
others to facilitate escape. Indeed, these seem like reasonable elements to include in a threshold level of
exculpatory circumstances that would justify lethal force by battered women against incapacitated batterers .
One foundation of this threshold level is that if a woman can escape safely without deadly force, she should. In
practice, this means removal of either the batterer or herself from the situation . But removal of the batterer,
possibly with the assistance of others such as the police, would not yield safety if the batterer would soon be
released and threaten her with serious bodily harm. Furthermore, the batterer may not allow her to remove
herself from the situation. Where a woman can follow neither course, the batterer has in effect confined her,
regardless of whether she is at liberty to travel around town to do chores, or even spend some "free" time as
she chooses. If the batterer always retains the power to bring her back to the situation where she faces
serious bodily harm, including the realistic prospects of rape or even murder, and if her reasonable and
honest belief is that this situation cannot be changed short of lethal force, then she has lost her freedom.
Intuitively, these will be the cases, like Judy Norman's, warranting greatest sympathy.
After all, the question that shapes the debate over battered women, especially
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Zipursky notes that kidnapping is the clearest form of the "nonimminence, no-access [to aid] cases" in
which the "assailant is intentionally trapping the attacked, and a fortiori believes that he is engaging in
conduct that would cause the defendant to believe herself to be trapped"; he adds that "kidnapping cases
often present the most tenable examples of the possibility of justifiable self-defense absent imminence."
Zipursky analyzes the idea only briefly, however, and he does not make the legal claim that, beyond being a useful metaphor, some
instances of battering may in fact fall within the ambit of kidnapping law.
Jane Maslow Cohen takes a stance somewhat akin to applying the model of kidnapping to battering by attempting to justify the killing
of batterers based on a philosophical justification rooted in the killing of tyrannical rulers. Cohen's justification of such
killings, which she bases on the unconscionable denial of freedom accompanying battering, could apply as
readily to a kidnap victim as to a slave or a victim of tyranny. Without engaging the merits of Cohen's proposal, it
seems more likely that judges, juries, and the public would accept a characterization of Judy Norman as the
de facto victim of kidnapping, with the self-defense rights attending such a status, than that they would
agree upon what constitutes private tyranny and label her a de facto slave. The former is more amenable to the
rigorous application of clear defining elements.
One work does anticipate the analysis presented in this Note, but only briefly and without the analytical structure necessary to support
the assertion that many battered women are de facto kidnap victims. Near the end of an excellent discussion of many of the matters
relating to the imminence requirement considered herein, Donald A. Downs and Evan Gerstmann state: "The law of
kidnapping [should] be applied to the domestic sphere. Where a person is being kept against her will by
force and threats, she should not lose her right to defend herself simply because the kidnapper is her spouse
or cohabitant." However, in making this assertion Downs and Gerstmann do not review case law on kidnapping. Nor do they
extensively examine the specific elements of kidnapping as they relate to battered women, factors that might either bolster or vitiate
such a legal defense.
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prejudicial towards the deceased - though perhaps not unfairly so, and perhaps not imputable to the state's
interest at a criminal trial - judges demand that it be sufficiently probative towards some viable theory of
self-defense before allowing it to be admitted. Failing to ground a theory in this way could in effect allow
the jury to consider a vigilantism defense stating that, even if no theory of self-defense is quite appropriate,
the killer should escape punishment because the victim deserved to be killed. Judges are loathe to admit
evidence on this basis, lest jurors become so inflamed as to see homicide as justified due to brutalities falling quite short of
serious bodily harm.
If judges are reluctant to admit evidence of prior assaults and batteries because they construe it as
impermissibly backwards-looking, this problem is eliminated under a theory of defense against kidnapping.
Kidnapping represents a continuing crime: A theory of self-defense grounded in it need not look back to
whether prior and completed assaults and batteries justified self-defense, but whether resistance to crime at
the moment of the killing did so. This is a much easier case to make.
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reasonable actor.
RECONCEPTUALIZED BATTERIING SYNDROME WILL LEAD TO MORE JUST OUTCOMES
Hope Toffel, JD Candidate USC, 1996, Crazy Women, Unarmed Men and Evil Children: Confronting
the Myths about Battered People who Kill Their Abusers, University of Southern California Law Review,
70 S. Cal. L. Rev. 337, p. 374-5
The admission into court of gender- and age-neutral battering syndrome defenses should aid in this
reconceptualization. Gender-specific self-defense laws have encouraged the current characterization of BWS because society has
merely applied the traditional, negative stereotypes about women directly to the syndrome. By extending the battering
syndrome self-defense to men and children, it will be harder for society to associate the particular
stereotypes of women to the universal syndrome, for it will need to ask why battered women, men, and
children all respond in similar ways to their abusers.
In sum, traumatic bonding theory and Graham's Stockholm Syndrome are alternative models of domestic
violence that can assist society in reconceptualizing battering syndromes . The current model focuses almost
exclusively on the psychological traits of battered women, creating problems for those who use it and for
those who are excluded from using it because they do not fit the description. States should adopt a universal battering
syndrome, applicable to women, men and children, that highlights the situational behaviors, rather than the
inherent psychological traits, of abuse victims. Such a universal battering syndrome could portray battered
people who kill in self-defense as reasonable actors rather than mentally impaired victims.
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violence, there must be numerous cases in which such a demand was made or understood from previous
interactions. Any evidence that the victim changed her behavior out of fear of future violence would be
relevant.
There are other situations where the charge of second degree coercion would apply and where there might otherwise be a lesser charge or no charge.
For example, the statute prohibits threatening to accuse another of a crime or cause criminal charges to be instituted against that person in order to compel
conduct. Under this provision, an abuser who prevents a victim from calling the police by threatening to have her arrested would be guilty of a class A
misdemeanor. Absent a charge of coercion, there might be no charge at all. The statute also prohibits threatening to "expose a secret or publicize an
asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule" as well as "performing any other act which would not
in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career,
ruling in the intra-family coercion case discussed above indicates a lingering double standard in deciding coercion cases involving family members, the
court did not dismiss the case entirely. Upon retrial, the defendant still faced possible conviction of felony coercion or its class A misdemeanor
counterpart, coercion in the second degree. Under the facts presented, without a characterization of the conduct as coercion there would have been no
offense at all. Furthermore, in more recent cases, charges of coercion involving domestic violence have been brought and resulted in convictions.
Penelope D. Clute, District Attorney for Clinton County, New York, has successfully charged felony coercion in domestic violence cases. As a result, she
has won a felony conviction in a case where, without the charge of coercion, the defendant could be convicted of misdemeanor offenses only.
Specifically, in that case, where the defendant compelled his girlfriend to give him their infant son while threatening her with a gun, the defendant was
convicted of coercion in the first degree, for which he received a prison sentence of two to four years. No other felonies were charged. Thus, without the
coercion charge, the defendant could have been convicted of the lesser class A and B misdemeanor counts only. The misdemeanors carried maximum jail
sentences of one year and three months, respectively.
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similar forms of psychological bonding in traditional and nontraditional hostages including: concentration
camp prisoners, cult members, civilians in a Chinese prison camp, pimp-procured prostitutes, incest
victims, physically and emotionally abused children, battered women, POWs, hostages, and prisoners .
Similar to traumatic bonding theory, Graham's theory is not unique to adult women, but rather cuts across gender and age groups. It is
an instinctive phenomenon that "plays a survival function for hostages who are victims of chronic interpersonal abuse."
As described above, Graham's Stockholm Syndrome theory uses a situation-centered, as opposed to a personcentered, approach to explain why people bond with their abusers and remain in violent relationships. In
other words, the psychological characteristics of the abused are a survival strategy or "result" of being in a
dangerous situation. They are not the "causes" of being in the relationship. Battered women, however, more than other groups, are
prone to having their behaviors considered personality traits. An observation about the 1978 hostage study mentioned above explains
this phenomenon:
McClure's message to potential hostages is strikingly similar to the messages young women receive on relating to young men. In a
sense, McClure is teaching femininity and avoidance of a concomitant problem, loss of sense of self. But in the case of battered
women, these behaviors are often described by mental health professionals and legal personnel as masochistically motivated and as
traits battered women possess apart from the context of their abuse. In contrast, the same behaviors engaged in
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The clemency power has been described as "an instrument of equity in the criminal law designed to
promote the general welfare by preventing injustice." Historically, American law has recognized several types of
executive clemency. A "pardon" is an executive action that mitigates or sets aside punishment for a crime; it is used most often to
restore the reputation and civil rights of someone who has led an exemplary life subsequent to punishment. "Amnesty," which usually
is granted to a group of people, in essence "overlooks" an offense because the conduct served to benefit the public good.
"Commutation" substitutes a milder punishment for the one imposed; it does not remove the legal or moral guilt of the offender. At the
federal level, the United States Constitution vests the clemency power in the President, and the majority of state constitutions vest
similar powers in the state executive. Clemency actions are generally nonreviewable, and "regardless of the reasons an executive may
have for granting clemency, the scrutiny of this discretionary act will be left to the political process rather than to
the courts."
Pardons are required when a convicted person is not liable to punishment on retributivist grounds; ...
pardons are justifiable when a convicted person is liable to punishment, but not morally deserving of
punishment; and ... pardons are unjustifiable when a convicted person is both liable to punishment and morally deserving.
Under this analysis questions of mercy and pity are irrelevant to the exercise of the pardoning power . Other
improper uses of the pardoning power include pardons for the public welfare, pardons to promote the private welfare of the pardoner,
pardons to reward past action, and pardons based on the respectability of the criminal's family.
Therefore, under a retributivist theory of pardon, all persons should get their just deserts. Any pardon that is
not based solely on what that person deserves is improper and thus should not be granted .
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The creation of such a clemency commission would benefit battered women who have killed by providing
them with the chance to retell their story to a group more focused on justice and less susceptible to the
biases of many trial courts and juries. The diverse membership of the commission would ensure that the
abuse and history of every woman is taken into account and not just those who fit into the paradigmatic or
good battered woman stereotype . Finally, this commission would be able to assess the punishment meted out to a particular
battered woman and determine if it was fair in relation to other punishments given for similar crimes.
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responsible for the failure of courts and police to protect battered women who want to leave-a failure that
results in thousands of stalkings and deadly separation assaults each year? Perhaps we as a society bear
responsibility. But owning up to our collective responsibility for the plight of battered women deprives us of
the moral purchase to self-righteously condemn them for their so-called choices .
SOCIETY BEARS RESPONSIBILITY FOR THE CONDITIONS THAT FORCE BATTERED
WOMEN TO KILL
Jody Armour, Associate Professor of Law-University of Pittsburgh, 1996, Self-Defense and Relations
of Domination: Moral and Legal Perspectives on Women Who Kill: Just Deserts: Narrative, Perspective,
Choice and Blame, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 525, p. 526
An example of a social condition that prosecutors would prefer fact finders not to hear about in self-defense
cases involving battered women is the lack of adequate protection from courts and police for battered
women. As Professors Schneider and Jordan note: "Women are forced to defend themselves against abuse because
they do not receive adequate protection from the courts or from the police." Elizabeth M. Schneider & Susan B.
Jordan, Representation of Women Who Defend Themselves in Response to Physical or Sexual Assault, 4 WOMEN'S RTS. L. REP.
149, 151 (1978). Economically, moreover, "many women are forced to remain with their husbands out of
economic necessity."
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particularly clear. The pivotal cases involve women who kill their abusive partners. These cases are not
examples of the law permitting juries to excuse killers with whom they may sympathize. Instead, they show
that, in a certain class of cases, takings of life are justified .
The battered woman defense is easily misconstrued as a demand for special concessions for parties not competent to behave
responsibly. But expanding the reach of self-defense need not rest on compassion or seek to make up for felt
wrongs. Those who are unable to use ordinary remedies are entitled to extraordinary remedies because of
the extraordinary circumstances in which they find themselves. Such circumstances may present
themselves in unfamiliar settings.
DEADLY FORCE JUSTIFIED WHEN THE STATE FAILS IN ITS DUTY TO PROTECT
Arthur Ripstein, Philosophy Professor and Law University of Toronto, 1996, Self-Defense and
Relations of Domination: Moral and Legal Perspectives on Women Who Kill: Self Defense as a Rational
Excuse, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 685, p. 686-7
The exception to the law of murder marked out by self-defense illuminates the law of murder itself. In ordinary circumstances,
one cannot take the life of another. Ordinary circumstances are marked by clear alternatives to murder:
getting out of harm's way or invoking the protection of the state. The alternatives are linked because retreat is a viable
option precisely because one can normally depend on the state to provide protection. Those options are available to
virtually everyone, virtually all of the time. Only when they fail is private enforcement of justice warranted . And in
those circumstances, its justification is exclusively preventative. Considerations of revenge or desert are
ruled out; taking another's life is only acceptable if there is no other way to protect oneself or a third party. As highly as legal
systems value property, protecting it does not legitimate taking another's life.
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BATTERED WOMEN WHO KILL ABUSERS ARE UNIQUE AMONG CRIMINALS DO NOT
POSE ONGOING THREAT TO OTHERS
Leigh Goodmark, Assistant Professor, University of Baltimore School of Law, 2007, The Punishment
of Dixie Shanahan: Is There Justice for Battered Women Who Kill?, The University of Kansas Law
Review, 55 Kan. L. Rev. 269, p. 279-80
Battered women who kill share a number of characteristics. Few have resorted to violence against their
abusers in the past. As Angela Browne notes, "Women charged in the death of a mate have the least extensive
criminal records of any female offenders." Most have endured repeated, severe abuse over a period of years. At some point,
the violence against them escalated to a level where the battered woman believed that if she did not kill her abuser, she would be
killed. Lenore Walker explains, "Battered women who kill their abusers do so as a last resort ." Sue Ostoff, who has
represented more than 350 women who have killed their abusers, agrees: ""I've met only one woman who wanted to kill her husband.
Battered women don't want to do it. And they won't do it if they don't absolutely have to.'" One battered woman who killed her partner
described her experience: ""I would have been dead, in a short time, Tommy would have killed me. I know he would have. I know he
would have.'"
Battered women who kill have frequently tried to leave their abusers but have found that police, clergy,
courts, shelters, or other resources were either not available or not helpful in stopping the violence . In
addition, battered women are aware of the tenuous nature of the protection available through the legal system .
They read newspaper stories and watch television accounts about women who have called the police and obtained
orders of protection, only to be killed by their abusers. "When "media tragedies' like these hit the news, battered women
get the message: the system that fails to protect them from assault at home will not protect them when they leave."
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In a number of cases, abused women who have killed their partners have been acquitted. The media have
not reported an uptick in the number of murders of abusive partners in those communities. Just as battered
women are unlikely to be deterred from killing their abusive partners by the punishment that other women
who kill receive, they are equally unlikely to kill their partners because other women are acquitted - or receive
less than the maximum sentence. Battered women kill in very specific circumstances and for very specific reasons .
They kill when their individual assessments of their own situations make them believe that they have no
other choice but to kill or be killed. Luckily, relatively few battered women find themselves in situations that desperate.
Compared to the number of women in the United States who are battered each year, the number of battered
women who kill is very small.
Look at trends in the homicide rates among intimate partners. Over the past thirty years, the number of women being
killed by intimate partners has fallen by about 1% per year. Over that same period of time, however, the
number of men being killed by their partners has declined by about 4% annually. Of the 1830 murders attributable
to intimate partners in 1998, women made up nearly 75% of the victims, an increase from just over 50% of all victims of intimate
partner murder in 1976. The decline in the number of men being killed by their abused partners may be
attributable to the greater availability of services and support for battered women. Improved services
provide most battered women with options other than killing a partner to escape an abusive relationship.
The notion that battered women are simply waiting for a sign, in the form of reduced punishment, that it is
socially acceptable to kill their abusers is ridiculous. But it is also possible that this widely held notion prevents judges
from imposing just sentences on battered women who kill.
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of our excusesand some of our justificationsare based on defendants inability to freely choose a
course of action. Duress, self-defense, provocation, and insanity are widely understood as defenses that
exculpate because the defendants practical ability to choose, and thus to exercise self-control, has been
impaired. If this is right, how is it possible to draw the line between the abusive excuses where we should
encourage self-control and the non-abusive excuses where loss of self-control is permissible? If one takes
Wilsons theory to its logical conclusionthat we need to increase defendants self-control then why not demand
that those who act under duress or provocation also exercise self-control? If most defenses seek to excuse
based on defendants lack of self-control, the Wilsons theory has the potential to wipe the slate cleanto
bar almost every excusing feature of the criminal law. Explained another way: If the point is to encourage self-control,
and the law excuses defendants lack of self control, then almost all excuses become abuse excuses .
NO PRINCIPLED WAY TO DISTINGUISH FROM THE DEFENSES THAT WILSON WOULD
ALLOW AND THOSE HE OPPOSES
Victoria Nourse, Law Professor-University of Wisconsin, 1998, The New Normativity: The Abuse
Excuse and the Resurgence of Judgment in the Criminal Law, Stanford Law Review, 50 Stanford L.R.
