An Equities Sensitive Defense for the Battered Woman Who Kills

This is a draft of a paper, many years old, arguing that victims of continuing abuse should sometimes benefit from a readjustment of the reasonableness elements when tried for killing (or feloniously assaulting) their abusers.

Having a justification is a matter of being able to give a reason for having committed an otherwise criminal act, a reason that the criminal law considers good enough under the circumstances.¹ This paper argues in support of the controversial claim that the reasons battered women give in justification of attacks on their abusers need not be as good as they would have to give for an attack under otherwise identical circumstances against a non-abuser.

1. Abuse and Good Reasons

In most respects self defense in battered women cases is not at all special. I want to emphasize that in the majority of cases in which women raise self defense in killings of their husbands or live-in boyfriends, the defense relies upon nothing more innovative than the traditional understanding of self defense.² Suppose that there is an issue at trial as to whether the abuser was about to commence another assault at the moment that the defendant fired her pistol. If the defendant is a victim of battering, she may have developed a very good sense indeed of the point at which her husband will resort to violence. Past experience with his patterns of violence would provide her with a basis for interpreting the cues far better than an outside observer’s.³

For these reasons, the prior probabilities lie very differently in an abusive relationship than in an ambiguous encounter with a stranger. That difference gives the jury an extra basis to credit the defendant’s proffered reasons for using deadly force.

Self defense cases that go to trial do so because of uncertainties as to whether one or more of the elements of self defense were actually present. Was the defendant facing a robbery or rape threat, or a threat on her life? Could she retreat? Could she meet any attack by display of a revolver or must she fire it?

It is possible to analyze the relations of these uncertainties to the elements of self defense at trial in terms of who should bear the burden of a particular uncertainty.⁴ Where the burden is on the putative self defender, she is at her peril from the law if she incorrectly assesses the uncertainty and uses physical force or too much physical force. Where the burden is on the putative assailant, the self defender is free to use the force that she could use if the uncertainty were resolved in favor of such force. These burdens are not the same as the “burdens of proof” at trial, although they would  affect the way those burdens should be explained to a jury.

The initial burden of uncertainty in ambiguous confrontations is normally on the party who contemplates using deadly responsive force. She must have a sufficient reason for her interpretation of the circumstances: that she is being or is about to be subject to attack. This accords with the law of most states that the self defender must have an objectively reasonable belief that an attack is imminent. Note, however, that this is consistent with the prosecution’s having a burden to disprove beyond a reasonable doubt that her belief was reasonable.

It makes sense that this initial burden should be on the self defender because of our social preference for peace. Until you have a good reason to believe that an ambiguous figure is a genuine threat, it is wrong to initiate violence against him.

In the case of an abused woman, however, at least the weight of that initial burden should be lighter. When it is a matter of a possible attack from an abuser with whom the defendant had a long history, not only is her experience with the abuser relevant in evaluating her reasons for using force, there is also a shift in equities, a shift that the law of self defense should take into account.

Abusers have an impoverished set of moral equities in comparison to their victims. There is a good moral basis to allocate to the abuser the burden of the uncertainty that is created by his own past victimizing conduct and anything ambiguously threatening about his current conduct. Thus even when her past experience with the abuser is not sufficient to clear up the uncertainty, there is good reason either to allocate the burden of uncertainty of unlawful aggression to the abuser or to take it to be a light burden on the victim.

In addition to the initial uncertainty as to whether there is an imminent threat, there are additional uncertainties that must be addressed by self defenders if their reasons are to be sufficient to afford them the criminal defense. There may be uncertainties as to the level of attacking force, the effectiveness of defensive force options, and the availability of safe retreat. I believe that once the initial uncertainty is resolved in the putative self defenders favor, the burden of uncertainty is, and should be, on the assailant, not the self defender. No one who has good enough reasons to believe that he is about to be the victim of an unlawful, violent attack, must bear the burden of uncertainty created by ambiguities as to whether he can safely run away from a knife wielding assailant or safely use his karate skills instead of his revolver. If the contemplating self defender is a sprinter wearing running shoes and the assailant with a small knife has on flip flops, then probably the sprinter should sprint. In more ordinary situations the impending victim of a knifing need not try to calculate relative running prowess before drawing his revolver.

The perpetrator of a pattern of abuse has even weaker equities than does the usual assailant when it comes to allocation of the burdens of uncertainty with respect to such matters as safe retreat and level of force. Unlike the stranger assailant, the abuser’s violent malevolence is a known and certain quantity. In addition, the abuser’s patterns of violence in the past may contribute to the ambiguity of the present situation. The woman is close to the door. Can she run through it to safety? Even if he has never locked the door before, steps he has previously taken to prevent her escape may well lead her to wonder if he has done so this time. She should not be required to come up with any more particular reason than his campaign against her for concluding that it is too risky to run for the door.

