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A widespread perception exists that contemporary criminal law doctrine cannot accommodate the self-defense claims of battered women who kill abusive men. That perception dominates not only the media, but also current reform discussions both in scholarly literature and in many state legislatures. In response to the dominant belief that traditional self-defense doctrine is inapplicable to these cases, proposals for radical redefinition of various elements of self-defense jurisprudence have been advanced.(1) This Article demonstrates that the belief is wrong and that proposed redefinitions of legal rules will provide neither the necessary nor the sufficient condition for changing the courtroom climate in which battered women's homicide cases are tried.
The impetus in current reform efforts toward redefinition of substantive criminal law and of evidentiary rules comes from two related, and incorrect, assumptions. The first incorrect assumption is that jury verdicts convicting battered women result from the "fact" that most battered women do not kill in circumstances traditionally defined as "confrontations,"(2) but rather that they kill during a lull in the violence, or when the man is asleep, or by hiring someone else to kill him. For many legal scholars this assumption appears to be derived from a review of appellate decisions involving battered women.(3) None of these scholars, however, has conducted a systematic survey of those decisions as a means of testing the assumption. This Article presents the findings of such a survey, and the appellate decisions do not support the commonly encountered assertion that most battered women kill in nonconfrontational situations.(4)
The reformers' second incorrect assumption is that existing doctrine is defined in a narrow and male-identified fashion to encompass one-time-only and time-bounded encounters between men of roughly equal size and strength. Using these assumptions, critics argue that the law by definition refuses to take into account the social context of a battered-woman defendant's act, even in those cases that involve traditionally defined confrontations. In the legal literature the basis of this assumption is, again, the body of opinions issued on appeals from homicide convictions.(5) A survey of those opinions, however, does not support the view that existing definitions exclude consideration of social context.(6)
Proceeding from those two unsupported and incorrect empirical assumptions, most proponents of reform are asking the wrong question. They ask not whether, but how substantive and evidentiary law should be redefined to guarantee the fair-trial rights of battered women who kill, and they describe "fair trials" either not at all or as those that result in not guilty verdicts. I will suggest that the proper inquiry requires a definition of fair trial that is not outcome-oriented and a careful evaluation of the appropriate definition's substantive-law, evidentiary-rule, and procedural-provision determinants. Reformers must decide carefully what is broken before setting out to make repairs.
Fair trials should be defined as those in which a defendant is able to put her case fully before the finder of fact, to "get to the jury" both the evidence of the social context of her action and legal instructions on the relevance of that context to her claim of entitlement to act in self-defense.(7) My conclusion, after review of the cases from that perspective, is that the most common impediments to fair trials for battered women are the result not of the structure or content of existing law but of its application by trial judges.
In a way, the failings of many current reformers are similar to those which they often attribute to the criminal law. Authors and legislators criticize legal definitions for refusing to take "context" into account.(8) The reformers themselves, however, have failed to look at context, both the factual context of most battered women's cases and the legal context in which they are tried. This Article begins with an examination of the factual context and challenges the assumption that most battered women are convicted because they kill in circumstances that do not involve a traditionally defined imminent threat of death or serious bodily harm. That assumption has led to the dominant portrayal of the typical battered-woman homicide defendant as a vigilante who strikes back at the only available moment, during a respite from attacks, often when the man is asleep. Many images from outside the appellate opinions reinforce this picture. A commentator recently described the image by contrasting it with others:
Killing in self-defense is a fundamental right for men and nations. . . .
But when women kill their husbands because they are afraid for their lives and those of their children, it's considered shocking--and criminal. According to the popular myth, a wan, mousy wife suddenly loses it and kills the hapless guy in his sleep. Or she hires a friend to blow him away and stuffs his body in a garbage can. It's all very weird and female.(9)
Much current scholarship, although it purports to be derived from an analysis of appellate opinions, seems in fact to be premised upon an uncritical acceptance of the popular portrayal of a battered woman who kills. It is a compelling stereotype. It is inaccurate. It is not supported either by empirical work in other disciplines or by appellate opinions.
The work of sociologists and criminologists demonstrates, even with the most conservative reading of representative empirical studies, that over seventy percent of all battered women who kill do so when faced with either an ongoing attack or the imminent threat of death or serious bodily injury; and some studies suggest that the figure may be closer to ninety percent.(10) These estimates are consistent with the results of this Article's analysis of appeals from battered women's homicide convictions, a sample that is likely to contain an overrepresentation of nonconfrontation cases:(11) at least three-quarters of the cases involve confrontations.(12) Part I of this Article therefore concludes that most homicide convictions of battered women do not result from the fact that circumstances of the killings were outside the traditional definition of self-defense.
In Part II of this Article, I will criticize the second incorrect assumption-which similarly dominates current scholarship and legislative efforts--that existing legal definitions are insufficient to accommodate the self-defense claims of battered women, even those who kill during confrontational situations. It is true that the law of self-defense has developed in a context in which the overwhelming majority of defendants were men. It is not true, however, that the law by definition ignores the context of a woman defendant's actions.
In the area of substantive law, most scholars focus on four aspects of self-defense jurisprudence: the definitions of the standard for measuring the reasonableness of the defendant's actions, of the temporal proximity of danger facing the defendant, of the proportionality of force used to meet the threatened harm, and of the defendant's duty to retreat. These factors are not in fact generally defined in a way that excludes consideration of the circumstances in which battered women kill.(13) In most jurisdictions, the standard of reasonableness against which the necessity of a defendant's act is measured explicitly includes consideration of the characteristics and history of the defendant on trial; her acts are measured in light of her own perceptions and experience. The definition of the required temporal proximity of that harm is, again in most jurisdictions, broader than the particular instant of the defendant's action; the definition includes its context--the circumstances surrounding the action, including past events. Only a minority of jurisdictions impose a duty to retreat, if safe retreat is possible, before using deadly defensive force, and most of that minority exempt a person attacked in her home from the duty to retreat. No jurisdiction has a per se rule prohibiting use of a weapon against an unarmed attacker; rather, the proportionality of force is measured on a case-by-case basis, taking into consideration the relative sizes, ages, and physical conditions of the decedent and defendant, as well as any history of violence between them.
A similar pattern exists in the law of evidence, which is the focus of legislative reform efforts. The existing evidentiary law in every jurisdiction provides that testimony about a defendant's history of abuse by the decedent is admissible.(14) Expert testimony regarding the effects of a history of abuse, usually in the form of testimony about the "battered woman syndrome,"(15) is admissible in the overwhelming majority of the states whose appellate courts have addressed the question. In all but two of these states, the testimony has been ruled admissible on the basis of existing evidentiary provisions, without the necessity of special legislation.(16)
To say that existing definitions can accommodate the self-defense claims of battered women and can provide for their evaluation in the relevant social context is not to say that trial courts apply those definitions when the defendants are battered women. Thus, Part II will also address the disparate application of existing standards. It concludes that, to the extent that there is a problem in getting to the jury, it is generally the result not of definitions, but of the application of the law at the trial level. That conclusion is supported by the disparity between reversal rates in these cases and in other homicides. Forty percent of the battered women's convictions were reversed on the ground of trial errors. Only 16% of the reversals were because of errors dealing with expert testimony. The rest were reversed on the basis of the same...