1435, p. 1447
The difficulty with this argument is that we have no idea why the small number of narrow excuses differ from
the rest. Although Wilson urges that we eradicate some defenses, like intoxication, to increase self-control, he
approves of other defenses precisely because the defendant has lost self control. He embraces claims based on a
reasonable lack of self-control grounded in provocation or duress. How can Wilson demand that defendants exercise
self-control when they are drunk but not when they are provoked or threatened? If we are to encourage
self-control, why not treat the defendant provoked by anger like the one driven by fear and tell both that
there is something that they can do? If the battered woman must control herself, why should the
cuckolded man be permitted to let his emotions run free?
COMBINATION OF PROVOCATION DEFENSES FOR MEN AND REJECTING ABUSE
EXCUSES FOR BATTERED WOMEN LEAVES WOMEN WITH NO OPTION
Victoria Nourse, Law Professor-University of Wisconsin, 1998, The New Normativity: The Abuse
Excuse and the Resurgence of Judgment in the Criminal Law, Stanford Law Review, 50 Stanford L.R.
1435, p. 1454-5
At the same time, there are real differences in these cases: Whereas mens claims of provoked distress may be
triggered by lawful and protected rejections (e.g., filing for a divorce), womens claims of self-defense are
typically triggered by something the law unequivocally condemns (i.e., violence ). As a result, the
combination of these doctrines can, in some jurisdictions, lead to a cruel dilemma for the battered woman:
If she leaves and is killed, the law may say that the very act of leaving provoked her killers distress. But if
she acts on her own fears and kills, the law may question her claim for compassion precisely because she
did not leave.
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Effective criminal law requires that citizens must understand what conduct is prohibited, the nature of their
conduct, and the consequences for doing what the law prohibits. Homicide laws, for example, require that citizens
understand that unjustifiably killing other human beings is prohibited, what counts as killing conduct, and that the state will inflict
pain if the rule is violated. A person incapable of understanding the rule or the nature of her own conduct,
including the context in which it is embedded, could not properly use the rule to guide her conduct . For
example, a person who delusionally believed that she was about to be killed by another person and kills the other in the mistaken
belief that she must do so to save her own life does not rationally understand what she is doing. She of course knows that she is killing
a human being and does so intentionally. And although in the abstract she probably knows and endorses the moral and legal
prohibition against unjustified killing, in this case the rule against unjustifiable homicide will be ineffective because she delusionally
believes that her action is justifiable.
The general incapacity properly to follow the rule is what distinguishes the delusional agent from people who are simply mistaken but
have the ability to follow the rule. The person capable of rational conduct is at fault if she does not exercise her general capacity for
rationality. In sum, rationality is required for responsibility, and nonculpable irrationality or lack of normative
competence is an excusing condition. Blaming and punishing an irrational agent for violating a rule she was
incapable of following is unfair and an ineffective mechanism of social control. The lack of a general capacity for
rationality or normative competence is the more general theory of excuse that explains the so-called cognitive test for legal insanity.
Responsibility also requires that the agent act without compulsion or coercion, even if the agent is fully rational, because it is also
unfair to hold people accountable for behavior that is wrongly compelled. Consider again the example of a
desperado who threatens to kill you unless you kill two innocent people. The balance of evils is clearly negative: you can save your
own, single innocent life only by taking two innocent lives, so the killings would not be justified. But they might be excused because
they were compelled. Compulsion involves a wrongful hard choice that a threat produces that a rational, otherwise responsible agent
faces. If she yields to the threat, it will not be because she does not understand the legal rule or what she is doing or because the threat
turned her into an automaton. She knows it is wrong and acts intentionally precisely to avoid the threatened harm. The killing is
clearly action and satisfies most normative notions of rationality. Still, society, acting through its legal rules governing such cases,
might decide that some choices are too hard fairly to expect the agent to behave properly and that people will be excused for making
the wrong choice. Deciding which choices are too hard, that is, which threats might cause a person of reasonable firmness to yield and
to do wrong, is of course a normative matter. Once again, the subjective reaction of the threatened person is not the issue. The excuse
obtains only if the agent's conduct meets normative expectations and even if the agent is quite cool and composed as she makes the
wrong choice. (Of course, if the hard choice renders the person incapable of rationality, then there is no need to resort to notions of
compulsion to excuse.) In sum, a moralized hard choice theory is the more general theory of excuse that explains
duress.
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of our practices is possible, assertions about responsibility and blame will be propositional and have truth
value. For example, we believe that it is unfair to hold small children genuinely and fully morally responsible
for their misdeeds. Whether a harmdoer is of a certain age and whether he or she has juvenile attributes are
determinate facts, and a rich, morally defensible theory about fairness compels excusing small children . In
other words, I believe that, viewed internally, we are not just expressing an emotional preference when we exempt
small children from responsibility.
The internalist account I am defending asserts that to hold someone morally responsible and to blame them is to be susceptible to a
range of appropriate emotions, such as resentment, indignation, or gratitude, just in case that agent breaches or complies with a moral
obligation we accept and to express those emotions through appropriate negative or positive practices, such as blame or praise (see
Wallace 1994, from whose full explanation of this account I draw liberally). Moral responsibility practices are not simply
behavioral dispositions to express positive and negative reinforcers. They reflect moral propositional
attitudes toward the agent's conduct. So, for example, an appropriate responsive expression of blaming
language is rarely intended simply as a negative reinforcer, emitted solely to decrease the probability of a
future breach of this or a similar moral expectation. It also essentially conveys the judge's attitude that the
agent has done wrong. Because holding an agent morally responsible expresses a morally propositional
attitude, it is not a species of noncognitive and purely emotional response. Moral responsibility practices are not
solely propositional, however; they are not just descriptions of wrongdoing, of the breach of expectations. Again, holding people
morally responsible involves the susceptibility to a set of reactive emotions that are inherently linked to the
practices that express those emotions. It is one thing to say that behavior breached a moral expectation. This is an example of
objective description. It is another to hold the agent morally responsible for that behavior, which involves a complex of emotions and
their expression that have the force of a judgment. This, I believe, is what we are doing when we hold people morally responsible.
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slope from Judy Norman all the way to the Menendez brothers.
Indeed, Wilson finds it hard to refrain from sensationalizing the role of gender, despite expressions of
sympathy for female victims. Wilson repeatedly uses womens claims to dramatize the failures of the
system: Throughout the book, we are treated to accounts of baby-bashing mothers, PMS-prone recidivists,
and battered women who assassinate their husbands. But what of the men who kill their sleeping wives?
If one is going to discuss intimate executions what about the numerous cases in which men pursue and kill wives who are trying to
leave them? To emphasize cases involving battered women who kill their partners in fear without even
mentioning cases involving men who kill their partners in anger seems almost calculated to distort.
Portraying women as the villains in the abuse excuse drama ignores parallels in the legal doctrines
governing men and women who kill their spouses. For example, Wilson and others have criticized battered
womens syndrome for failing to treat women as moral agents. But this is nothing new: Men have claimed for
decades that they should be partially excused from spousal homicide when their emotions get the better of
them. Few scholars, however, have urged that we eliminate the provocation defense because it diminishes
mens moral agency. Similarly, while battered womens self-defense claims have increased in scope and intensity in the past two
decades, the same is true of mens provocation claims. While mens provocation claims used to focus on a wifes adultery, todays
allegations may as easily depend on far more attenuated claimsthat the defendant became upset when his partner moved the
furniture out, took the kids, or argued about a messy house.
empty ideathe abuse is everywhere the failed theory is and, in this sense, nowhere in particular. Wilson
is unable to see this because he is convinced that modernity is to blame. He wants very badly, for example, to
indict modern social movements for their role in creating excuses he considers abusive, such as battered
womens syndrome. Wilsons blistering critique of battered womens claims, however, leaves out an important parallel:
What of men who claim that they were provoked to kill their wives? Wilson does not appear to be
disturbed by such claims, embracing provocation as a traditional defense despite its obvious potential for
abuse. If Wilson is to take judgment seriously, he cannot indict some defenses for failing to judge demanding that
battered women, for example, show more self-controlbut not otherspartially excusing provoked men
precisely when they do lose self-control. Indeed, this selectivity risks leaving the impression that Wilsons
judgment is simple a conceptual peg upon which to hang political predilections . This is unfortunate, for the
revival of interest in evaluative approaches may be of enormous importance to criminal law theory: The new normativity deserves
more than a vague dismissal as politics wrapped in judgmental garb.
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Consider Wilsons argument that abusive excuses rely upon dubious syndromes. There is no male
rejection syndrome associated with the provocation cases I listed above. Men do not have to call expert
witnesses to explain that a reasonable person would lose self-control when his wife cheats or leaves; the
reasonableness of such arguments is assumed. Or consider Wilsons claim that too many excuses invite
jurors to consider group generalizations rather than the facts of a particular case. Provocation is not overtly
styled as a defense about any particular group even thought it surely does require jurors to make
assumptions about that group we call reasonable males. Finally, if Wilson is worried that defenses like
intoxication do not encourage self-control, why does he embrace the provocation defense precisely when it
does reward defendants lack of control?
Perhaps Wilson should not be blamed for this omission accounts of the abuse excuse have typically ignored or
misunderstood the provocation cases. And, although feminists have long decried the defense, sustained analysis at a
theoretical and empirical level has only recently emerged. The problem is that Wilson seems both to know something
about the provocation defense and to approve of it. Indeed, he specifically tells us that murder law should define
manslaughter as a killing that was the result of provocation, defined as behavior that would make a reasonable person immediately
lose self-control. In these cases I described earlier, however, that was precisely the defendants claim.
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The above example would fit under traditional self-defense doctrine because it describes a situation that
resembles stranger-to-stranger, man-to-man confrontational killings. Many battered people , however, would
not be able to defend themselves when directly confronting their abusers. Size and strength differentials
often matter when battered children or women are defending themselves against abusive men. Consider the
typical parricide, which would hardly qualify as a confrontational killing. Traditional self-defense doctrine defines imminence too
narrowly as confrontation and thereby excludes many battered people who kill to protect their lives. The Supreme Court of
Washington demonstrates a more enlightened viewpoint about the meaning of imminence in the self-defense context: "That the
triggering behavior and the abusive episode are divided by time does not necessarily negate the reasonableness of the defendant's
perception of imminent harm." Battering syndrome evidence would inform judges and juries of the threats and signals to which
battered people are attuned, indicating when they will be abused next.
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or her life was in imminent danger at the time the killing occurred. It is critical for a fair assessment of the
self-defense argument. These reasons make prior abuse extremely relevant in intimate killings .
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Untangling Fletcher's various conceptions of victimhood, we find him discussing individual victims of
particular crimes, past victims of crimes who raise that victimization as a defense, victims who are
members of victimized groups or groups that identify with some characteristic of the victims, and
defendants who belong to groups that have suffered discrimination. While each category of victim involves
fascinating issues, Fletcher fails to deal with any very well ; his main focus in the latter part of the book is on individual
victims. Individual victims (or their surviving relatives) constitute a category that he believes suffers particular injustice under the
current system and in whose name he advocates many of his reforms.
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battering. In a book on victims' rights, the denial of the extensive victimization of women is shocking and
wrong.
FLETCHERS PRESENTATION OF THE PROBLEM OF DOMESTIC VIOLENCE IS BIASED
AND DISTORTED
Lynne Henderson, Professor of Law, Indiana University, 1996, Crime and Punishment: Whose Justice?
Which Victims?, Michigan Law Review, 94 Mich. L. Rev. 1596, p. 1615-6
Fletcher agrees that women who are killed by their partners deserve the solidarity of the courts and law enforcement as they are "real"
victims. However, Fletcher also states that because women also kill their partners (at about half the rate of men) the blood of men
stains their hands, and the courts must not be complicitous with the evil of killing men (p.132). Fletcher overlooks
the fact that women frequently kill their partners for different reasons than men, in different circumstances,
as well as the fact that for years, the criminal law averted its gaze from male violence against women.
In a section titled "Battered Women Strike Back" (pp.132-40), Fletcher minimizes the extent of violence against women
by casting doubt upon the data indicating high rates of abuse and upon the researchers in the area. Fletcher
implies that reports indicating that one in four women will be assaulted by "their men" at least once in their lifetime are misleading
because the figure includes "hostile contact that varies from a slight slap to life-threatening attacks" (p.132). Fletcher's suggestion
is that "slight slaps" are more prevalent than other forms of assault and, as such, are not violent, but minor,
undamaging, contretemps. He also calls into question the accuracy of emergency room data indicating a high
rate of admissions of women for injuries inflicted by intimates, citing Christina Hoff Sommers for the proposition that women
may over-report such assaults. He nowhere mentions the substantial empirical evidence indicating that
women underreport intimate violence to health care providers and others. And, lest we be tempted to believe the
extensive literature on battered women and domestic violence, Fletcher cautions: "the professional writing in this area is
motivated largely by political solidarity with women like Judy Norman, " a battered woman convicted of murder in
North Carolina (p.135).
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Within the enclave of the public courthouse, a battered woman may experience a redistribution of power in
her favor. Marginalization of her claim, however, destroys this opportunity. Judicial conduct which
undermines her efforts confirms an outcome predicted by the abuser and denies any transformative
possibility.
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The values of solidarity and support, relative isolation from the heterosexist culture, reluctance to being
"out" in that culture, lack of particularized community resources and the discrimination many lesbians face
when they are open about their sexual orientation perpetuates the isolation experienced by lesbian survivors
of battering. Such isolation prevents battered lesbians from seeking assistance. American culture "teaches women to be
nonassertive, dependent on others for validation, and nurturers of their relationships ;" the culture supports battered lesbians
in accepting blame for the abuse, sustaining hope that it will stop and seeing no alternative in the greater
community. Promotion of civil rights remedies for gender-motivated violence would serve lesbians
targeted because of their sex. By not articulating the experience of battered lesbians, use of the civil rights remedies by
battered women may risk battered lesbians' further isolation and danger in this area. But by challenging gender-motivated
violence in heterosexual relationships, battered women challenge the construct of gendered power relations
which would have positive ramifications in the lesbian community.
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evidence to support the claim that battered women engage in serial abusive relationships, and there is no
evidence that battered women who kill are likely to kill again. Most battered women who kill , like Dixie
Shanahan, have never been in trouble before. As Jean Harris noted,
It is one of the many ironies of this prison that many of the women with the longest terms are the least dangerous, and led the most
useful lives before coming here. ... They were good daughters, good wives, good mothers and good citizens until the day or night the
final straw of cruelty was piled on top of all the other straws ... .
Because battered women who kill are unlikely to be in a position to or be inclined to kill again, deterrence
does not justify their punishment.
Legal philosophers have explored whether there are situations in which individuals will not be deterred by the threat of punishment.
Nigel Walker contends that fear can make "normally law-abiding men and women become temporarily
undeterrable and do things whose consequences would usually deter them." Walker further argues that homicides
are "usually committed in undeterrable states of mind." Herbert Packer adds that "deterrence does not threaten those whose lot in life
is already miserable beyond the point of hope." Dixie Shanahan's actions are consistent with these arguments. In her testimony, she
described the fear that she felt for both herself and her unborn child, fear springing from the absolute certainty that she and the fetus
would be dead by the end of the day, as her husband promised. She also described the relentless abuse, injury, and humiliation she
suffered, an existence that would surely create the kind of hopelessness contemplated by Packer.
Before killing her husband, Dixie Shanahan was not thinking about the punishment she might endure for killing her husband; she was
thinking about the punishment he would surely mete out if she took no action. Only afterwards did Dixie Shanahan realize that she
was going to go to jail "because I had just shot somebody."
Consider again the four questions Bentham posited that individuals ask when they consider committing a crime: "How much do I
stand to gain by doing it? How much do I stand to lose if I am caught doing it? What are my chances of my getting away with it? What
is the balance of gain and loss as discounted by the chance of apprehension?" Bentham believed that punishment operates
to "reduce ... the attractiveness of the possible gain" by "injecting into the calculus a sufficient prospect of
loss or pain." This model assumes an offender with the time, clarity of mind, and access to other options to
make such a calculation. Dixie Shanahan never considered these questions, because the immediacy and
dangerousness of her situation did not permit her to do so. The threat of punishment did not deter her from
shooting Scott Shanahan and would not, in the extremely unlikely event that she found herself facing a similar situation, deter her in
the future.
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The idea that all women - not just battered women - will begin indiscriminately killing their husbands if
battered women who kill are not punished drives the justification for punishing women like Dixie
Shanahan. But just as it is doubtful that Dixie Shanahan would have been deterred from her crime, it is also
doubtful that other women in the same position would be deterred by knowing that she was punished.
Deterrent effects have been linked to a number of variables, including "the type of crime, ... the incentive to commit the crime, the
severity of the threatened punishment and the extent to which the penalty is known [to the offender], and the likelihood of being
caught and punished." Legal philosophers believe that some crimes cannot be deterred, regardless of the
severity of the penalty.
Deterrence assumes that the potential offender has options other than committing the crime and can
therefore make a reasoned choice not to offend. But the context in which battered women make decisions
about offending is often one in which no other options are available. For battered women who kill, the
incentive is often to save their own lives or the lives of their children, and though they may be aware of the
penalties, they often believe that no other option is available to them, particularly because most kill after "numerous
other efforts to fight back, escape, or appease the abuser [have] failed." Battered women are frequently isolated from both formal and
informal sources of help - the legal system, shelters, clergy, family, and friends. Even if the woman is able to reach out, services may
be inaccessible for any number of reasons, including location, language, or culture. Further, although services that purport to stop the
violence may be available, they might not be particularly effective. Battered women who ultimately kill are aware of the
stories of women who have done everything "right" - called the police, sought protective orders, cooperated
with prosecutors - only to be horribly abused or killed by their attackers. Which is likely to have a greater
effect - seeing battered women who kill go to prison, or seeing women who have done all the system asked
of them harmed, even killed, despite their best attempts to flee? The lack of meaningful alternatives for
battered women whose situations have grown so dire that they believe they must kill or be killed impairs
their ability to be deterred.