The abuser's claim for equal treatment with his victim is exceptionally weak. Insofar as utilitarianism would counsel us to give equal consideration to abusers and victims, it is out of step with the morality that does, and should, animate the criminal law.

There is only a little that is new in this so far. It should not seem surprising that what counts as a good reason for the use of defensive force depends upon the relative moral equities of the protagonists as well as the relevant probabilities. I want now to make a somewhat bolder extension of these principles. It is an extension that will bring us into the teeth of the storm of controversy that raged a few years back about the battered woman defense and the battered woman syndrome.

2. The Acceptability of Weaker Reasons

I have so far been assuming, in speaking of uncertainties and probabilities, that it is rational probabilities that are in play. Consider a self defense claim to an assault charge against a defendant who shot someone who may either have been trying to mug the shooter or merely panhandling him in an uncivil fashion. The past experience of the defendant with muggings is relevant to the defense, but only as that experience would be assessed objectively. Paranoid reasoning and facts that would be made relevant only by such reasoning would not count as reasons justifying the shooting. 

 I shall now argue that in battered woman cases it is sometimes appropriate to use a less demanding standard than rational probabilities. That is, the defense of self defense should sometimes be available to a victim of abuse even if an objective observer would conclude with reasonable certainty that she was not subject to imminent attack or that she could retreat with complete safety. These may include at least some of the infamous sleeping husband cases.

I would not make the defense available to someone who has simply never been good at judging practical probabilities. A general inability should not be a defense in the trial of a violent crime unless the inability is so profound as to constitute insanity or lack of mens rea under traditional standards. Perhaps it should be a mitigation, but that is a subject for another time. In any event, there is a difference that makes a moral difference in those cases in which the lesser capacity of an abuse victim is solely the result of the abuse.

Suppose that we have such a victim of battering. She sincerely believes, as a result of "learned helplessness"⁵ that she has no meaningful chance to escape before the abuser inflicts deadly force upon her. A reasonable person who had complete knowledge of the history of her abuse and the objective circumstances, would not draw the same conclusion. The victim believes as she does because of a psychological syndrome that is the direct result of the abuse by this abuser.

The syndrome need not have all the characteristics of the "battered woman syndrome" as that phrase has usually been explained. It is sufficient for my argument that there is some abuse induced weakening of the defendant's ability to make the practical judgments at issue. That weakening might have come, for example, from the abuser's striking the victim on the head or from the abuser's forcing the defendant to become intoxicated. The weakening also could come about as the result of the history of abuse in a more complex way – including but not limited to the abused woman syndrome as described and supported by the research of Lenore Walker and her associates.⁶ 

I have made no independent investigation as to the scientific merit of the syndrome as described by Walker or as to the soundness of the methodology that led to its identification. I simply assume, as seems to me likely and for the purposes of argument, that in some cases abuse affects, in one way or another, the ability of its victim to make sound judgments bearing upon the seriousness and imminence of an attack, the availability of a safe retreat, or the necessary level of defensive force. My argument does not depend upon the fact that the defendant is a woman. I focus on these cases because abuse of woman by their husbands and live-in boy friends is both more common and more studied than other abusive relationships. My argument potentially applies to any case in which it can be established that the victim of the crime at bar caused at least a temporary degradation of relevant reasoning capacities in the defendant. It applies only to such cases.

Consider now the claim that the abuser makes on the state. He argues that his victim ought to be prosecuted for an attack upon him in mistaken self defense. Because her mistake was unreasonable, she has fallen below the criminal norm. But who is responsible for her falling below that norm? He is. Why then ought the state to bring him within the ambit of the protections of its criminal law?

In short, in some battering situations there will be what might be called the "burden of abuse induced diminished reasonableness." The key question is whether the criminal law ought to allocate that burden to the abuser or the victim. The equities are with the victim. The abuser ought not to be able to take advantage of the fruits of his own wrongdoing. To place this burden on the victim-defendant would be unjust.

