Self-defense, imminence, and the battered woman

New Criminal Law Review

Volumn 10, Issue 3, 2007, Pages 342-369

  Kaufman, Whitley R P ^a  

^a UNIVERSITY OF MASSACHUSETTS LOWELL   (United States)

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EID: 34547919972     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2007.10.3.342     Document Type: Article

References (129)

1. For comparison of the two debates, see Kimberly Kessler Ferzan, Defending Imminence: From Battered Women to Iraq, 46 Ariz. L. Rev. 213 (2004)
2. Shana Wallace, Beyond Imminence: Evolving International Law and Battered Womens Right to Self-Defense, 71 U. Chi. L. Rev. 1749 (2004)
3. Jane Moriarty, "While Dangers Gather": The Bush Preemption Doctrine, Battered Women, Imminence and Anticipatory Self-Defense, 30 N.Y.U. Rev. L. & Soc. Change 1 (2005);
4. Michael Skopets, Battered Nation Syndrome: Relaxing the Imminence Requirement of Self-Defense in International Law, 55 Am. U. L. Rev. 753 (2006).
5. George Fletcher, Self-Defense and Relations of Domination, 57 U. Pitt. L. Rev. 553, 568 (1996).
6. Whitley Kaufman, What's Wrong With Preemptive War? 19 Ethics & Int'l Aff. 23 (2005).
7. See, e.g., Lenore Walker, Battered Women As Defendants, in Legal Responses to Wife Assault 233, 243 (Zoe Hilton ed., 1993) ("'imminent' is often confused with 'immediate'");
8. Cynthia Gillespie, Justifiable Homicide 185 (1989).
9. Richard Schopp, Justification Defenses and Just Convictions 99 (1998). Schopp elsewhere refutes the claim that the "immediacy" standard, in contrast to "imminence," would preclude consideration of a past history of danger. In fact, a history of past violence is always relevant to the reasonableness of a belief in the necessity to use force, on any standard.
10. Richard Schopp et al., Battered Woman Syndrome, Expert Testimony, and the Distinction Between Justification and Excuse, 1994 U. Ill. L. Rev. 45, 65.
11. Cf. Donald Downs, More Than Victims 247 (1996).
12. 2 Paul H. Robinson, Criminal Law Defenses §131(c)(1) (1984).
13. Black's Law Dictionary (5th ed. 1979).
14. 1 Wayne LaFave & Austin W. Scott, Substantive Criminal Law, §5.7, at 655 (1986).
15. Model Penal Code §3.02(1)(a) (Proposed Official Draft 1962).
16. Gillespie, supra note 4, at 76, 186.
17. Cf. Kym Miller, Abused Women Abused by the Law: The Plight of Battered Women in California and a Proposal for Revising the California Self-Defense Law, 3 S. Cal. Rev. L & Women's Stud. 303 (1994);
18. Richard Rosen, On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. Rev. 371, 372 (1993);
19. Schopp, supra note 5, at 68 (some BW cases would not qualify as self-defense if imminence is separate from necessity).
20. Holly Maguigan's study indicates that the vast majority (from 70 to 90 percent) of battered women killings occur in confrontational situations, i.e., during an actual or imminent attack by the batterer. Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379, 384 (1991).
21. Rosen, supra note 10, at 375.
22. State v. Norman, 378 S.E.2d 8 (N.C. 1989).
23. See, e.g., Jeffrey Murdoch, Is Imminence Really Necessity? Reconciling Traditional Self-Defense Doctrine with the Battered Woman Syndrome, 20 N. Ill. U. L. Rev. 191, 199 (2000) ("the best known case where the imminence requirement served as a bar to a claim of self-defense being made by a battering victim");
24. Alan J. Tomkins et al., Self-Defense Jury Instructions in Trials of Battered Women Who Kill Their Partner, in Legal Responses to Wife Assault, supra note 4, at 258, 263 (Norman "epitomizes the problems that several commentators claim exist for battered women defendants who ought to have the protection of a self-defense claim");
25. Rosen, supra note 10, at 372 ("the first thing that turned my attention to the subject of battered women, self-defense, and the imminence requirement was the case of Judy Norman").
26. See, e.g., Gillespie, supra note 4, ch. 1.
27. See, e.g., Rosen, supra note 10, at 411.
28. Murdoch, supra note 13, at 212.
29. Rosen, supra note 10, at 371;
30. compare David Gauthier, Self-Defense and Relations of Domination: Comments on George Fletcher's Domination in the Theory of Justification and Excuse, 57 U. Pitt. L. Rev. 615, 616 (1996);
31. Downs, supra note 5, at 229 ("imminence of harm is the best indication of... necessity").
32. Alafair Burke, Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, out of the Battered Woman, 81 N.C.L. Rev. 211, 271 (2002), quoted in Ferzan, supra note 1, at 241 n.162.
33. Schopp, supra note 5, at 101-02;
34. Wallace, supra note 1, at 1761.
35. Robinson, supra note, 6, §131(B)(3).
36. David Rodin, War and Self-Defense 41 (2002).
37. Model Penal Code §3.04(1) (Proposed Official Draft 1962).
38. See, e.g., discussion in Schopp, supra note 5, at 98;