Deterrence is also grounded in the idea that the potential offender will assess her own position relative to
the experiences of others like her. But the experience of being battered is not necessarily generalizable . In the
midst of a battering incident, the victim is thinking only about the unique circumstances of her situation, assessing the lethality of her
attacker and the likelihood that she or someone close to her will be killed. It is unlikely that battered women assimilating their
perceptions of imminent death stop to think, "Dixie Shanahan killed her husband and was sentenced to fifty years of imprisonment.
My situation is like hers. I am likely to be sentenced similarly. Therefore, I should find another solution - before he kills me."
Arguably, the deterrent effect could operate at an earlier moment in the relationship, spurring the woman to leave or seek other
assistance with her abuser. That argument assumes that the decision to kill is made at that earlier point; studies of battered women who
kill suggest, however, that these decisions are situational, made in the midst of a battering incident. Thinking about how she will not
be there to raise her children is not likely to deter the battered woman who kills if she is certain that she or that child is about to die.
Killing her abuser is the battered woman's only recourse in an untenable situation. She believes she must
kill or be killed. Knowing that Dixie Shanahan has been punished will not deter her from saving her own life. General
deterrence is not an adequate rationale for punishing Dixie Shanahan.
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commit other crimes. But the likelihood of Ms. Shanahan's reoffending is low and must be balanced against
a number of other costs to society created by incapacitating her. Instead of having Ms. Shanahan contribute to the
community's tax base, the state will bear the costs of her incarceration for at least the next thirty-five years. Ms. Shanahan's children
lose their mother, the only stable figure in their lives. Experts believe that severing the bonds between children exposed to domestic
violence and their abused parents can have profoundly negative consequences for those children. Ms. Shanahan's new husband,
friends, neighbors, coworkers, and community are all deprived of the positive contributions she made to their lives on a daily basis.
Ms. Shanahan's elderly and disabled patients no longer receive the high quality of care she provided them. Juxtaposing all of
these losses to the community against the low risk of further criminal behavior, it is hard to see the
utilitarian justification for incapacitation in this case.
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C.L. Ten explains that offenders are rehabilitated to the extent that they will not commit similar offenses in
the future because their values have changed and they now believe such offenses are wrong. Most battered
women who kill already have this understanding, but if faced with the same situation would likely make the
same decision, believing that they had no other choice. As Dixie Shanahan explained shortly after her sentencing, "If I
was in the same circumstances, would I do it again? Yes I would ... knowing what it cost me and my children." These women need no
change in values - only a change in the circumstances that created a situation that led them to kill.
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should be available in cases where the ground for exoneration lies in the content of an agent's reason for
doing what she did. Rational excuses thus share a characteristic with justifications: they apply to actions
done for a reason, where the excuse itself provides the reason for the violation of the prohibitory norm. As I shall argue, however,
a defense which falls in this category lacks the primary identifying characteristic of justifications in the criminal law-the endorsement
of the agent's behavior. Elsewhere I have suggested that the defense of duress should also be thought of as exoneration of intentional,
nonjustified conduct. In this sense, defenses like duress and, as I argue, self-defense, are situated between full moral
regarding actions undertaken in defense of certain interests have a moral priority over comparable selfregarding actions. Insofar as it is self-regarding, on this view, killing or harming another in self-defense cannot be
justified; it can, however, be permitted under the moral framework of excuse. In part V, I explore the doctrinal
implications of conceiving of self-defense as a motivation-based excuse. Finally in part VI, I return to the battered woman cases that
prompted our investigation, arguing that the notion of "rational excuse" helps to resolve the tension between intuition and doctrine in
such cases.
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others, yet it is the legislature's prerogative to make these judgments that impose uncompensated costs on
some people. The legislature is empowered, in short, to pick the victims of the common good. Yet these are
not the costs that we wish private individuals to impose on each other, even if the private judgment of social welfare
is correct. Thus the requirement of imminent risk insures that the stage be set before the individual play his
part in furthering the common good.
The significance of the imminence requirement in cases of self-defense bears some resemblance to the account I have given of
imminence in necessity cases. In the latter context, the imminence requirement expresses the limits of governmental competence:
when the danger to a protected interest is imminent and unavoidable, the legislature can no longer make reliable judgments about
which of the conflicting interests should prevail. Similarly, when an attack against private individuals is imminent, the police are no
longer in a position to intervene and exercise the state's function of securing public safety. The individual right to self-defense kicks in
precisely because immediate action is necessary. Individuals do not cede a total monopoly of force to the state. They reserve the right
when danger is imminent and otherwise unavoidable to secure their own safety against aggression.
Several implications follow from this account of the imminence requirement. First, the requirement properly falls into the
domain of political rather than moral theory. The issue is the proper allocation of authority between the
state and the citizen. When the requirement is not met, when individuals engage in preemptive attacks
against suspected future aggressors, we fault them on political grounds . They exceed their authority as citizens; they
take "the law into their own hands." Precisely because the issue is political rather than moral, the requirement must
be both objective and public. There must be a signal to the community that this is an incident in which the
law ceases to protect, that the individual must secure his or her own safety.
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The situation of the battered woman . . . strikes me as somewhat analogous to that of a hostage. If the
captor tells her that he will kill her in three days time, is it potentially reasonable for her to seize an
opportunity presented on the first day to kill the captor or must she wait until . . . the third day? I think that the
question the jury must ask itself is whether, given the history, circumstances and perceptions of the appellant, her belief that she could
not preserve herself from being killed by Rust that night except by killing him first was reasonable.
Wilson's analysis allows us to see that the issues raised by these cases are not just about women. Although women are overwhelmingly
the victims of domestic violence, others may face imminent threats that are nonetheless spread out over a period of time. Both the
idea of a onetime interaction and the idea that an imminent attack must be seconds away are appropriate to
one instance of self-defense. However, they are not essential to exculpation. Battered women present another
instance, and there may well be others.
Self-defense by battered women also reveals the relationship between the requirements of imminence and
the availability of other options. For "imminent" means nothing more than "before any reasonable
opportunity to get out of harm's way." As Lafave and Scott note, "the proper inquiry is not the immediacy of the threat but the
immediacy of the response necessary in defense." In order for self-defense to justify taking the life of another, the accused must have
had no choices other than facing death or defending himself. The availability of reasonable paths of retreat means that no response is
necessary in defense.
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one person's rights are not set by another person's view of them, but rather by the security interests that both
are presumed to have. A battering relationship changes the factual circumstances in which a woman may
need to act to defend herself; it does not change the conception of reasonableness. The accused still must
show that her belief that she was in danger of death or grievous bodily harm was reasonable, and that she
did not have a realistic alternative open to her. These are things that anyone claiming self-defense must
show. Although testimony may sometimes create the impression that battered women who kill are incapacitated, the law of selfdefense need make no such assumption in exculpating them.
Claims of self-defense by battered women call on the law to accommodate inequalities of power . The criminal
law aims to protect people equally from each other. When one party is physically stronger or more able to use his or
her strength than the other, the law must take that into account . Doing so does not entitle the weaker party to avenge
earlier wrongs. But it does allow her to act to defend herself in whatever ways she can when she reasonably
believes that she is in danger.
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to include battered women. Battered women should be seen as apprehending the batterer for committing a
felony, the battery itself.
Finally, death may be justified under a retributive analysis in which the battered woman is seen as punishing
the batterer. Regardless of whether one morally approves of capital punishment, it has been sanctioned by the Supreme Court and
many states. If the battered woman is stepping in where the state has failed, then she should be permitted to
exercise the same powers as those possessed by the state. While the punishment may not seem to fit the crime, other,
less extreme, forms of punishment or force may not be available to the battered woman.
Other forms of violence - Lorena Bobbit's maiming, drawing and quartering and torture - are not permissible under this rationale
because they are not are state-sanctioned punishments. While it may seem odd to advocate killing and not other forms of force, this is
a decision made by the states and accepted by a large portion of American society. The death of the batterer, therefore, is a
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of intimate partner homicide have indeed shown women and men being arrested for first-degree murder at
similar rates, but convicted at different rates.
The small number of women defendants in the domestic violence and homicide cases discussed supra,
combined with the differential treatment of male and female defendants generally, lends support to the
argument that women are treated with leniency in the criminal justice system. The most common explanations
feminist criminologists give for such differences in punishment between men and women are the chivalry theory and the paternalism
theory. Chivalry theory posits that men are unwilling to harm women or to believe that a woman could be capable of criminality. The
paternalism theory states that women are seen as childlike and in need of protection and guidance, and therefore cannot be held fully
responsible for their wrongful acts. Both theories "assume that judges have a benevolent or condescending attitude towards women
and believe women defendants are in need of guidance and protection from the harshness and stigma associated with prison
sentences." Many studies support that "wherever discretionary decisions are made, women are less likely than men
to be detected, arrested, charged, convicted, and sentenced," and that when women are sentenced, they
receive "milder sentences than men." Further, there are indications that women are less likely than men to actually be
executed once they are sentenced to death.
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is
given to other violent crime between acquaintances. Arrest rates for domestic and non-domestic disputes do
not differ once levels of injury are taken into account. See, e.g., Douglas A. Smith and Jody Klein, Police Control of
Interpersonal Disputes, 31 Social Problems 468 (1984). And insofar as prosecution rates for domestic violence
offenses are lower, it is because women refuse to press charges - a choice they freely make, and one that
cannot be attributed to States.
Second, States convict male murderers at equal rates, regardless whether the victim was the offender's
spouse or was a (generally male) non-family member. See Patrick Langan and John M. Dawson, Spouse Murder
Defendants in Large Urban Counties, BJS Special Report Sept. 1995 (two-year study of 75 largest urban counties, with more than half
of all U.S. murders).
Indeed, women receive far gentler treatment from the courts than men do. Women who committed
unprovoked murders of their husbands received an average sentence of only seven years, whereas men who
committed unprovoked murders of their wives received an average sentence of seventeen years. See id. at 3.
Brzonkala's comparisons of prosecution and conviction rates between murder cases and rape cases are
not appropriate. See Brz. Br. at 16. In murder cases, it is generally clear that a crime has been committed, because a person is
dead; furthermore, the law does not recognize consent to murder. Rape prosecutions, on the other hand, often
must prove both the question of consent and the question whether a crime has been committed (unless there is
physical evidence of injury), and the fact-finder often must decide between two conflicting versions of the event, neither of which is
supported by other evidence.
The proper comparison, therefore, is between treatment of rape cases and treatment of felony assault cases,
because these also often involve acquaintances who each tell uncorroborated and conflicting stories. And prosecution and
conviction rates for rape and for violent assault are almost identical. See U.S. DOJ, Bureau of Justice Statistics,
Tracking Offenders 2 (June[**61] 1991) (eight-state study showed that 80 percent of those arrested for sexual assault were prosecuted,
compared with 77 percent of those arrested for felony assault; 54 percent of those prosecuted for sexual assault were convicted, but
only 46 percent of those prosecuted for felony assault were convicted).
Finally, many of the evidentiary rules against which Petitioners complain are designed to ensure fairness to
defendants, who are entitled to the presumption of innocence. Eliminating such rules--for example, by
failing to question an inconsistent story - would risk grave injustice to men. See, e.g., S.Rep. 103-138 (Sept. 10,
1993) (suggesting there is anti-female bias in fact that court personnel" question the credibility of rape victims based on ... matters that
are irrelevant ... For example, they may require a woman ... to tell a consistent story"); S.Hrg. 103-878 (Nov. 16, 1993) (quoting
Senator Cohen's assessment that gender bias was revealed in case where jury failed to find that wife's cutting off husband's private
parts was conclusive proof that husband had committed rape).
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acknowledged the need for women to feel protected by the system, both when they first leave the abuser, as
well as during the period when they are seeking justice. Accordingly, every state has enacted civil protection
order statutes and provisions for emergency ex-parte relief for victims attempting to leave an alleged
abuser. These protection orders demand that the alleged abuser stay away from the victim, her home, her
workplace, and her family, until the outcome of the case or for a specific duration. The protection statutes also
provide support for the victim in her attempt to regain control of her life, providing that the state will charge the abuser criminally if
he violates the order.
The limit on the state legislative development has been the legislatures' inability to enforce the legislation; this remains the duty of
the police and the court system. In this situation, the state legislatures have been proactive, creating legislation that mandates or
encourages the state court systems, as well as local jurisdictions, to enforce protective legislation. Since 1994, all fifty states
have enacted some sort of domestic violence arrest policy, thereby limiting the amount of discretion available to the
police. These policies, coupled with further educational programs and domestic violence training for both
law enforcement and court personnel, have begun to make a dramatic difference in the statistics concerning
domestic violence.
Statistics support the conclusion that the state legislatures have begun to respond to the problem of
domestic violence, addressing this very personal crime with victim-focused legislation. With the continued state
legislative fight against domestic violence, the loss of Title III does not signify the end of the fight against domestic violence. Despite
the legislative advancements, the quest for an end to the problem of domestic violence has only begun to take shape. "[A] law is only
as good as the system that delivers on its promises," thus, the states must continue to improve upon the methods of dealing with
domestic violence and those who suffer as a result. To fully comprehend the proactive stance of the states and the continued quest for
further advancement in dealing with domestic violence, it is necessary to examine the response of state law enforcement and court
personnel.
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to
recognize that domestic violence is a crime not only against the victim, but also against the state.
In a mandatory arrest jurisdiction, the police officer must arrest the suspect if there is probable cause that a domestic violence
incident occurred. These policies have resulted in an increase in domestic violence arrests. For example, in Washington, D.C., the
percentage of domestic violence arrests after the enactment of a mandatory arrest policy jumped from five to forty-one percent. An
increase in the number of arrests should correspondingly result in an increase in the number of domestic abusers punished and,
consequently, the number of victims that are effectively helped.
In a majority of states, preferred arrest policies are in place. In a preferred arrest situation, the police
officer has more discretion than in a mandatory arrest, but can still act regardless of the victim's wishes.
These policies, unlike mandatory arrests, allow the victim to have input in the outcome of the situation, however, the decision is still
ultimately left to the police. Preferential arrest statutes usually contain language from the legislature that encourages arrests in certain
situations or fact patterns. In encouraging, but not mandating, arrests, the state places its confidence in the police
officers and encourages the officers to take a more educated role in the process of handling domestic
crimes. Of course, the success of arrest policies depends on the continued training of officers in order to dispel stereotypes about
domestic violence, and instruct them on how to deal with these types of situations.
One of the most important areas where these arrest policies have begun to make a difference is in the
enforcement of civil protection orders. Enforcement of protection orders is arguably the most important
duty of the criminal justice system in combating domestic violence. Protection orders provide the victim with time
and space away from her abuser, as well as the right to stay in her home and keep her children. Protection orders were a main concern
of the VAWA I, thus, funding was made available to states that adopted more stringent arrest policies and made a concentrated effort
to enforce protection orders. Through enacting these proactive policies and coupling them with domestic
violence training for police officers, the states have attempted to respond to Congress' concerns with
varying degrees of success.
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as a result of the no-drop policies and the corresponding drop in intimate murders support the continued use
of this proactive policy. This policy encourages the prosecutor to treat the case as if there was no
complaining witness, effectively increasing the chances that evidence and other witnesses will be collected,
thereby increasing the possibility of a conviction.
Although many women's groups disagree with this type of policy, it is achieving results in the area of domestic
violence. In developing effective prosecutorial policies concerning domestic violence, there is no way to satisfy all parties. Despite
the arguments against it, "no-drop prosecution policies have moved domestic violence criminal prosecutions to a
position of rough parity with crimes perpetrated by non-intimates and have greatly expanded the tools
available to battered women seeking to escape abuse." This statement is true because in no other area of criminal
law does a state defer its decision of whether to prosecute a defendant to the victim. Accordingly, for
domestic violence to be treated as a serious crime, it must be treated the same as any other crime against the
state.
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public, leading to many legal reforms. There are now state codes for civil protection orders, family
violence and custody, mediation of custody disputes, civil damages for family violence, social and health
services, and arrest and law enforcement . By 1988, all fifty states had enacted laws to provide civil and
criminal remedies for victims of family violence .
Research has established that a woman is at her greatest risk when separating from her abuser. Statutes providing for
protection orders have proven effective in providing safety and autonomy for abused women and children
and constraining and deterring abusing men. The majority of state codes impose no time limit within which an abused
person must file after an abusive incident. Except for Delaware and South Carolina, all jurisdictions permit an abused person to
obtain an ex parte temporary order of protection. Protection order codes authorize orders restraining the abuser from future acts of
domestic violence, granting exclusive possession of the victim's residence to the victim, disallowing contact with the victim, awarding
temporary custody to the non-abusing parent, and granting spousal or child support. Forty-nine states allow injunctions
against further violence, while fifty permit exclusive use of a residence or eviction of a perpetrator from the
victim's household. Forty-three jurisdictions authorize awards of custody or visitation, and twenty-three authorize the payment
of child or spousal support in protection orders.