Reasoning not too dissimilar from this is already familiar to the criminal law. The defendant who creates conditions for his own excuse or justification is often held liable. Intoxication only rarely gives rise to a good criminal excuse, but if the intoxication is self induced, it is even rarer. ⁷ One who artfully manipulates another into an attack may be denied the justification of self defense. Some states attach liability even if the defendant was not at fault in creating the conditions of his own defense, others require a more particularized form of fault thought to be inconsistent with the defense.⁸

So my proposal concerns those cases in which the abuser's culpable actions cause the defendant to be in such mental circumstances as to prevent her from satisfying what would otherwise be an element of self defense. This gives society a good reason to refuse to grant the abuser the law's protection so far as that element goes. If the defendant fails to qualify for the defense on other grounds, so be it. But if she would fail to qualify only because of abuse-induced deficiency in reasonableness, then the defense should be available. The doctrine of causing the conditions of one's own defense has the grave consequence of making one criminally liable who would otherwise have a good defense.

The application I propose here has the less serious consequence of absolving defendants from liability in cases where convictions are, at best, troubling.

3. Connections, Extrapolations, and Reflections

My argument will not support the defense in a case in which the defendant has been battered by one man and then unreasonably self defends against another man.⁹ The defense ought not be available even if her belief that she faces imminent danger is entirely the result of her history. There may be nothing different about the sincerity or strength of her belief in the case in which she defends against her prior abuser and that in which she defends against someone else. The balance of equities, however, is quite different. The innocent putative attacker is not responsible for her mistake, and can expect protection from the state that one who is responsible for her mental condition could not.

 

So there is a substantial difference between my proposal and any treatment of the abused woman defense that would make it an excuse akin to insanity. On such an account, it would make no sense to distinguish between the cases of mistaken self defense against an abuser and mistaken self defense by a previously abused woman against a non-abuser – assuming that the reason for her mistake, say as to imminence, was in both cases her prior abuse. 

 

Justification is a matter of being able to give, for one's actions, reasons of the sort that society should accept. The abused woman who overestimates the imminence of an attack against her by her abuser and therefore the necessity of her self defense is unable to give good first order reasons for her action. She would, however, be able to give a good explanation for her failure to give a good reason. That explanation affords society a sound normative basis for reassessing the goodness of her reasons for acting in self defense. Justice as between the abuser and the abused is a legitimate part of that reassessment. Reasons that would not otherwise be good enough become good enough when their very weakness is chargeable to the party who would take advantage of that weakness by claiming the protection of the criminal law.

Whether this approach to the battered woman defense would require legislation or not will depend upon the existing statutory language and its interpretation. On the Model Penal Code, an abused woman with a sincere but mistaken belief in the necessity of the use of deadly force will not be guilty of murder, because belief is sufficient to trigger the justification of self defense.¹⁰ She will argue that she is not guilty of reckless manslaughter or negligent homicide because she lacks such culpability. It is the abuser, not she, who is culpable for her mistake. 

 

In jurisdictions requiring reasonable belief for any justification, she will argue that on a proper interpretation of "reasonable" her belief should be deemed to be reasonable. Reasonableness is inevitably and properly a normative concept. Yes, her judgment of probabilities fell short of those that would have been made by an objective observer with all the facts. But she was not responsible for her mistake of judgment; her abuser was. Therefore traditional criminal law norms require the adjustment of "reasonableness" so that she is not made liable as the result of something for which she ought not be held responsible.¹¹

 

This would be the argument, whether a court should accept it might well depend upon the statutory definition of “reasonable,” if any, and the cases in that jurisdiction construing the concept. If it would be beyond responsible judicial interpretation, then the legislature should set out explicitly the different standard of reasonable belief when it is a matter of a victim of abuse defending against her abuser.

The theory presented here could also have effect without any legislative action or judicial innovation. Indeed, I think it already has had such effect, although obviously not one in any way due to my enunciation of the theory, and, in fact, always in a manner much less enunciated in detail if enunciated at all. What I have in mind is the possibility that prosecutors have sometimes being actuated in decisions not to prosecute by assessing abused self defender reasonableness in terms of the equities I emphasize. It is also probable that some cases of jury nullification have arisen for these same reasons. Legality of a formal sort may be the loser in such cases, but justice is the winner. 

 

I hope here to have given a satisfactory basis for the widely held, but still highly controversial, belief that some abused women cases require a reform in our understanding of self defense. My theory would not convert these cases from justification defenses to excuse defenses, as would some versions of the abuse syndrome defense, which, in effect, create a special category of criminal insanity for abused women. My theory would not open the door to a parade of “syndrome defenses.” 

  

I will concede, however, that my theory of the justification has an “excuse like” component, in lowering reasonableness standards for defendants who cannot meet those standards because of abuse by the putative assailant. It is justification with an element partially excused. Does that make it a justification-excuse hybrid? This terminology, I think, is more mystifying than clarifying. That there should be a defense that is not purely justification and not purely excuse, however, should not be troubling. 