39. Robin Ogle & Susan Jacobs, Self-Defense and Battered Women Who Kill 118-20. (2002);
40. George Fletcher, Rethinking Criminal Law 764 (2000).
41. Cf. Robinson, supra note 6, §131(c) (2).
42. The widespread confusion as to how force can be necessary but not imminent appears ro result from an overly literal readig of "necessary." But of course, on a strictly literal interpretation, force would not be necessary even when the treat was imminent: As Richard Rosen points out, supra note 10, at 397, eve when a gun is pointed at your head, the attacker could change his mind, or miss.
43. Fezanm supra note 1.
44. Id. at 213.
45. Id. at 262.
46. Id. at 257.
47. Id. at 259.
48. Id. at 258.
49. Id. at 259.
50. Fletcher, supra note 2, at 570.
51. Fletcher is, however, wrong to suggest that this makes individual self-defense somehow "derivative" from the state's monopoly on force. Fletcher, supra note 23, at 867. There is no meaningful sense in which the state's use of force is "prior" o the individual's, nor is there any reason to think the individual's right of self-defense exists only at the pleasure of the state. Indeed, the natural law account that I will be defending here is premised on the idea of a natural right of the individual to self-defense.
52. Frederick H. Russell, The Just War in the Middle Ages 42 (1979).
53. Id.
54. Id. at 42-43.
55. Id.
56. Cicero, Pro Milone, in The Speeches 3, 17 (Nevile Watts trans., 1964).
57. Gratian, Decretum, Part II, Causa 23, in The Ethics of War 104, 110 (Gregory Reichberg et al. eds., 2006).
58. Raymond of Penafort, Summa de Casibus Poenitentiae 18 (1234-1245), quoted in The Ethics of War, supra note 39, at 139.
59. Saint Thomas Aquinas, Summa Theologica II-II.Q. 40 A.1 (Fathers of the English Dominican Province trans., 2d rev. ed. 1920), available at http://www.newadvent.org/summa.
60. Id. I-II Q. 96. A. 1.
61. G.N. Clark, The Seventeenth Century 140 (2d ed. 1961).
62. Hugo Grotius, The Rights of War and Peace 74 (A.C. Campbell trans., 2003).
63. Id. at 75.
64. Id. at 76.
65. Id. at 76. Cf. id.: "The danger, again, must be immediate (praesans) and on the spot as it were (quasi in puncto)."
66. Samuel Pufendorf, On The Duty of Man and Citizen 49 (Michael Silverthorne trans., 1991).
67. John Locke, Two Treatises of Government 280 (Peter Laslett ed., 2003);
68. cf. id. at 404.
69. Charles de Secondat Montesquieu, The Spirit of the Laws 138 (Anne M Cohler, Basia Carolyn Miller, & Harold Samuel Stone trans., 1989).
70. 4 William Blackstone, Commentaries on the Laws of England 184 (1962).
71. Rosen, supra note 10, at 387 n.45.
72. We cannot therefore accept Rosen's historical skepticism about the imminence rule, that it is "apparent that the imminence requirement does not have an unquestioned historical lineage as a fundamental requirement for a finding of self-defense." Id. This is of course not to deny that different legal traditions have not always consistently endorsed the rule, for complex historical reasons.
73. Grotius, supra note 44, at 55.
74. See, e.g., Publius Syrus, The Moral Sayings of Publius Syrus, a Roman Slave 51 (D. Lyman trans., 1856) ("No one should be a judge in his own cause.")
75. Edmund Burke, Reflections on the Revolution in France 89 (1962) ("One of the first motives in civil society, and which becomes one of its fundamental rules, is, that no man should be judge in his own cause ")
76. Federalist No. 10 ("No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.") (Madison).
77. Both Hobbes and Locke also made the need for a central, objective decision making authority central to their theory of the social contract. See discussion in Richard Tuck, The Rights of War and Peace 126-39 (1999).
78. Grotius, supra note 44, at 56.
79. For a discussion of some of the limits on the permissibility of private violence, even in a slave state, see Kent Greenawalt, Violence: Legal Justification and Moral Appraisal, 32 Emory L.J. 437 (1983).
80. Martha Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 87, 92 (1991). Mahoney even seems to suggest a purely subjective standard, i.e., the woman's conviction that her abuser seems omnipotent and inescapable suffices to trigger the right to kill him. For a discussion of the dangers of such a subjectivization of the right to violence, see below.
81. Ferzan, supra note 1, at 254 n.221.
82. Downs, supra note 5, at 247.
83. Id. at 246.
84. Cf. Greenawalt, supra note 57, at 481: "The rule permitting deadly force in response to kidnapping does not reflect a general moral view that every unjust deprivation of liberty warrants such force."
85. See, e.g., Schopp, supra note 5, at 104;
86. Gauthier, supra note 17, at 618;
87. Murdoch, supra note 13, at 213.