Half of state codes award attorneys fees and/or costs, although only about one-quarter permit further monetary compensation,
such as out-of-pocket expenses, replacement of destroyed property, relocation expenses and/or mortgage or rental payments. Statutes
in more than forty jurisdictions allow the court to order any additional appropriate relief.
Violation of a civil protection order constitutes a misdemeanor in thirty-five states. Contempt is an alternative
charge that may be lodged against the violator in many states, with civil contempt available in thirty-one jurisdictions, and criminal
contempt available in twenty-one. Although some states provide for a minimum jail sentence of forty-eight hours to five days
imprisonment, most statutes give discretion to the court on sentencing. Generally, these statutes set sentences to a maximum of six
months or one year and a maximum fine of $1,000.
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immigrant women to deal with domestic abuse; how they can respond to the needs of abused immigrant
women for personal safety and improved family relationships; and when arrests, prosecutions and
restraining orders are effective in protecting the safety of the immigrant women.
EVEN IF SOME WOMEN DONT WANT TO FOLLOW THROUGH ON LAW ENFORCEMENT
REMEDIES THEY ARE EFFECTIVE IN REDUCING ABUSE FOR SOME WOMEN
Hoan N. Bui, Professor Sociology- University of Tennessee @ Knoxville, 2004, In the Adopted Land:
Abused Immigrant Women and the Criminal Justice System, p. 98-9
Arrests, prosecutions, and restraining orders have been considered new resources for abused women to
combat domestic abuse; but the effects of these interventions appear to be conditioned by the ability of
women to actually invoke the authority of criminal justice agencies to empower themselves, influence their
husbands/partners behavior, and bargain for their safety. Although many abused women have called the police to report abuse, not
all of them want to rely on the police to arrest and press charges against their husbands/partners. It is not uncommon to see
abused women request that charges against their abusers be dropped. Emotional dependency, fear of
reprisal, as well as economic and cultural constraints often prevent women from following through the
criminal justice process or using the full force of legal enforcement to empower themselves to fight against
domestic abuse. This is illustrated by the experiences of Tram, Phuong, and Quyen discussed in previous sections. On the
other hand, when abusive men have a stake in conformity and are aware that their wives/partners have the
assertiveness, independence, and access to invoke the authority of the law to combat domestic abuse,
criminal justice interventions seem to have a stronger impact on womens safety in the long run. Lien
experienced serious abuse by her husband both in Vietnam and in the United States, but the abused
decreased and became less frequent after police interventions.
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a conviction that the woman who offends has transgressed twice; by disobeying the commands of the
criminal law, she also has violated society's expectations for appropriate conduct from one of her gender.
Aware of this bias and the risks it poses for her client, a feminist practitioner, even were she not dedicated to winning for
ethical reasons or for its own sake, cannot afford to ignore existing excuses or neglect old arguments for new ones,
such as those provided by the battered woman syndrome defense. But leniency holds special perils for
women as well, and it is with those perils that this Article is concerned. When we are able to convince decisionmakers, who may be
inclined to punish us harshly on grounds they would not hold against men, that we should be excused, we rightly feel that our practice
has succeeded. But if, as is claimed, the reigning theory of responsibility declares that an excused offender is less
than a full human being, we must consider whether the practice of excusing women is bringing to law a
feminist theory of responsibility or whether it is exploiting and, thereby, reproducing norms that support the conditions of our
subjugation.
to give shape to the responsible actor, the academy has committed us to a negative definition of that crucial
concept; as Hart remarked, an actor is declared responsible if he breaks the law when none of the excusing conditions are present.
Indeed, the academy generally insists that the law must embrace this negative definition: by refusing to prescribe virtuous character
traits for or impose affirmative duties on actors who would be found law-abiding, the law is said to secure maximum
autonomy to pursue individual ends. Yet, if the ideal model of the responsible actor emerges only in opposition to that which
he is not, namely, the excused actor, then we must consider how this model constructs gender relationships when we
notice that the criminal law steadfastly has doubted that women are capable of responsible conduct and,
therefore, has excused them in circumstances where men would be punished. In particular, if the criminal law
identifies those actors who possess the capacity for responsibility by pointing at undesirable personal
characteristics that excused actors share and responsible actors therefore should shun - and if the
undesirable characteristics are those that the law most closely associates with and that have been
internalized by women - then the model of responsibility reinforces the familiar social understanding of
gender as a bipolar, hierarchical arrangement.
Pushing academic or theoretical objections aside, the criminal practitioner understandably may conclude that any costs an excuse
entails, such as lingering skepticism over the accused's competence to manage her affairs, are insignificant when measured against
those inflicted by a guilty verdict. But if women achieve leniency by exploiting, rather than challenging and
revising, the existing categories of excuse, they not only leave the theory of criminal responsibility intact,
they also leave intact the competing life stories that the theory constructs and makes available for excused
actors and responsible human beings to experience. The experience of the responsible actor is one that
resonates powerfully in our culture and, by securing excuse, women assure that it is one that will continue
to be denied to them.
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psychological diagnosis of battered women that construes them as suffering from various emotional,
cognitive, and behavioral deficits, which negatively influence [them] from leaving a relationship after the
battering occurs. The central testimony for the defense is not provided by the accused woman, but by the
expert witness, usually a psychologist, who claims that the battering caused the woman to succumb to a mental
health disorder[] called learned helplessness, which made it impossible for her to contemplate leaving her violent mate
even though other people perceived that she could, and should, have separated from him. She may have avenues of escape from the
marriage, short of homicide, to which others would turn, but the battered woman's dysfunctional mental condition leaves her unable to
act to take advantage of them.
Therefore, notwithstanding their contrary protests , the battered women's defenders have not structured this new
defense as a justification, nor have they made any sustained effort to challenge the theoretical categories of
justification and excuse and the moral and practical discriminations that those categories make between the
individual actors who are assigned to them. The strategy of the battered women's defenders has not been to ask the jurors to
find, as under a self-defense claim, that the woman's act of killing was justified because the typical person also would have believed
that deadly force was necessary under the circumstances. Rather, the defense concedes that the typical person would
have chosen to terminate the relationship long before the battering escalated to the point where the use of
deadly force became necessary. Then, carefully tracking the traditional requirements of excuse, the defense
goes on to ask the jurors to determine that the accused woman suffered from cognitive and volitional
disabilities that deprived her of the capacity to choose lawful conduct (that is, leaving her spouse).
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that men withstand any pressures in their lives that compel them to commit crimes, including pressures
exerted by their spouses. In this way, the theory of criminal responsibility has participated in the construction
of marriage and, indeed, of gender, as a hierarchical relationship. By construing wives as incapable of
choosing lawful conduct when faced with unlawful influence from their spouses, the theory invests men
with the authority to govern both themselves and their irresponsible wives.
The battered woman syndrome defense rests on and reaffirms this invidious understanding of women's
incapacity for rational self-control. For the sake of clarity, I must emphasize that my argument is not that the battered woman
syndrome defense is illegitimate merely because it fails to hold women to the same demanding standard against which men are
measured. Rather, my claim is that, by denying that women are capable of abiding by criminal prohibitions, in
circumstances said to afflict many women at some point during their lives, the defense denies that women
have the same capacity for self-governance that is attributed to men, and, if the theory of responsibility operates in
practice as its proponents claim, the defense thereby exposes women to forms of interference against which men are
safe.
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behavioral abnormalities; indeed, the fundamental premise of the defense is that women lack the
psychological capacity to choose lawful means to extricate themselves from abusive mates.
I advance this conclusion with some reluctance because the defense was designed by practitioners who believed that they were
bringing to the criminal law a feminist perspective on the way in which women are affected by and respond to domestic violence.
Therefore, I emphasize here that the failures of the battered woman syndrome defense really are not, contrary to some
recent suggestions, the product of feminism. Rather, the defense is the offspring of the patriarchal assumptions
from which the discipline of psychology, as well as law, was constructed . That some feminists initially endorsed the
defense underscores the pressing need to examine and revise the epistemological premises of the disciplines to which feminist legal
scholars and practitioners turn for assistance in repairing the law's partial understandings of gender.
In Part I of this Article, I describe the normative theory of personal responsibility for conduct that is embraced by the criminal law, and
I explore the criminal academy's insistence that efforts to relax that demanding standard imperil our cherished autonomy and freedom
from official interference. However, Part II of the paper establishes that, for centuries, the criminal law has doubted that women
possess the same capacity for responsible conduct as men do. In this Part, I provide a partial genealogy of the battered woman
syndrome defense; I describe a special excuse from criminal liability that the law afforded to married women, which was founded on
women's incapacity for rational self-governance. In Part III, I undertake to show that the battered woman syndrome theory
recapitulates these same misogynist assumptions about women's helplessness to govern their own lives , and I
trace how the feminist practice that gave rise to the battered woman syndrome defense unintentionally
endorsed the patriarchal values that have informed the criminal law's treatment of women for at least the
past six centuries.
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misogynist stereotypes and to establish that the woman's lethal action was reasonable. Regrettably, the
defense achieves neither of these objectives. To the contrary, the defense concedes that the woman's conduct
was unreasonable, but then excuses her from criminal liability if she can prove that she was a passive,
obedient wife whose choices were determined, not by her own exercise of will, but by the superior will of
her husband. Far worse, because the defense is designed to accommodate women's special psychological inclination for submission
to men, it requires accused women to embrace precisely the same insulting stereotypes the defense was
supposed to explode, and it endorses the assumption that all women are incapable of the rational selfgovernance exercised by men.
LEARNED HELPLESSNESS AS A JUSTIFICATION FOR KILLING AN ABUSER PROMOTES
NEGATIVE STEREOTYPES OF WOMEN
Jody Armour, Associate Professor of Law-University of Pittsburgh, 1996, Self-Defense and Relations
of Domination: Moral and Legal Perspectives on Women Who Kill: Just Deserts: Narrative, Perspective,
Choice and Blame, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 525, p. footnote
A battered woman who kills in a "nonconfrontational" situation (i.e., a situation in which the decedent did not pose an
imminent threat of death or serious bodily injury to the defendant) may make two quite distinct claims of reasonableness .
(Contrary to popular perceptions, only about 20% of the situations in which the defendant kills her abusive spouse can be
characterized as "nonconfrontational"; in most cases the defendant was actually under attack by her abusive spouse when she resorted
to deadly defensive force. Holly Maguigan, Battered Women and SelfDefense: Myths and Misconceptions in Current Reform
Proposals, 140 U. PA. L. REV. 379, 379 (1991)). The first claim maintains that she should be excused for errors in
judgment attributable to the psychological disorders induced by her plight. The second claim maintains that
her conduct was rational, and hence justified, in view of the objective obstacles that she faced; that is, she
was justified in killing her batterer in a nonconfrontational situation in the same way that a hostage would
be justified in killing the armed guard who inadvertently drops off to sleep.
Professor Elizabeth Schneider points out that expert testimony on battered woman syndrome may address both of these claims.
Expert testimony about "learned helplessness" and the psychological disorders induced by the abusive
relationship taps an excuse theory of self-defense. In contrast, expert testimony about the objective obstacles to leavingincluding "separation assault" (the often lethal escalation in violence that many women suffer when trying to leave a battering spouse)
and the police's and courts' failure to protect women from ongoing abuse-suggests that the defendant's responses were rational and
perhaps justified. See Schneider, supra note 2, at 20203; see also Mahoney, supra note 7, at 80-82 (discussing how testimony on
separation assault may sometimes support the excuse-based claim by explaining why the woman would stay in the battering
relationship long enough to develop "learned helplessness"). Some feminists have cautiously criticized the learned
helplessness element of battered woman syndrome for its tendency to promote stereotypes of women as
passive, submissive, helpless, and irrational. Id. at 37-43; Schneider, supra note 2, at 207 & n.68; Elizabeth M. Schneider,
Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense, 15 HARV. C.R.-C.L. L. REV. 623 (1980).
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creates for women a double-bind even more damaging than that posed by the marital coercion doctrine: the
new defense continues to portray the independent wife as evil, deserving condemnation and blame, and the
new defense continues to recognize the submissive wife as good and to reward her with the familiar
patronizing sympathy; but, additionally, the new defense recommends that she undergo a course of therapy
for her psychological disorders.
BATTERED WOMENS SYNDROME DEFENSE PERPETUATES NEGATIVE STEREOTYPES
Joan H. Krause, Attorney-Hogan & Hartson, 1994, Of Merciful Justice and Justified Mercy:
Commuting the Sentences of Battered Women Who Kill, Florida Law Review, 46 Fla. L. Rev. 699, p. 7167
Before turning to an analysis of clemency efforts on behalf of battered women imprisoned for killing their abusers, it is important to
note that there is substantial disagreement over the judicial and legislative approaches described above. The debate involves feminist
theorists and advocates who worry that a "battered woman defense" ultimately would work to harm women .
In particular, many commentators are troubled by the learned helplessness component of BWS, which depicts the
battered woman as weak and emotionally damaged. Expert testimony focused on helplessness may reinforce the same
sex-based stereotypes that BWS was designed to counteract. Testimony that depicts a woman as too emotionally
disabled to leave the relationship, if not carefully framed, may suggest that she was far too impaired to act
reasonably. Ultimately, judges and juries may interpret BWS merely as "a new and excusable form of
female irrationality."
In addition, the "battered woman" depicted by BWS may not represent many defendants. Put bluntly, explanations of passivity based
on learned helplessness do not mesh well with the act of killing. As Professor Susan Estrich has noted, " women who arm
themselves and succeed in killing their husbands are, by definition, hardly the 'helpless' creatures" BWS
depicts. Battered women are caught between conflicting stereotypes: a woman must appear helpless in
order to invoke BWS, yet the prosecutor may argue that her passivity indicated unreasonableness -- or,
even worse, acquiescence in the abuse. Nor does the syndrome fit the battered woman who has a successful career and does
not appear to be "dependent" on her mate or unable to cope with adversity in her professional life. As Professor Maguigan has noted,
"the creation of a generalized model of the battered woman, to say nothing of the battered woman who
kills, invites courts to prevent the fair trials of women who are not 'good' battered women."
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syndrome' sounds like a form of mental disease or defect, lawyers relying on this framework are more
likely to view the case through the lens of an impaired mental state." The term "implies that [the battered
woman] is limited because of her weakness and her problems." Judges and juries hearing such evidence may make
similar assumptions, triggering the rehabilitation justification for punishment: punishment is appropriate in these cases because the
battered woman suffers from a condition that must be cured before she can safely resume her place in society.
The problem with this rationale, of course, is that the term "battered woman syndrome" has been horribly
misconstrued. While some battered women are mentally ill, the condition of being battered does not, in and
of itself, constitute a mental illness or defect. A battered woman who kills cannot be cured of being a
battered woman through punishment - nor does she need to be.
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By securing leniency on the ground that we are predisposed to losing our power of rational choice, the
battered woman syndrome excuse relinquishes to men, acting either individually as husbands or officially as
representatives of the state, the authority to make, or, at least, superintend, our choices for us. The excuse thereby
withholds from women the basic life satisfactions that the capacity for responsibility is said to secure . If our
misconduct incurs not blame for our evil choices, but pity for our psychological infirmity, then our good
works will be characterized, not as the product of our own achievements and willings, but as the successful
work of the expert therapists whose "cognitive restructuring procedures' overcame the effects of our mental
disabilities.
The fears of Professor Coughlin and others are clear - any excuse available only to women, because they are women,
enfeebles women, and thus in her words "institutionalizes negative stereotypes of women." It is irrelevant to many
BWS proponents whether the excuse theory fits - it is bad social policy, albeit for a good social cause, and thus is
unacceptable. This leaves many BWS supporters face-to-face with imponderable dissonance. On the one hand, they want to argue
that the devastating effects of domestic abuse cause women to acquire the "learned helplessness" of BWS, which supports holding
them to a different, lesser, standard of conduct. On the other hand, they wish to assert that battered women are justified in killing their
batterers and do not suffer any mental impairment or disability. However, the first proposition argues against the second, and vice
versa, leaving BWS theorists with the choice of either modifying their theory or endorsing a paradoxical hybrid of excuse and
justification.
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Victimization Impacts
DOMESTIC VIOLENCE DISCOURSE INCREASES CONSTRUCTION OF WOMEN AS
VICTIMS
Marilyn French, feminist philosopher and author, PhD in literature-Harvard, 1992, The War Against
Women, p. 190
Susan Schechter, who wrote a historical account of the movement to aid women whose men beat them, explained that in seeking
funding from organizations willing to help the needy, activists found it politic to emphasize womens
victimization and consequent psychosocial problems. By doing so, they unintentionally conferred on
battered women the permanent label of helpless victim and helped generate a mental health profession
claiming expertise in family violence. Schechter believes these professionals watered down their language
and shifted their focus away from battered women and battering men to domestic violence from fear
of alienating the men involved in funding programs.