 

In the real world the distinction between justification and excuse is important only in those cases in which a successful excuse defense triggers civil commitment. Involuntary commitment is rarely if ever appropriate in a abused woman case. If it were appropriate, it should be yoked with the acquittal in criminal court, but originate independently, across the street in civil court, as would any other civil commitment proceeding. Keeping the defense in the justification category should help in that respect.

My theory is, to an extent, a “blame the victim defense.” The abuser, whatever else he may be, is a homicide victim. The murder of a long time gangland hit-man is still a murder. In the case of the abuser, however, the respects in which he falls short of being a morally sympathetic victim may have a direct relevance for the equities appropriately considered in deciding whether the jury should accept the reasons proffered by the abuse victim in support of self defense. Because of the very special facts of self defense against abusers, and the limits of the proposed reform, its adoption would give no support for blame the victim defenses in such cases as rape.

On a practical note, it bears repeating that most cases of abused women who kill their abusers satisfy all the traditional tests for self defense.¹² In these cases it is unnecessary, and usually tactically unwise, to bring up the affects of abuse in general or the abused woman syndrome in particular. Certainly in the many cases in which the defendant's actions were objectively reasonable, the defense would not want to surface that part of my theory that applies only if the defendant's response is less than reasonable. Were my theory incorporated in the pattern jury instructions, the defense will request that those sections not be read in most abuse self defense cases. In the exceptional case, however, those instructions may prevent a serious injustice. 

 

1 Strictly speaking, and in the general case, the defense should be available even if the justification that the defendant tenders was not his reason for acting, so long as he was aware of circumstances that were justifying at the time of the otherwise criminal conduct. See my “Justification and Bad Motives,” 6 Ohio State Journal of Criminal Law 277 (2008). The defendant should not, however, be able to make use of the special circumstances of abuse if she acted from some entirely different motivation.

2See Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379 (1991).

3 See Phyllis L. Crocker, The Meaning of Equality for Battered Women Who Kill Men in Self Defense, 8 Harv. Women's L.J. 121, 127-28 (1985); Comment, Self Defense: Battered Woman Syndrome on Trial, 20 Cal. W.L. Rev. 485, 495 (1984); State v. Leidholm, 334 N.W.2d 811, 820 (N.D. 1983) (evidence of battered woman syndrome goes to reasonableness of defendant's perception of imminent bodily danger); R. v. Lavallee, 76 C.R. 3d 329 (Sup. Ct. Can. 1990) (expert testimony admissible as to ability of a battered wife to perceive danger from batterer going to reasonableness of apprehension of death or grievous bodily harm and of unavailability of flight).

4 My analysis in terms of these burdens of uncertainty was enriched and perhaps originally stimulated by conversations with Francis Kamm many years ago, and by work that she was then doing.

5Lenore Walker, The Battered Woman 47 (1979).

6 See Id.; Lenore Walker, The Battered Woman Syndrome (1984); Lenore Walker, Thyfault & Browne, Beyond the Juror's Ken: Battered Women, 7 Vt. L. Rev. 1 (1982); Lenore Walker, Battered Women, Psychology, and Public Policy, 39 Am. Psychologist 1178 (1984).

7 I have in mind excuse circumstances here, not those circumstances where there is no mens rea because the defendant is too far gone, e.g. to form the specific intent required by the definition of the offense.

8See generally, Paul Robinson, Causing the Conditions of One's Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 Va. L Rev. 1, 2-24 (1985) (Doctrine applied by many states to defenses of duress, lesser evils, self defense, and defense of others, as well as intoxication.)

9See R. v. Eyapaise, 20 C.R. 4th 246 (Alberta Queen's Bench 1993) (stabbing of stranger by defendant with history of abuse held not self defense even if past abuse made reasonable her apprehension of bodily harm).

10Model Penal Code § 3.04(1).

11A defendant who cleaves strictly to the theory set out here will have to phrase her argument delicately. It is not that the abuse was sufficient to cut off her responsibility for her mistaken judgment in all circumstances. If she made the mistake with respect to anyone other than the abuser, she would be responsible for it, and it would be unreasonable. It is as between her and her abuser that it is proper to place the responsibility for the mistake upon the abuser rather than upon her, and therefore to deem her belief reasonable. This could make oral argument a little tricky. It would have the advantage in that setting, however, of putting a strict limit on this most ambitious aspect of the defense. It does not apply if the victim is not an abuser. It cannot be generalized to cases of war trauma or other such defenses.

12 See Maguigan, supra note 2.