88. George Fletcher, With Justice for Some 14 (1996). Note also that the notion of failed "effectiveness" in protecting women also does not distinguish between effectiveness in protecting against a future threat, and effectiveness in punishing past offenses. If a killer escapes punishment, can the relatives of the victim carry out their own private vengeance on grounds that the state was ineffective in avenging the death?
89. See Edward Ayers, Vengeance and Justice 246 (1984).
90. Gauthier, supra note 17, at 617.
91. Downs, supra note 5, at 226.
92. See, e.g., Moriarty, supra note 1, at 26 ("hypervigilant awareness of danger is one of the signposts of a person suffering from post-traumatic stress disorder");
93. Walker, supra note 4, at 243 ("research demonstrates that one of the psychological effects of violence is that the victim becomes hypervigilant to any cues of impending danger");
94. Kit Kinports, Deconstructing the "Image" of the Battered Woman, 23 St. Louis U. Pub. L. Rev. 155, 180 (2004) ("research shows that battered women tend to become hypersensitive to their abuser's behavior and to the signs that predict a beating").
95. Legal Responses to Wife Assault, supra note 4, at 243.
96. Elizabeth Schneider, Battered Women and Feminist Lawmaking 120, 124, 136 (2000).
97. Id. at 131.
98. See also Downs, supra note 5, at 231;
99. Kinports, supra note 67, at 180 n.138;
100. Mary Ann Dutton, Empowering and Healing the Battered Woman 61 (1992). Oddly, the concept of "hypervigilance" as used in discussions of PTSD more generally seems typically to emphasize the very opposite: The increased unreliability of perception of danger due to repeated stress. Thus Jonathan Shay describes the hypervigilance of returned soldiers as the "inappropriate reaction to perceived risk" and as the loss of trustworthiness of perception.
101. Jonathan Shay, Achilles in Vietnam 172-74 (1995).
102. See also Jane Moriarty's characterization of PTSD victims as "tending to respond to perceived events in an exaggerated manner because of compromised sensory perceptions." Moriarty, supra note 1, at 182 n.145.
103. See, e.g., Schopp, supra note 5, at 13;
104. cf. Downs, supra note 5, at 226. Nor should we overlook the obvious potential for abuse of an after-the-fact claim that there was an imminent threat visible only to the defendant.
105. Belinda Morrissey, When Women Kill 98 (2003).
106. State v. Norman, 378 S.E.2d 8, 10-11 (N.C. 1989).
107. Alan M. Dershowitz, The Abuse Excuse 58 (2000).
108. Fletcher, supra note 63, at 140.
109. Dershowitz, supra note 74, at 59.
110. Joshua Dressler, Battered Women Who Kill Their Sleeping Tormentors, in Criminal Law Theory 259, 269 (Stephen Shute ed., 2002).
111. See Elizabeth Ayyildiz, When Battered Woman's Syndrome Does Not Go Far Enough: The Battered Woman As Vigilante, 4 J. Gender & L. 141, 148 (1995),
112. cited in Dressler, supra note 77, at 271.
113. Dershowitz gives one example of such a blurring from Lorena Bobbitt's lawyer, who claimed an "after-the-fact 'self-defense': 'Moments after the last rape, he was cut. That's about as fundamental a self-defense plea as you can ask for.'" Dershowitz, supra note 74, at 58.
114. Lenore Walker, Terrifying Love 257 (1989);
115. cf. Legal Responses to Wife Assault, supra note 4, at 243;
116. Downs, supra note 5, at 81.
117. Elizabeth Schneider comes close to endorsing such a view in suggesting that the very concept of "objective" inherently embod[ies] male values." Schneider, supra note 69, at 139. One occassionally comes across the claim that victims in general have access to a "higher" or more "special" form of truth.
118. Schopp, supra note 5, at 91-92.
119. Equally problematic is the idea of a "reasonable battered woman" standard; see criticism in Maguigan, supra note 11, at 443-50,
120. Schopp, supra note 5, at 100.
121. The Model Penal Code notably drops the reasonableness requirement, so that honest belief alone suffices. Model Penal Code §3.04(2)(1) (Proposed Official Draft 1962) (defendant charged with murder need only show that he "believe[d] that [the use of] deadly force was necessary"). See discussion in Schopp, supra note 5, at 100-02. Several states follow this rule, though the majority require that the belief be not only honest but reasonable as well.
122. Sheryl McCarthy, Injustice After All, USA Today, May 9, 2006, at 15A, available at http://www.usatoday.com/news/opinion/editorials/ 2006-05-08-forum-injustice_x.htm?csp=34 (May 8, 2006).
123. Gauthier, supra note 17, at 616.
124. For other critiques of subjectivism, see George Fletcher, A Crime of Self-Defense 61-62 (1988);
125. Downs, supra note 5, at 204-50;
126. Stephen Morse, The "New Syndrome Excuse Syndrome," 14 Crim. Just. Ethics 3, 3-16 (1995).
127. Maguigan, supra note 11, at 458.
128. Pufendorf, supra note 48, at 156.
129. Dressler, supra note 77, at 275.