VICTIMIZATION RHETORIC UNDERMINES WOMENS EMPOWERMENT
Rhonda Copelon, Professor of Law, City University of New York, 2003, American University Journal of
Gender, Social Policy & the Law, 11 Am. U.J. Gender Soc. Pol'y & L. 865, p. 876
All of this is not to deny that the international human rights system still operates more in rhetoric than in reality. The range of
problems and contradictions that Liz discusses in her book also plague the official international human rights approaches. While it is
undeniably progress that the international system has finally recognized gender violence as a human rights matter, the remedies are
primarily state-centric. This raises, in turn, the limitations and dangers of transferring reliance for protection to, and, thereby,
enhancing, the policing power of the state. What happens to women's alternative remedies - the protective whistles used in Nicaragua
and the shaming tactics, picketing, etc., with which movement in many places, including here, began? Casting women as
victims draws attention and support, but victimization approaches can undermine rather than advance the
goal of women's empowerment. And dealing only with violence rather than with the broader underlying
social, economic, cultural and racial discrimination, as well as poverty, all of which perpetuate the
conditions for gender violence, is to focus on the tip of the iceberg.
VICTIMIZATION FRAMEWORK REDUCES VIOLENCE TO AN INDIVIDUAL PROBLEM
UNDERMINES AGENCY, EMPOWERMENT AND ABILITY TO SEE VIOLENCE AS SYSTEMIC
Hilary Astor, Law Professor University of Sydney, 1995, Public and Private: Feminist Legal Debates, ed.
Margaret Thornton, p. 189
Elizabeth Schneider has criticized the false dichotomy between victimization and agency, analyzing the problem it
creates for the battered womens movement. She quotes Susan Schecter:
the focus on victimization helps to blur the insight that the struggle for battered womens rights is linked
to the more general fight for womens liberation. When activists view battering as victimization rather than
as an aspect of oppression they have a tendency to see individual problems rather than collective ones.
Both Schneider and Schecter note the disempowering connotations of being a victim and the failure of the
category of victim to capture the complexity, strength and resilience of women who are the targets of
violence. The opposed category of agency also fails to take account of womens daily experiences of
oppression, struggle, and resistance within ongoing relationships.
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Victimization Impacts
INSTITUTIONS OTHER THAN GENDER CONSTRUCT AN IMAGE OF BATTERED WOMEN
AS HELPLESS LIMITS ABILITY OF THOSE WHO WANT TO FIGHT BACK
Hoan N. Bui, Professor Sociology- University of Tennessee @ Knoxville, 2004, In the Adopted Land:
Abused Immigrant Women and the Criminal Justice System, p. 11
Although domestic violence occurs within the context of unbalanced power relationships, womens experiences of and
responses to violence are not solely affected by the power dynamics within the family because gendered
practices in other institutions also interfere with family life. By formulating ideals, defining morality, and establishing
policies to sustain the power of men, the state and various social, political, and religious institutions form a system
of social power that reinforces gendered practices and shapes womens behaviors and experiences . For
example, some religious institutions assign a secondary status to women, encourage women to obey their husbands and stay in family relationships, or
discourage women from testifying against their abusive husbands. The normative definition of femininity, which is based on the general inferior status of
women and emphasizes womens compliance with subordination to and accommodation of the interests and desires of men, can prevent women victims
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domestic violence theory has concentrated on heterosexual battering and the perpetration of violence by
men. Women perpetrating violence against their partners challenges traditional gender-based, socio-political theory on domestic
violence.
the myth of same-sex relationships as egalitarian and devoid of violence, as well as the gay communitys
acceptance of these myths, has made social acknowledgement and efforts to address these issues almost
nonexistent.
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women have long been stereotyped as the "bad" woman, and thus as not conforming with
the stereotype of the good battered woman. As a result, black women are less likely to benefit from admission of testimony
on battered woman syndrome. The following explanation describes this process:
Race certainly plays a major role in the cultural distinction between the "good" and "bad" woman. The
passive, gentle white woman is automatically more like the "good" fairy tale princess stereotype than a
Black woman, who as the "other" may be seen as the "bad" witch ... If a woman is perceived as being a "good"
woman, she can expect greater protection, while Black women are seen as "bad" and as deserving victims.
In addition to the perception of black women as bad women, thus not deserving of any special treatment, black
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telling ones story as a victim story risks reducing oneself to the stereotypes of suffering. Describing
yourself as a victim has a self fulfilling and self-perpetuating feature; and yet, failing to acknowledge or
assert ones victimization leaves the harm unaddressed and the perpetrators unchallenged.
Being a victim of violence, a battered woman is therefore a label that may, perforce, be accepted by those
women who most desperately need the protections to which it will entitle them. It is most likely to be
applied, then, to women who do not have the resources to avoid it.
FEMINIST PERSPECTIVE ON DOMESTIC VIOLENCE SEEN AS THE WHITE WOMANS
VIEW DISCOUNTED AS IRRELEVANT IN MANY COMMUNITIES OF COLOR
Sarah M. Buel, Professor University of Texas Law School, 2003, American University Journal of Gender,
Social Policy & the Law, 11 Am. U.J. Gender Soc. Pol'y & L. 309, p. 323
The danger for victims of color may be exacerbated by concerns about privacy. This is not to say that white victims are not also
embarrassed by public disclosure of the abuse, for they are. It is, rather, recognition that victims of color often face what Professor
Linda Ammons has termed "the loyalty trap," which describes the inherent tensions in feeling torn by loyalty to
one's race and community versus self-protection. Privacy is also seen as a cultural more for some,
stipulating that public disclosure of family dissension only serves to reinforce negative stereotypes about
people of color. It is thus that a victim of color may feel allegiance not only to her batterer, but also to men of
color, generally. Yet some feminist scholars have refused to respect victims who opt for privacy over
safety. Legal scholar Kimberle Crenshaw explains, "Feminism has no place within communities of color ... the
issues are internally divisive, and ... they represent the migration of white women's concerns into a context
in which they are not only irrelevant but also harmful." However, other African American feminists argue that it is time
to talk publicly about the physical and sexual violence perpetrated within all communities, and suggest that the Catholic Church's
sexual abuse scandal ought to be an impetus to shed light on all of the hidden and silenced abuse, which benefits the offender to the
detriment of the victims and community. Law students, especially those who are white, are often perplexed by the privacy versus
safety dilemmas for victims of color and appear to benefit from open discourse on the topic .
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and women of color. One study suggests that women who do not meet dominant culture expectations of
"the good battered woman" are at greater risk for arrest; that women experience longer periods of pretrial
detention than men with comparable domestic violence charges and similar criminal records because of
their relative lack of access to resources for posting bail; that women of color and poor women get harsher
sentences than men with similar histories and convictions.
FEMINISTS APPROACH TO DOMESTIC VIOLENCE OFTEN BIASED TOWARD WHITE
WOMEN AGAINST POOR WOMEN AND WOMEN OF COLOR
Donna Coker, Professor, University of Miami School of Law, 2001, Buffalo Criminal Law Review, 4
Buff. Crim. L. R. 801, p. 811-2
This article examines domestic violence crime policy in the context of intersecting oppressive systems of race, class, and immigrant
status. I have argued elsewhere that poor women and particularly poor women of color should be the focus for
evaluating anti-domestic violence law and policies. These women are "sandwiched by their heightened
vulnerability to battering, on the one hand, and their heightened vulnerability to intrusive state control, on
the other." In essence, my argument is the reverse of the "rising tide carries all boats": Law and policy that is based on the
experiences of poor women, and especially of poor women of color, is likely to result in reforms that
benefit all battered women. But law and policy that is developed from the experiences of a generic category
"battered women," is likely to reflect the needs and experiences of more economically advantaged women
and white women, and is unlikely to meet the needs of poor women and women of color.
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Some police departments have developed policies that require officers to report to child protection services every case in which a child
is present at a domestic violence call. In addition, child protection organizations have broadened dramatically the definition of child
abuse to include residing in a home in which domestic violence takes place. Children are removed even when the violence was a onetime occurrence, and even when the children did not witness the violence The statements of rural battered women in New
York State capture the problem of the intersection between child protection and mandatory policies:
It does more damage to call the police ... The call to the police opened up so many doors. Then I had three
different services watching me and with the kids. Child protective put me at risk for losing my children;
they said, next time they'll take the kids! I always thought the police were there to help me. I would never
call them again.
He beats me and I get [Child Protective] Services dropping in on me three times a week. Meanwhile, no one is getting him help.
Like so many other forms of state intervention, child protection intervention is a double-edged sword. When a child is in danger of
serious harm, temporary removal of the child from the home may be the only safe course, but there are a number of problems with the
way in which current child welfare policy works in cases of domestic violence. Child welfare workers and courts frequently blame
battered women for their children's exposure to violence. This blame suggests that the mother could control or could avoid the
batterer's violence. In many cases, neither is true. Battering is often unpredictable: Women are beaten for "failure" to have the proper
demeanor, for "failure" to prepare the "right" meal, for "failure" to desire sex at the "right" times. Separation is no guarantee of safety.
Most of the women who are killed and most women who are seriously assaulted by an intimate are separated at the time of the attack.
Thus, separation often requires careful planning. "Despite well-documented evidence that battered women are at
greater risk of harm from their abusers during separation, the child protection system's traditional approach
has been to require battered women to leave their abusers immediately or face the loss of their children."
Separation also requires resources. Women who separate need money for new housing - first and last month
rent plus deposit, new childcare arrangements, new school enrollments, and a new job. Many women must
make these arrangements while using inadequate and unreliable public transportation. When women separate
they often require a restraining order. They must then distribute copies of the order, along with a picture of the abuser, to the children's
schools and childcare providers and to the security personnel at their work site.
The failure of child protection workers to understand the dangers of separation and the importance of
women's material resources to their safety results in a failure to provide the resources and support that
battered women most require. Women are often coerced into signing "voluntary" plans that include agreements to participate in
such services as parenting classes and battered women's support groups but are not given assistance with the resources needed to
separate safely.
In addition, child protection workers often believe stereotypes regarding battered women that make
invisible their acts of agency. They are presumed to have mental health problems that make them likely to "choose" batterers.
Frequently these stereotypes of battered women intersect with and reinforce race-and class-based stereotypes.
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Poor women and particularly poor African American women are far more likely to be the subject of charges
of child neglect than are other women. "In child welfare cases, where the individual is pitted against the vast power and
resources of the state, the power imbalance is extreme. And in the vast majority of cases, the fact that the parent is female, poor,
uneducated, and nonwhite, exacerbates this inherent power disparity."
Aggressive criminal intervention also threatens to increase state control of battered women who are
involved, even peripherally, in criminal activity. Battered women's criminal activity is often connected to their abuse. For
example, battering partners coerce women into engaging in crimes that involve illegal drugs or prostitution, women drugs or sex in
order to earn money to fund an escape from battering partners, and women use illegal drugs to dull the physical and emotional pain of
abuse. The danger of identification, arrest, and conviction for drug related offenses is much higher for
women of color and particularly for African American women who live in heavily policed "drug zones."
Draconian drug laws with severe mandatory minimum sentences increase dramatically the risks associated with detection. Further,
mandatory sentencing regimes make it more difficult for women to make traditional arguments about their care taking responsibilities
or their abusive partner's coercion.
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The current language of the anti-domestic violence discussion perpetuates white-centeredness by making
race a non-issue. Most domestic violence data describes women without identifying the victim's race or
ethnicity. In our numbers-oriented society, the lack of distinct empirical data on battered women of color
marginalizes non-white domestic violence victims. One example of this marginalization is the difficulty in justifying the
funding for services targeted for battered Asian American women. By introducing race-less domestic violence statistics, the antidomestic violence movement affirms the status quo of white domination. The white centeredness is also evident in the discriminatory
policies and practices of some shelters.
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abuse used by Erik and Lyle Menendez to produce a hung jury in their first trial, to arguments that a woman
may castrate or shoot a brutal husband even though he is asleep. Americans have never been entirely comfortable
with the insanity defense as raised by John Hinckley after he shot President Ronald Reagan; that discomfort has been heightened by
what people view as an indefensible effort to extend insanity, narrowly defined, to include psychological states described by such
terms as temporary insanity or diminished capacity or by various syndromes premenstrual, postpartum, posttraumatic, and the
like. The emergence of these concepts suggest to many people that essential notions of personal
responsibility have been weakened by the frivolous use of dubious theories of social causation . The way to
explaining that behavior on the basis of conflicting theories presented by rival expert witnesses speaking psychobabble.
endangers our collective safety by legitimating a sense of vigilantism that reflects our frustration over the
apparent inability of law enforcement to reduce the rampant violence that engulfs us.
At a time of ever-hardening attitudes toward crime and punishment, it may seem anomalous that so many jurorsindeed, so many
Americansappear to be sympathetic to the abuse excuse. But it is not anomalous at all, since the abuse excuse is a modernday form of vigilantism a recognition that since official law enforcement does not seem able to prevent or punish abuse, the
victim should be entitled to take the law into his or her own hands.
In philosophical terms, the claim is that society has broken its social contract with the abused victim by not
according him or her adequate protection. Because it has broken that social contract, the victim has been
returned to a state of nature in which might makes right and the victim is entitled to invoke the law of
the junglekill or be killed. Indeed, these very terms were used in a recent Texas case in which one black youth killed two
other blacks in a dangerous urban neighborhood. The result was a hung jury.
But vigilantismwhether it takes the old-fashioned form of the lynch mob or the new-fashioned form of the abuse victims killing
her sleeping husbandthreatens the very fabric of our democracy and sows the seeds of anarchy and autocracy.
The abuse excuse is dangerous, therefore, both in its narrow manifestation as a legal defense and in its broader
manifestation as an abrogation of societal responsibility.
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appalled at those who, for example, applauded Ellie Nesler for murdering a defendant in a courtroom while
his hands were shackled. She said she did it to stop him from abusing other children, as he allegedly had abused one
of her children several years earlier. But her act of vigilantism denied her victim his day in court. No civil
libertarian or defense lawyer can approve that kind of lawlessness. It is the most basic violation of due
process.
Moreover, accepting abuse as an excuse for violence does nothing to break the cycle of abuse . We are told that
most abusive parents, husbands, boyfriends, and others were themselves victims of abuse by others. Taken to its illogical extreme, the
abuse would justify or at least mitigate the conduct of the abuser as well as victim. To be sure, the abuser is not abusing the same
person or persons who abused him. But many of these who advocate the abuse excuse do not limit the history of
abuse, which is deemed to excuse, solely to the actions of the particular abuser who was killed or maimed ;
they argue that the woman who killed should be able to introduce evidence of abuse by other men in her life. Under that approach,
virtually no one except the original abuser in history should be held responsible for his or her actions. The cycle of abuseviolence-abuse is thus perpetuated by the abuse excuse. The big losers will be the most vulnerable people in our society
those who most need the protection of our criminal laws. The aged, young children, mothers on welfare, the handicapped will all
suffer if criminal responsibility is compromised by the abuse excuse.
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responsibility carries a painful cost for the accused person because it subjects him to criminal punishment .
Understandably, the practitioner who is defending an accused will plead for an excuse, which invites a
determination that the accused was not responsible for his misconduct. The practitioner will argue that any available
excuse should be defined generously so that blame for the violation will be attributed, not to the accused's evil choice or character, but
to the force of circumstances beyond his control. Resisting these appeals, most criminal law scholars , as well as judges
and legislators, insist that the criminal law must hold fast to a definition of responsibility that is safe against all
but the most compelling claims for excuse. At the level of criminal law theory, the capacity for responsibility is
said to carry enormous benefits for the accused himself, even though it exposes him to punishment in
practice; it also carries benefits for law-abiding persons who share that capacity, because the law respects
the autonomy and privacy of responsible actors, as long as they do not offend. The theory of responsibility is
claimed to be peculiarly potent, for it guides legal practices outside the criminal law and shapes significant aspects
of social relations. Though actors who do not possess the capacity for responsible conduct may not be punished criminally, the
decision to excuse them constitutes a negative statement about their status as moral agents, which may expose them to supervision by
civil authorities. Thus, criminal law theorists claim that the law must deny the significance of differences in
character or opportunity produced by one kind of disadvantage or another, which defense lawyers offer to
excuse their clients' crimes, not only to ensure that the criminal law serves its important social control
function, but also to secure to individual citizens the benefits of responsibility.
HOLDING PEOPLE RESPONSIBLE FOR CONDUCT UNDERPINS JUDICIAL SYSTEM AND
PROVIDES MULTIPLE BENEFITS- EXCUSES SHOULD BE NARROWLY CONSTRUED
Anne M. Coughlin, Law Professor-Vanderbilt Law School, 1994, Excusing Women, California Law
Review, 82 Calif. L. Rev. 1, p. 16-7
Because criminal punishment is designed to be painful, whether justified by principles of retributivism, utilitarianism, or
a mixture of both, the accused person and his defense counsel have a great incentive to avoid a finding of
responsibility. Criminal law scholars, however, insist that the practitioner's understandable concern for the painful
costs of such a finding must not move us to define excusing conditions more expansively. Rather, by
carefully confining the scope of excuse and thereby necessarily inferring that virtually all actors are capable
of rational choice, we are said to guarantee many beneficial consequences for the guilty accused, for
persons contemplating violations of the criminal law, and for law-abiding actors, in that we secure our
prized self-sovereignty in a free society. The roots of these sometimes dizzying claims for the social efficacy of our model of
criminal responsibility extend at least as far back as Blackstone, whose brief observations about the normative value of criminal
excuses concluded that it is just for the law to excuse in cases where the actor's will was overborne because the concurrence of the will
when it has it's [sic] choice either to do or to avoid the fact in question, [is] the only thing that renders human actions either
praiseworthy or culpable.
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treatment or preventive detention, with these solutions soon giving way to preemptive incarceration, in
which actors thought to be deviant would be subjected to behavior modification even before they had committed
any legal infraction. In the event that his prediction lacked potency for those of us who feel remote from the subculture of deviance
identified by Judge Bazelon, Morse grimly observed that criminal offenders are produced by a complex interaction among numerous
biological, psychological, social, and economic factors; thus, a decision to junk our model responsible actor ultimately
would authorize intrusions into the liberty and privacy of all persons to ferret out, and treat, potential
criminogenic influences. The erosion of the safeguard of the responsible actor proposed by Judge Bazelon carried ominous
ramifications, indeed. Rather than being left alone by the state, free to rely on our own choices as the measure by which we shall live,
more and more of us would find ourselves subjected to the kind of supervision now thought necessary to monitor and restrain the
activity of animals, children, and the insane.
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actor who invokes the duress excuse and proves that he violated the law under threat of death is thought to
have labored under a volitional defect in that death threats profoundly disrupt the normal psychological
processes by which human beings control their conduct. Aware of the wrongfulness of the coercer's
demand, the coerced actor does choose to commit the crime rather than suffer a fatal or grievous wound,
but the alternatives open to him were so agonizing that we accept his claim that he was carrying out a
course of conduct that he did not choose - and would not have chosen - for himself.
ABUSE EXCUSES STIGMATIZE VICTIMS AND SPUR MORE VIOLENCE
Alan M. Dershowitz, Law Professor-Harvard, 1994, The Abuse Excuse: and other cop-outs, sob stories,
and evasions of responsibility, p. 6
The worst consequence of these abuse excuses is that they stigmatize all abuse victims with the violence of
the very few who have used their victimization as a justification to kill or maim . The vast majority of abuse
victims are neither prone to violence nor to making excuses. Moreover, abuse excuses legitimate a cycle of
abuse and further abuse, since most abusers have themselves been victims of abuse. Thus, by taking the abuse
excuse to its logical conclusion, virtually no abusers would ever be culpable.
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Among the recent excuses that have been accepted by at least some jurors have been battered woman
syndrome, abused child syndrome, rape trauma syndrome, and urban survival syndrome. This has
encouraged lawyers to try other abuse excuses, such as black rage. For example, the defense lawyer for
Colin Ferguson the black man accused of killing white commuters on the Long Island Railroadhas
acknowledged that his black rage variation on the insanity defense is similar to the utilization of the
battered womans syndrome, the posttraumatic stress syndrome and the child abuse syndrome in other cases to negate criminal
accountability.
that decisions to break the law are sometimes blameless because those decisions are determined by
preceding factors, and once we acknowledge that in some cases we must inquire into the roots of bad
intentions and choices to evaluate blameworthiness, we naturally begin to wonder why we do not inquire
into the roots of decisions to break the law in all criminal cases . Why not always broaden the time frame and consider
the impact of background circumstances on a defendant's capacity to choose? For example, why not weigh the impact of a
disadvantaged social background on a defendant's criminal behavior in all cases in which the defendant
comes from such a background?
ABUSE EXCUSE UNDERMINES PERSONAL RESPONSIBILITY
Erin Mayton, JD Candidate-University of Texas, 1997, Sliding Down the Slippery Slope Away From
Personal Responsibility: The Abuse Excuse, American Journal of Criminal Law, 25 Am. J. Crim. L. 193,
p. 196-7
Throughout the book, Wilson is concerned that the ever-increasing list of recognized excuses is right on the
edge of the slippery slope sliding further away from personal responsibility. He quickly discusses several defenses
including postpartum depression, posttraumatic stress disorder, premenstrual syndrome, black rage, and drug and alcohol addiction.
He suggests that with the development and approval of such personalized defenses, expert testimony is
replacing individual accountability. Wilson argues that all human behavior is caused by something, and as a result, there is no
reason to waste time and resources explaining that something in each case. He argues that society allows so many
explanations and justifications that, ultimately, everyone will have an excuse for anything they do . Although it
is not possible to excuse all criminals from responsibility, Wilson asserts that there are so many excuses for crime, why should society
accept some and ignore others?
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deserts perspective) courts can recognize the restricted determinism of duress or provocation but not the
fuller determinism of the disadvantaged social background excuse. As far as what a person's choice does or
does not reveal about that person's "true" character, what difference does it make whether his choice to do
wrong is rooted in an immediate threat from an armed assailant (restricted determinism) or a brutally
abusive childhood (fuller determinism)? In pondering this question, we must fully contemplate the desperate plight of
battered children: "Victims of child abuse are likely to be kids from poor and often profoundly twisted families. They live in nightmare
worlds of filth and hunger and violence and extreme pain. Often their stories are case studies in unrelieved torment, sickening to hear
about, sordid beyond belief.")
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philosophical argument is addressed to the problem of determinism and responsibility in the standard cases
of wrongdoing. It is difficult to resolve this issue except by noting that we all blame and criticize others, and in turn subject
ourselves to blame and criticism, on the assumption of responsibility for our conduct. In order to defend the criminal law against the
determinist critique, we need not introduce freighted terms like "freedom of the will." Nor need we "posit" freedom as though we were
developing a geometric system on the basis of axioms. The point is simply that the criminal law should express the way we
live. Our culture is built on the assumption that, absent valid claims of excuse, we are accountable for what
we do. If that cultural presupposition should someday prove to be empirically false, there will be far more
radical changes in our way of life than those expressed in the criminal law.
RELAXING SELF-DEFENSE STANDARD FOR BATTERED WOMEN SNOWBALLS
MENEDEZ VERDICT PROVES
George P. Fletcher, Professor-Columbia University School of Law, 1996, Self-Defense and Relations of
Domination: Moral and Legal Perspectives on Women Who Kill: Domination in the Theory of Justification
and Excuse, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 553, p. 575-6
The Menendez debacle leaves two messages for us to ponder. First, there is no way to limit arguments of
domination and abuse to the justification of force in situations of ongoing domestic violence between men
and women (or between adult gay couples). Some feminists may have thought that advancing the battered woman's claims of selfdefense would help women as a special class that deserved special protection after centuries of discrimination. The battered woman
syndrome would represent something like affirmative action in the courts; it would compensate for all the prejudice that had
accumulated against women, particularly in rape cases. But if there is any principle guiding legal thought, it is the
egalitarian impulse toward generalization by analogy. The courts cannot recognize a defense for the blue eyed and refuse
it to the brown eyed. There is no way of limiting a new defense to a privileged class. If the "syndrome" relaxes
the criteria of self-defense for women, it must have the same impact for battered men and battered children.
This was obvious to Leslie Abramson, Erik's lawyer, who made it clear from the outset that the defense would
develop a defense for battered children that would draw on the innovations developed for battered women.
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syndrome are commonly asserted abuse excuses. Although some people may not accept them as valid
defenses to criminal behavior, defense attorneys expect to use abuse excuses whenever the opportunity
should present itself. Few people, however, anticipated the black rage defense claimed by Colin Ferguson, the
assailant in the Long Island Railroad shooting, and even fewer people were willing to accept the black rage
defense. Some commentators argue that as long as the excuses are legitimate, they should be allowed. Others,
including some defense attorneys, warn that accepting an expanding number of abuse excuses as defenses
eventually will undermine the functioning of our criminal justice system .
BLACK RAGE SYNDROME FLOWS DIRECTLY FROM BATTERED WOMAN SYNDROME
Tosha Yvette Foster, JD Candidate, 1997, From Fear to Rage: Black Rage as a Natural Progression From
and Functional Equivalent of Battered Woman Syndrome, William and Mary Law Review, 38 Wm and
Mary L. Rev. 1851, p. 1871-2
Both battered woman syndrome and black rage initially manifest themselves as defense mechanisms to
forms of abuse. The battered woman realizes her limited options and becomes passive in response to repeated physical, emotional,
and sexual abuse. Likewise, the brutalized black person, seeing and experiencing daily the historical and
perpetual ill-treatment of blacks and perceiving that blacks are akin to an endangered species, develops a
coping mechanism centered around paranoia. Neither battered woman syndrome nor black rage are independent forms of
mental illness but are subsets of other recognized forms of psychoses.
Additionally, expert testimony concerning both battered woman
Furthermore, battered woman syndrome and black rage serve to make the criminal justice system more
inclusive. Various legal scholars argued that the legal system, including the criminal justice system, was
designed for the writers of the laws, namely white males. Battered woman syndrome allows the reality of women's lives
to enter the legal landscape. Similarly, acknowledging black rage permits blacks to be brought onto a more even
playing field. Battered woman syndrome and black rage thus serve the same function, to ensure that "equal
justice," written primarily by and for one group of people, is received by all groups of people.
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and to a domestic abuse center at the local county hospital. The police would not intervene unless Judy took
out a warrant for John's arrest, and that she feared to do; she had experienced beatings in retaliation for prior efforts to
leave the scene of her suffering. The situation went from bad to worse. John was enraged and out of control, as a boarder testified, for
having been arrested on a drunk driving charge. At that point he forbad Judy from eating for three days prior to the shooting. The
family tried to get food to her, the mother sent over groceries, but Judy Norman feared retaliation and a beating if she disobeyed her
tyrannical husband. The words that we have availed to describe these anti-human conditions are too easily subject to abuse. This
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Retaliation is the standard case of "taking the law into one's own hands." There is no way, under the law, to
justify killing a wife batterer or a rapist as retaliation or revenge, however much sympathy there may be for
the wife wreaking retaliation. Private citizens cannot function as judge and jury toward each other. They
have no authority to pass judgment and to punish each other for past wrongs .
Those who defend the use of violence rarely admit that their purpose is retaliation for a past wrong. The
argument typically is that the actor feared a recurrence of the past violence, thus the focus shifts from past to future violence,
from retaliation to an argument of defending against an imminent attack. This is the standard maneuver in
battered-wife cases. In view of her prior abuse, the wife arguably has reason to fear renewed violence. Killing the husband while
he is asleep then comes into focus as an arguably legitimate defensive response rather than an illegitimate act of vengeance for past
wrongs.
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exonerate the guilty because of substantive and procedural features intended to protect the innocent. In no
case, therefore, does a verdict of "not guilty," even one known through a special verdict or otherwise based on a pure
justification defense, necessarily represent moral or legal exculpation. Thus, drawing a strong moral conclusion
from any acquittal without examining the facts is not logical . Proposals to draw moral messages from acquittals present
the "disease as cure" problem, changing agnostic "not guilty" verdicts that are accurate in every case to potentially morally misleading
ones by assigning reasons that will sometimes be false.
WHILE LAWS ARE DERIVED FROM MORAL PRINCIPLES WHAT IS LEGAL IS NOT
NECESSARILY THE SAME AS WHAT IS MORAL
Eugene R. Milhizer, Associate Professor of Law, Ave Maria School of Law, 2004, Justification and
Excuse: What They Were, What They Are, and What They Ought to Be, St. Johns Law Review, 78 St.
John's L. Rev. 725, p. 854-5
As traditionally and correctly understood, all legitimate laws, including criminal laws, are derived from and
consistent with transcendent moral principles and norms. This is not to suggest that the criminal law's
proper purpose is to codify morality, i.e., to describe comprehensively moral behavior and punish all departures from it.
Much of what is deemed immoral is left unregulated because of countervailing interests involving
individual liberty and freedom, because the conduct is not sufficiently harmful to society to warrant
regulation or punishment, or because of other prudential reasons. For example, although lying is immoral, the
criminal law stigmatizes only certain lies that are especially harmful, such as perjury and false official
statements. This traditional understanding of law and morality also recognizes that some laws, such as traffic regulations,
lack an obvious moral content, and that the body of law must regulate the mundane as well as the profound. There is no doubt,
however, that a traditional understanding of the inter-relationship between law and morality recognizes that the former's very
legitimacy depends upon its adherence to and consistency with transcendent moral norms. The positive law, in other words, was
always properly understood as being a derivative and selective extension and expression of the moral law that undergirds it.
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husband. She escaped conviction because the jury believed she suffered from a disabling mental condition
that rendered her morally blameless for her wrongful actions. In short, Hughes, the woman, was excused; her
actions, however, were not justified.
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precisely that it is a defense against an act of aggression: "Self-defense is only understandable as a response
to another's aggressive conduct." And it is imminence that is the measure of aggression: "when the right to
self-defense is broadened to any person that might potentially inflict harm, we blur the distinction between
offense and defense. . . . We then have no ability to distinguish self-defensive conduct from aggressive conduct." This
requirement that there be prior aggression is a moral one, for Ferzan: "the moral assessment of both the
aggressor's and the defender's rights hinges on some notion of aggression. " One who invokes self-defense
before there is an imminent threat loses the moral high ground and thus the justification for his act : "The
aggressor's action 'starts it.' We can only understand defense by comparison with offense. The aggressor's action signifies the breach of
the community rules and the lack of respect for the defender. It is this action that makes self-defense understandable." The
imminence requirement thus ensures that the force really is defensive and therefore morally justified.
STRONG PRESUMPTION AGAINST WEAKENING THE IMMINENCE RULE GIVEN THE
DANGERS OF PRIVATE VIOLENCE
Whitley R. P. Kaufman, Philosophy Professor-University of Massachusetts, 2007, Self Defense,
Imminence, and the Battered Woman, New Criminal Law Review, 10 New Crim. L. R. 342, p. 369
In recent years we have seen a major attack on the imminence rule, especially in its application to battered women. The wide range of
proposals for modifying the imminence restriction for battered women include eliminating the rule entirely, subordinating it to
necessity, modifying it, supplementing it, making it more flexible, subjectivizing it, contextualizing it, broadening it, and so forth. My
purpose here has been to sound a cautionary note in this debate. While there may well be some genuine cases where the
application of the imminence rule serves an injustice, one ought to be very careful in tinkering with a
crucial limitation on the right to violent self-help. This is particularly important given the serious doubts that have been
raised about whether the proposed reforms would have much impact on battered women homicides. As Holly Maguigan emphasizes,
the existing law of self-defense in most jurisdictions is "consistent with the self-defense claims of battered
women who kill"; to the extent there is a problem, it has to do with "unfair application of existing law," not
with the current standards of self-defense per se.
The imminence rule, as we have seen, is a crucial, independent restriction on the individual right to resort to
violence against others, especially deadly violence. The first task of the state is the control of violence, and
the restriction of individual violence to cases of genuine emergency when there is no recourse to state
protection is crucial to establishing this monopoly on violence. Civil life is, as Pufendorf warned, "too fragile to
allow each man to exact what he believes to be his due by violent self-help." Moreover, it is an essential
element of the rule of law that each person-even batterers-have a right to due process of law, especially
when their lives are at stake. If the rules of self-defense permit an exception to this principle in the case of
imminent danger, it is an exception that is best kept to an absolute minimum. As Joshua Dressier cautions, "we
should hesitate long and hard before we promote a criminal defence that categorically justifies the taking of life before it is
immediately necessary." Before we proceed with any modification (let alone elimination) of the imminence
restriction, we had better consider very carefully the implications of such a radical change in die longestablished and highly effective principles controlling the private resort to violence .
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Self-defense is about repelling attacks-or more broadly, about fending off possible violations of rights. The first
question, then, is when the impending violation is sufficiently proximate to trigger a legitimate response . The
most common formula is that the attack must be imminent; it must be about to happen.
The requirement of imminence means that the time for defense is now. The defender cannot wait any longer. This
requirement distinguishes self-defense from the illegal use of force in two temporally related ways. A preemptive strike against
a feared aggressor is illegal force used too soon, and retaliation against a successful aggressor is illegal
force used too late. Legitimate self-defense must be neither too soon nor too late.
In the case of a preemptive strike, the defender calculates that the enemy is planning an attack or surely is likely to attack in the future,
and therefore it is wiser to strike first than to wait until the actual aggression. Preemptive strikes are illegal in international law as they
are illegal internally in every legal system of the world. They are illegal because they are not based on a visible manifestation of
aggression; they are grounded in a prediction of how the feared enemy is likely to behave in the future.
The line between lawful self-defense and an unlawful preemptive strike is not so easily staked out, but there are some clear instances
of both categories. Because the general principles of international law are the same as those of domestic legal systems, we can ponder
some dramatic examples among current international events.
Aquinas was the first to note the distinction and to limit self-defense to an intention designed to repel the
attack. Without this distinction, it is tempting to think of self-defense as a form of private punishment,
designed to make the aggressor suffer for the attack.
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The traditional requirement of imminency -- a temporal requirement, a relative closeness in time between the aggressor's
unlawful threat and the innocent person's defensive efforts to repel it -- serves an important, life-affirming, purpose. To
suggest that a battered woman should be able to kill today because sooner or later the batterer will
inevitably kill her strikes me as unacceptable. First, it is hard to imagine that it is necessary to kill to prevent
deadly force from being inflicted far down the time-line. The greater the time span between the defensive act and the
predicted act being defended against, the greater are the options available to the innocent person. Some reasonable temporal
requirement is needed.
The more we permit early use of force, the greater the risk that the force used was not necessary. But,
because deadly force is used -- and the putative aggressor is now dead -- we will never know for sure if the feared
attack was going to occur and whether some other, less extreme, remedy would have been sufficient . After
all, there is the slight possibility -- remote in J.T. Norman's case but perhaps less so in some other battering cases -- that the batterer
will change his behavior if permitted to live. Maybe he will "see the light"; more plausibly, since so many batterers have drinking
problems, he will get help to combat his alcoholism; or maybe he will go through counseling or anger management training. Professor
A1 Alschuler, speaking on a different issue, has remarked that "even funnel clouds" -- danger -- "sometimes turn around, and human
beings" -- because they possess free will -- "sometimes defy predictions." I would suggest that human tornadoes will defy our
predictions far more often than their cousins in Nature, if they are allowed to live. We should not entirely
give up on the ability of people to change -- that is one reason why some reasonable temporal requirement
is in order.
Beyond this, there is always the possibility that some other event will intervene to render an apparent
necessity to use deadly force inoperative. Maybe the batterer will have a debilitating stroke. Or, maybe, as sometimes
happens, the batterer will abandon the family, thus freeing the woman from further abuse, and rendering
deadly, autonomy-protecting, force unnecessary. My point, simply, is that once the law gets away from a
requirement of an immediate need to use force and begins to authorize preemptive strikes, we increase the
risk of repeating on an individual scale what happened in Iraq -- a claimed need to invade preemptively to
get rid of weapons of mass destruction that proved non-existent .
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transformation of the battered woman's syndrome into a general defense of abuse as a justification for
retaliation." Dershowitz also sees a "growing justification for vigilante violence by those who claim they
cannot receive justice from the legal system ." Joshua Dressier argues that the underlying, unstated premise in many
battered women cases is that the woman is justified in killing her abuser "for the simple reason that he deserves it." Indeed, some
feminists have even explicitly argued that the battered woman should be allowed to carry out vigilante justice and punish her abuser.
Relaxing the imminence rule only invites retaliation by blurring the line between defensive force and
retaliatory after-the-fact force.
IMMINENT MEANS ABOUT TO OCCUR
Whitley R. P. Kaufman, Philosophy Professor-University of Massachusetts, 2007, Self Defense,
Imminence, and the Battered Woman, New Criminal Law Review, 10 New Crim. L. R. 342, p. 344-5
"Imminent" is not a technical legal term , but is used in its ordinary or dictionary meaning, and indeed is often not defined at
all in statutes and jury instructions. The most common definition given is "about to occur"; that is, a danger is
imminent when it is not a future but a present threat. It is sometimes argued that "imminent" must be sharply
distinguished from the term "immediate," on the grounds that the latter implies a far more urgent, pressing, present threat than does the
former. However, it would be misleading to insist on too precise a distinction between these two words, for they are often used
interchangeably in common speech as well as in legal circles. A survey of case law shows that courts often use the two words
concurrently or even interchangeably. Paul Robinson thinks that imminence, taken literally, requires that the defendant
wait until the attacker "is standing over him with a knife"--i.e., is no less strict than immediacy. Black's Law
Dictionary defines "imminent" as "near at hand; mediate rather than immediate," but then confusingly defines "imminent
danger" this way: "In relation to homicide in self-defense, this term means immediate danger." Wayne LaFave
finesses the distinction by defining an imminent threat as one that is "almost immediately forthcoming." And the Model Penal Code
standard for self-defense adopts the phrase "immediately necessary"--a rather opaque phrase that apparently turns "imminence" into
"immediacy" (see discussion in the next section). It is thus far from obvious that there is an important or useful
distinction to be drawn between "imminent" and "immediate, " and I will use them interchangeably in the remainder of
this essay.
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lies, the less likely it is that it will be necessary to counter it with present force, since there is ample time to
find other (nonviolent) responses. Further, since temporally distant harm is usually highly uncertain and even
speculative, it is harder to justify a claim that a violent response is necessary right now . Lots of things could
happen between now and then to make the use of force unnecessary. But by the time the threat becomes imminent, there is a far more
plausible case to be made that it is necessary to take decisive action.
Moreover, the relation between imminence and necessity is imperfect. It is easy to conceive of situations
involving imminence but not necessity, and vice versa. For example, if a security guard yells out to me:
"identify yourself or I'll shoot!" here there is an imminent threat, but since I can avoid any harm by simply
identifying myself, there is no necessity to use force. Somewhat more counterintuitively, it is also easy to conceive of
cases where force is necessary even though there is not an imminent threat. Indeed, we need look no further than the very sort of case
that has inspired the current debate: the woman who has been repeatedly abused in the past and has no alternative for protecting
herself against future harm than to attack her abuser preemptively. It is true that in general the further off in the future the threat is, the
less likely it will be necessary to act now. However, this relation is a matter of degree, not of intrinsic connection. Sometimes the best
or indeed the only time to act defensively is before the threat ripens into an imminent danger, and in such cases it is perfectly
reasonable to assert that it is necessary to act now, rather than risk disaster by waiting too long. Indeed, this is precisely how some
commentators interpret the case of Judy Norman: that in her judgment, it was necessary to act decisively, as the police were unable to
help her, and to wait until the moment of attack by her husband would be to risk serious abuse or even death if she did not take the
opportunity to act preemptively. The question then is how to handle cases where necessity and imminence diverge.
According to the Proxy Thesis, the use of force by the individual should be permitted whenever it is necessary, even if the threat is not
imminent. It would be simply absurd to deny a person the right to defend herself where force was necessary, based on a rigid,
formalistic adherence to a requirement of imminence. The problem for the Proxy Thesis, however, is that it fails to recognize how in
fact our legal system handles cases where imminence and necessity diverge. Where there is the necessity for the use of force, but no
imminent threat, the individual is not permitted to resort to force herself. This does not mean she must passively surrender to the
threat, or wait until it becomes imminent before she can act; rather, the law permits her to turn to the authorities for protection, i.e.,
call the police. Crucially, the lack of an imminent threat does not entail that the police or courts are prohibited
from using force (or the threat of force) as necessary to protect the individual. The authorities may use all
necessary and proportionate force to protect the woman, including for example arresting the abuser, or
issuing a protective order (backed by the threat of force). Thus we have identified a function for the imminence
rule that is wholly distinct from its role as an indicator of necessity: it establishes a strict division of the
right to use force. The individual may use force only when such force is necessary and the threat is
imminent; the state however may use force when it is necessary, even if the threat is not imminent (assuming
proportionality and other requirements are satisfied). Just why there exists this division of labor has, of course, not yet been
established. But the Proxy Thesis fails to recognize this division, and the crucial role of imminence in
establishing the division, and hence must be rejected.
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distinguish sharply between permissible defense and impermissible vengeance, and thus to avoid protracted
violence of the feud or vendetta. Administering vengeance was the province of the court system, not the
individual. Thus Placentinus, arguing that defense must take place on the same day, justified this restriction on the grounds that a
day was sufficient time to summon help from the authorities (though why others such as Azo considered the period of imminence to
be as long as a year is less clear). In any case, the fundamental justification for the permission to resort to private violence in selfdefense was that the public authorities would not be able to protect the individual against an immediate attack. Cicero's famous
defense of Milo (52 BCE) eloquently expresses this position: "When arms speak, the laws are silent, they bid none to await their word,
since he who chooses to await them must pay an undeserved penalty ere he can exact a deserved one."
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defense against an imminent threat, only gradually became established during the crucial formative period
of the modern world order in the sixteenth and seventeenth centuries, the period of "transition from feudal Europe to the
modern Europe of sovereign states." Essential to this development was the elimination of "private war" by
channeling it into the modern idea of self-defense.
The many jurists and philosophers who contributed to this modern synthesis included Francisco Vitoria (1485-1546) and Alberico
Gentili (1552-1608), but especially Hugo Grotius (1583-1645). Grotius, writing during the devastating European wars of religion,
sought a secular foundation for social order, based on natural law principles rather than Christian doctrine. His great treatise The
Rights of War and Peace (1625) raised Seneca's famous question: "Why do we restrain homicide, and the murder of individuals, but
glory in the crime of slaughter, which destroys whole nations?" That is, why do we permit nations to wage war, but
restrict individuals from using violence? Grotius' answer is that wars are only permissible when they are for a just cause.
But the difference between nations and individuals is that nations are in effect in a state of nature, not of civil law: "where the power
of law ceases, there war begins." War may be the only way nations have to vindicate their rights. In contrast, for
individuals in civil society, "there are methods in law to prevent intended injuries, as well as actions for
those actually [i.e., already] committed." Thus individuals are not permitted to resort to force to vindicate their
rights, because the state exists for that purpose. The only exception to this: "when our lives are threatened
with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided." When under an immediate
threat, the individual is unable to invoke the protection of the state, and so has entered what is in effect a state of "private war,"
justifying him in using extreme force. While we today no longer recognize the idea of "private war," we have inherited this rule of
self-defense, grounded in the essential limitation to cases of imminent threat, where government assistance is not available.
The imminence rule thereafter became a fixture in the discussions of the private resort to violence.
Pufendorf's On the Duty of Man and Citizen (1673) articulates this same principle, that persons who are subject to civil authority are
severely limited in their right of self-defense:
But those who are subject to civil government are only justified in using violence in self-defense when time
and place do not allow appeal to the assistance of the magistrate to repel an injury by which life or some
irreplaceable good, as valuable as life itself, is thrown into immediate danger . But this is confined to repelling the
danger; vengeance and a guarantee against attack in the future must be left to the judgment of the
magistrate.
John Locke's Second Treatise of Government (1690) reiterates the argument:
Thus, a thief whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill when he sets on me to rob
me but of my horse or coat, because the law, which was made for my preservation, where it cannot interpose to secure my life from
present force, which if lost is capable of no reparation, permits me my own defense and the right of war, a liberty to kill the aggressor,
for remedy in a case where the mischief may be irreparable. Want of a common judge with authority puts all men in a state of Nature;
force without right upon a man's person makes a state of war both where there is, and is not, a common judge.
And the eighteenth-century French philosopher Montesquieu, in The Spirit of the Laws (1748), held that:
Among citizens, the right to natural defense does not carry with it a necessity to attack. Instead of attacking, they
have the recourse of the tribunals. Therefore, they can exercise that right of defense only in cases that occur so
suddenly that one would be lost if one waited for the aid of the laws.
William Blackstone's extraordinarily influential Commentaries on the Laws of England (1764-1769) stated the imminence
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is much more conducive to the peace of society for a matter in dispute to be decided by a disinterested
person, than by the partiality and prejudice of the party aggrieved ." The Public Authority criterion thus ultimately
rests on the venerable natural law principle (also dating back to ancient Rome) that no one should be a judge in his own
case; the decision to use force against another person must be made by an objective and disinterested
authority. We go to great lengths to ensure the objectivity of such decisions: independent judges, unbiased juries, strict rules of
evidence and procedure, the right to appeal, etc. The use of force must be justified by an objective authority in a
position to decide without bias or interest in the case. Thus the state reserves the right to the use of
retaliatory (punitive) force against past harm, as well as preemptive/preventive force against future threats.
The single exception to this principle is where the immediacy of the threat rendered it impossible to resort
to external protection, and thus licensed self-help. Even in such cases, notably, the state has always reserved the right to be the
arbiter after the fact as to whether the defensive force used was justified from an impartial perspective. Note that this analysis suggests
a pragmatic standard for defining the imminence restriction: a threat is imminent when there is insufficient time to enlist the aid of the
authorities to protect oneself.
recognize imminent threats that would not be perceptible to the ordinary person, by entering into a state of
"hypervigilance" which permits them to recognize subtle signs of danger. Yet such claims appear to go far
beyond any documented evidence demonstrating how reliable such abilities are, how many "battered women"
develop them, or how to identify which women have them (Lenore Walker, for example, simply tells us unhelpfully that
"behavioral principles support this conclusion). Elizabeth Schneider, despite repeatedly admonishing us not to generalize about
battered women since each case is unique, insists nonetheless that juries be informed that "the battered woman's prediction of the
likely extent and imminence of violence is particularly acute and accurate." Such sweeping generalizations would in effect
bypass the imminence rule by stipulating the presence of a danger that only the battered woman, with her
supernormal capacities, would be capable of recognizing. No doubt some women do develop such
capacities, but it is of course equally possible that victims of repeated abuse develop the opposite tendency,
and become hypersensitive to signs of danger even where they do not exist, or become subject to the
natural human tendency towards self-serving bias in regards to the use of force against others in selfprotection--i.e., the very reason for the imminence rule in the first place.
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advocates sometimes suggest eliminating the reasonableness requirement altogether in favor of a purely
subjective standard: if the victim felt in danger (even if there was no real danger), then she was justified in
using force. It is even sometimes suggested that, to the battered person, "the threat always feels imminent"
--thus licensing violence at any time or place, if one accepts the subjective standard of imminence.
But any such radical subjectivization of the law of self-defense, even apart from the moral relativism on
which it is based, overlooks the problem of potential bias in one's perception of the need for the use of force
against others. Indeed, it would legitimize those biases by accepting them as valid legal defenses. Such a
position ignores the idea of responsibility to others, especially when it comes to the use of deadly force;
merely feeling afraid of someone else does not entail the right to shoot him. The criminal law exists in part
to demand that individuals live up to higher standards of moral responsibility than they might otherwise.
Nor would civil society even be possible if each individual were granted a license to resort to vigilante
violence any time he felt in danger. Not only would such a law be subject to gross abuse, but recall that the very reason for
the objective imminence standard in the first place is the natural human tendency to overreact to possible future threats, and to err on
the side of imposing costs on others rather than risk any danger to oneself. It bears emphasizing that the victim of the killing will not
be available to rebut the claim that he was presenting an imminent threat. It is certainly possible to consider unreasonable mistakes as
excusing (rather than justifying) conditions, but even here it is important that the law insist that people aspire to the highest possible
standard of objectivity, particularly when making a decision about taking the life of another. As David Gauthier argues,
A legal system which failed to recognize the right, which failed to recognize the justification each person has to act in her own
protection in the light of imminent danger, could have no valid claim on the allegiance or obedience of those it sought to bring within
its sway. But in recognizing the right, the law brings self-defense within its ambit; while it may not deny the right,
it may and must, of course, delimit it. The right of each person to defend herself is not, and could not be
understood as, a right to do whatever she might allege to be required for her defense. Such a subjectivism
would be altogether corrosive to a legal system.
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Dershowitz cites the case of Lyle and Erik Menendez to discredit the validity of the battered child defense
in parricide cases. Dubbing it the "paradigm of the abusive and successful employment of the abuse
excuse," Dershowitz decries the eighteen and twenty-one-year-old Menendez brothers who killed their parents in their Beverly Hills
mansion on August 20, 1989 in a seemingly premeditated fashion as " "preventive' executioners." Despite evidence that the brothers
planned the murders and had several means of escape available to them, the trial resulted in a hung jury after testimony that they had
been sexually abused by their parents. Dershowitz asserts that outcomes such as this "endanger our collective
safety by legitimating a sense of vigilantism that reflects our frustration over the apparent inability of law
enforcement to reduce the rampant violence that engulfs us."
LEGITIMIZING BATTERED CHILDRENS KILLING OF THEIR PARENTS UNDERMINES
THE JUSTICE SYSTEM AND LEADS TO ANARCHY
Catherine S. Ryan, JD Candidate, 1996, Battered Children Who Kill: Developing an Appropriate Legal
Response, Notre Dame Journal of Law, Ethics & Public Policy, 10 ND J. L. Ethics & Pub Pol'y 301, p.
321-2
Justice Thomas continues by warning of the inevitable dangers of adopting Battered Child Syndrome as a
justification for the taking of a human life, positing that if judicial recognition of an abuse-based defense
were given, there is reason to fear that the number of individuals seeking to justify their murderous actions
upon similar lines would increase exponentially. The court avoids this feared outcome by refusing to admit the expert
forensic psychiatrist's testimony because it had not "been presented any evidence of any court's acceptance of the science of the
battered child, [and of] what can be predicted from the battered child."
In affirming the trial court's decision to exclude the testimony of the forensic psychiatrist, Justice Thomas looks to the importance of
the reasonable person standard and its foundation in a shared common experience. He states that although many "seem to be
prepared to espouse the notion that a victim of abuse is entitled to kill the abuser, that special justification
defense is antithetical to the mores of modern civilized society." Implicit in this statement is the notion that
if juries acquit victims who kill their abusers, juries are betraying their duty to society. By relieving the
actor of culpability, the jury allows the actor to assume the role of both judge and jury. The actor
circumvents the entire rule of law by being able to decide what amount of abuse must be endured before he or she is allowed
to exact fatal retribution from the abuser. This is what leads Justice Thomas to conclude that expansion of the selfdefense justification would "amount to a leap into the abyss of anarchy ."
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These five elements of self-defense -imminence, unlawfulness, necessity, proportionality, and intentioninterweave in the standard legislative definitions of legitimate defensive force . Consider the Model Penal Code:
"[Subject to certain limitations] the use of force upon or toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present
occasion."
The requirement of imminence is reflected in the language "immediately necessary . . . on the present occasion." The element of
"unlawfulness" is made explicit; the principle that excused attacks are unlawful is recognized in section 3.11, which explicitly limits
the scope of section 3.04. The phrase "immediately necessary" also captures the necessity of the response. The element of
proportionality is made explicit in section 3.04(2)(b), which limits the use of deadly force to cases of threatened homicide, serious
bodily harm, kidnapping, or rape. The required intention to defend oneself comes through in the pivotal position occupied by the word
"believes" in the drafting of the section.
The word "believes" is so centrally located in section 3.04(1) that it appears that what is at stake is not an actual unlawful attack, but
merely the belief of the actor that an attack is under way. This mode of drafting captures what is in fact a deep misunderstanding about
self-defense in American jurisprudence. The requirement of intention-number five in the list above-has become the
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the defendant's situation does introduce an element of subjectiveness into the inquiry, it should not extend
to encompass the defendant's psychological and emotional characteristics. To do so would be crossing the
line into the law of those few states utilizing a wholly subjective standard for self-defense.
In such states, "an accused's actions are to be viewed from the standpoint of a person whose mental and physical characteristics are
like the accused's and who sees what the accused sees and knows what the accused knows." This standard clearly would incorporate
the perceptual irregularities caused by battered child syndrome, because it would "allow[] the jury to judge the reasonableness of the
accused's actions against the accused's subjective impressions of the need to use force rather than against those impressions which a
jury determines that a hypothetical reasonably cautious person would have under similar circumstances." Consideration of
battered child syndrome and its effect on the defendant's perceptions is consistent with the subjective
standard even in a nonconfrontational situation because the jury only has to believe that the defendant
suffered from the syndrome and believe his testimony that his perceptions were affected in such a way as to
make the harm imminent and the killing necessary.
Incorporating the defendant's altered perceptions into the objective standard, however, proves inherently inconsistent. In the case of
a nonconfrontational killing, despite expert testimony explaining how battered child syndrome affects an
individual's perceptions, the jury has no meaningful way to determine whether a particular battered child
defendant's belief in the imminence of danger and necessity of deadly force was reasonable. The inquiry is
too subjective and specific to an individual defendant to impose an external standard . At best, the jury can listen
to the expert testimony and believe the defendant's version of what he perceived and what he believed were the implications.
However, this reduces the objective standard to one which is wholly subjective.
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justifications, excuses, and mitigations is an important one that is becoming unfortunately blurred by some
recent excuses. For example, the battered woman syndrome is generally introduced as part on self-defense,
which is a complete justification. Yet many believe it should be regarded as a mitigating factor or, at most,
as an excuse, since we do not want to encourage abused women (or children) to take the law into their own
hands. We may want to excuse the conduct in extreme cases, but we surely dont want to justify it.
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then to raise the abuse excuse, instead of societys spending money and devoting significant societal
resources to preventing abuse, allows us to pretend we are confronting the problem, while perpetuating the
very cycle it is supposed to break.
The law should do more to facilitate the separation of the abuser from the abused by removing the abuser and preventing recurrence
of the abuse. Taking the law into ones own hands should be a last resort, not a preferred solution. The abuse
excuse, coupled with phony rhetoric and statistics about the futility and danger of leaving, sends precisely the
wrong message. It is little more than a rhetorical, feel-good, cheap, short-term nonsolution to a complex and
pressing societal problem that deserves real solutions, high priority, and significant allocation of resources .
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AT: Societal Failure to Protect Domestic Violence Victims Justifies Relaxing SelfDefense Standards
ARGUMENT THAT STATE FAILURE TO PROTECT JUSTIFIES EXEMPTION FROM STATE
MONOPOLY ON VIOLENCE REQUIRES A HIGH BAR OF FAILURE
Whitley R. P. Kaufman, Philosophy Professor-University of Massachusetts, 2007, Self Defense,
Imminence, and the Battered Woman, New Criminal Law Review, 10 New Crim. L. R. 342, p. 361
However, any individual or group claiming a special exemption from the societal monopoly on force must meet
a very high standard indeed. No society, of course, can ever be even close to perfectly effective in preventing
illegal violence and guaranteeing justice, nor is the imminence restriction premised on any such Utopian
ideal. The declaration of a return to a "state of nature" is an extraordinary claim, appropriate only in the
most extreme and unambiguous circumstances. The classic case is the true state of nature where there is no
effective state presence at all and hence no access to judicial procedure, for example, as Hugo Grotius explains, "on
the seas, in a wilderness, or desert islands, or in any other place where there is no civil government." More pertinent to the
battered woman, however, are two other kinds of cases. First, in kidnap cases where the victim is wholly in the
power of her captors, it is widely accepted that, at least in some cases, a captive can use deadly force
against her captor even in the absence of an imminent threat. Second, in cases where the state
systematically and deliberately denies legal protection entirely to an individual or a group (for example, black
slaves in the antebellum South or Jews in Nazi Germany), there is a strong case for declaring a return to the right to
private violence. The question for us then is whether the situation of battered women can be considered a
return to the state of nature on either of these two grounds.
BATTERED WOMEN DONT MEET THE EXTREME CASES THAT JUSTIFY RELAXING
IMMINENCE REQUIREMENT/PRESERVING STATE MONOPOLY ON VIOLENCE
Whitley R. P. Kaufman, Philosophy Professor-University of Massachusetts, 2007, Self Defense,
Imminence, and the Battered Woman, New Criminal Law Review, 10 New Crim. L. R. 342, p. 361-3
It is in fact frequently suggested that battered women are in situations amounting to hostage or captivity ,
given the difficulties for women trying to leave an abusive relationship, including threats of retaliation if
they try to leave. Martha Mahoney, for example, argues that a batterer's threats against a woman create an
"imprisoning effect" that provides a "persuasive analogy" with "hostages or prisoners of war," hence helps shift
the "paradigm" of the battered woman to the "image of a hostage resisting her own death." It is true that, where a woman is genuinely
held captive by her abuser with no possible escape or recourse to the authorities, she would legitimately be entitled to use force even
absent an imminent threat. However, one should be cautious of relying on analogies or paradigms as the basis for
allowing homicidal self-help. The woman who is literally held captive by her abuser and is unable to leave or call for help is in
the state of a kidnap victim, and would be justified in using preemptive force to free herself. But difficulty in leaving is not
equivalent to genuine captivity; as Ferzan explains, a woman is not a "hostage" simply "because social and
economic factors make leaving more difficult." Donald Downs similarly criticizes Lenore Walker and Judith Herman for
using the "concept of captivity loosely, rendering it applicable to all or most battering relationships"; for example, " financial
dependence or emotional dependence cannot" constitute captivity, he warns, "unless we unwisely stretch the legal
notion of captivity or being kidnapped." It is doubtful whether we want juries making highly subjective judgments about what "image"
fits a battered woman, for the tendency would be towards an inevitable loosening of the standards for the use of force, and hence a
substantial erosion of the imminence rule.
Others have suggested that battered women should be exempted from the imminence rule on the grounds of
the wholesale denial of legal protection to battered women in our society. It is of course not at all obvious who
comprises this group: all women who have ever been physically struck (or suffered psychological or sexual abuse, as Lenore Walker
maintains)? All abuse victims whatever, male or female? Only those women who have been subject to repeated beatings? Only those
women who are unable to leave the relationship, for whatever reason? Only those who have tried to avail themselves of the authorities
but been refused? But even beyond the problem of delimiting the class of those exempt from the rule, there is a deeper issue here: the
analogy with cases of total and systematic exclusion (slaves, Jews in Nazi Germany) is highly questionable .
Indeed, given the extraordinary attention paid to protecting battered women since the issue became
prominent three decades ago-including the passage of domestic violence reform statutes in all fifty states, the federal Violence
Against Women Act, statutes authorizing mandatory warrantless arrests for misdemeanor assaults in domestic violence cases,
specialized domestic violence courts in some states, statutes authorizing expert testimony on "battered women's syndrome," mass
clemencies for convicted battered women killers (including twenty-five women freed in Ohio in 1991), and even the rise of an entire
new tort for battered women--it would be difficult to defend the claim that women in general, or abused women
in particular, are systematically excluded from the protection of the law . One can of course acknowledge
the seriousness of the problem of domestic violence and the need for the government to do much better in
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protecting victims of abuse, without resorting to the "nuclear option" of declaring that battered women are
in a state of nature and may resort to any force they see fit against their abuser.
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Violence Bad
PARDONING BATTERED WOMEN CONVICTED OF HOMICIDE IS AN ENDORSEMENT OF
VIOLENCE
Christine Noelle Becker, JD Candidate, 1995, Clemency for Killers? Pardoning Battered Women who
Strike Back, Loyola of Los Angeles Law Review, 29 Loy. L.A. L. Rev. 297, p. 333-4
It has also been alleged that pardoning battered women who kill sends the wrong message to a society that
already seems to endorse violence. Lawrence Sherman, professor of criminology at the University of Maryland and president
of the Crime Control Institute of Maryland believes that
this country has an epidemic of homicide. Kids under age 10 are starting to kill each other. The
rate of murder by
young people has doubled in the last five years. Any message from somebody of the stature of the governor
of Ohio that says a whole class of killers should be forgiven without having to do their jail time is just one
more way that society says it's OK to kill people.
Although Professor Sherman agreed that battered women often deserve better treatment by the courts, he believes that once
they are convicted they should serve their time.
VIOLENCE IS NEVER THE MORAL OPTION
Howard Zinn, Fellow at Harvard, 1990, Declarations of Independence, p. 289-90
All of us, therefore, as we approach the next century, face an enormous responsibility: How to achieve justice without massive
violence. Whatever in the past has been the moral justification for violencewhether defense against attack,
or the overthrow of tyrannymust now be accomplished by other means.
It is the monumental and tactical challenge of our time. It will make the greatest demands on our ingenuity, our courage, our patience,
and our willingness to renounce old habitsbut it must be done. Surely nations must defend themselves against attack, citizens must
resist and remove oppressive regimes, the poor must rebel against their poverty and redistribute the wealth of the rich. But that must
be done without the violence of war.
Too many of the official tributes to Martin Luther King, Jr., have piously praised his nonviolence, the praise often coming from
political leaders who themselves have committed great violence against other nations and have accepted the daily violence of poverty
in American life. But Kings phrase, and that of the southern civil rights movement, was not simply nonviolence, but nonviolent
direct action.
In this way, nonviolence does not mean acceptance, but resistancenot waiting, but acting. It is not at all passive. It involves strikes,
boycotts, noncooperation, mass demonstrations, and sabotage, as well as appeals to the conscience of the world, even to individuals in
the oppressing group who might break away from their past.
Direct action does not deride using the political rights, the civil liberties, even the voting mechanisms in those societies where they
are available (as in the United States), but it recognizes the limitations of those controlled rights and goes beyond.
Freedom and justice, which so often have been excuses for violence, are still our goals . But the means for
achieving them must change, because violence, however tempting in the quickness of its action, undermines those
goals immediately, and also in the long run. The means for achieving social change must match, morally,
the ends.
It is true that human rights cannot be defended or advanced without power. But, if we have learned anything useful from the carnage
of this century, it is that true power does notas the heads of states everywhere implore us to believecome out of the barrel of a
gun, or out of a missile silo.
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AT: Societal Failure to Protect Domestic Violence Victims Justifies Relaxing SelfDefense Standards
CAN NEVER ACHIEVE JUST ENDS THROUGH VIOLENT MEANS
Leroy Pelton, Professor Psychology-Wayne State University, 1974, The Psychology of Nonviolence, p.
55-6
Power is not amoral. The type of power used to gain certain ends, however humane those ends may be, can itself be inhumane.
Cameron (1970, p. 24) has said:
Violenceis centrally tied to the notion of human harm and commonly stands in need of justification , since
it would seem absurd to advocate the harming of human beings.
Violence stands in need of justification through the ends it pursues (Arendt, 1969, p. 51) perhaps because it is
often regarded as intrinsically inhumane and not merely because it is (often) instrumental in nature, as Arendt argues.
Nonviolence does not permit of means that are in themselves inhumane and that therefore stand in need of
justification through ends. Although the philosophy of nonviolence rejects violence solely on moral grounds
(viz., on the premise that the violent act is intrinsically inhumane), it lay well be that, as indicated before, power is not indifferent to
the ends for which it is used.
Arendt (1969, p 80) has said that the danger of violencewill always be that the means overwhelm the end.
Advocates of nonviolence have often maintained the belief that the end is pre-existent in the means (King, 1967, p. 71). Indeed, the
power of nonviolence is, ideally, power that already begins to build and set the example for what is to be. What it promises to achieve
is not extrinsic to what it is. As Shridaharani (1939, p. 316) said: The means should be the end in the process and ideal
in the making. The nonviolent activist believes that he cannot claim to seek a world of peace and yet not practice peace, or speak
of a future social justice while perpetrating the injustice of violence in the present. Perhaps, if our goals is a world in which
conflicts are resolved through reason, we must initiate rational discussion; if our goal is peace, we must
behave peacefully; if our goal is justice, we must behave justly; and if our goal is human freedom tempered
by social responsibility, we must behave as free and responsible individuals. Nonviolence is active love; it is
humane power, power that does not do injustice or multiply evil. This is the ideal that the nonviolent activist, as imperfect
as he is, strives to approximate. In succeeding chapters we shall see to what extent the above prescriptions for action are reflected in
the various forms of nonviolent power. Let us first look more carefully at the concept of social power and at the various forms that
power can take in general.
activist holds the attitude that we are responsible for other human beings for they are all our brothers and
sisters.
VIOLENCE BREEDS MORE VIOLENCE ANY ADVANTAGES ARE ONLY TEMPORARY
G. S. Herbert, Philosophy Sri Venkateshwar University, 1971, Non Violence and Social Change, p. 1545
It is usually thought that violence brings about quick changes whereas non-violence or love entails a slow process of transformation.
This point requires careful examination. It appears that by threat of force we can get things done with speed. But the question is,
whether the objectives are achieved, especially in social matters?
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Violence leaves behind rancour, suffering, and a burning spirit of revenge. Violence breeds violence and
there is no end to it. Gandhi says, I object to violence because when it appears to do good, the good is
only temporary, the evil it does is permanent. Anything achieved through violence is only temporary . It gives
apparent success only. If we are satisfied by such apparent success we can rely on violence.
Further a careful analysis reveals that even violence cannot bring about quick results. Even an armed insurrection does not succeed in
the first rush or with one effort. In the prolonged war for a cause, there are many skirmishes, battles, and campaigns, and reverses and
successes. Permanent results are obtained only when there is a change of heart. This is true especially in social matters. In a sense,
social reform can never take place through violence. In the context of religious conversion, Kriplani writes, Real
conversion is the conversion of the devotees heart in search of truth. In social matters also conversion of heart is essential. It is
ultimately by appeal to see the truth and by love that social reforms can be made a success. So the question of the rapidity of change
involving a particular method loses much of its meaning in matters of social change as there is only the method loses much of its
meaning in matters of social change as there is only the method of non-violence to bring about the change. As Gandhi says, We need
not to be afraid that the method of non-violence is a slow, long drawn out process. It is the swiftest the world has seen for it is the
surest.
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Faked Defense
EXCUSING WOMEN WHO KILL ABUSERS MEANS THAT THE DEFENSE WILL BE FAKED
BY OTHERS WRONG TO LEGITIMIZE THIS EXCUSE
Alan M. Dershowitz, Law Professor-Harvard, 1994, The Abuse Excuse: and other cop-outs, sob stories,
and evasions of responsibility, p. 16
In some instances, the battered woman syndrome has been abused by defendants who clearly had options other
than taking the law into their own hands. As one of the nations leading experts in criminal law asked rhetorically: Do
any husbands get killed anymore who dont batter their wives? Any time a defense works, it is quickly
abused by some who killed in cold blood. In other cases, the killing may not be calculated, but the killer
may have resorted to lethal force when other options were available. Though we may be sympathetic with a
childless, financially independent woman who is abused by her boyfriend or husband, a history of abuse does not justify
killing the abuser, regardless of how unsympathetic he may be. The woman in that situation does have
options, unpalatable as they may be. The law requires her to act on those options rather than kill her
abuser. Using the battered woman syndrome in that sort of case is an example of what I call the abuse excuse.
CREATING EXCEPTION FOR BATTERED WOMEN TO KILL ENCOURAGES OTHERS TO
FAKE THIS DEFENSE
Christine Noelle Becker, JD Candidate, 1995, Clemency for Killers? Pardoning Battered Women who
Strike Back, Loyola of Los Angeles Law Review, 29 Loy. L.A. L. Rev. 297, p. 333
There is also a fear among prosecutors and others that women who were not battered are attempting to use battered
woman syndrome as a fake defense. For example, Orlando prosecutor Dorothy Sedgwick is certain that Rita
Collins was attempting to use battered woman syndrome as a fake defense after she killed her husband and
feels sure that justice was done in denying Rita clemency. Rita argued that she was the victim of years of physical and mental abuse
before she filed for divorce and got a restraining order against her husband, and that he continued to abuse her until she shot him.
However, prosecutors "played tapes of [Rita] threatening her husband over the phone and portrayed her as a bitter, unstable woman
who had bought a gun, lured him to the house and murdered him out of jealousy and anger over the divorce." In addition, recent
investigations into the cases of the twenty-five women former Ohio Governor Richard Celeste pardoned
raise doubts as to whether some of the women were actually battered at all. This fear of abuse of battered woman
syndrome presents a convincing argument against clemency for battered women, yet it does not justify excluding all battered women
from the exercise of executive clemency.
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