FANNING THE FLAMES: GASLIGHTING AS A TACTIC OF PSYCHOLOGICAL ABUSE AND CRIMINAL PROSECUTION.

• Author: Knapp, Delaney Rives

INTRODUCTION

Jennifer Marchant and her boyfriend argued after a night out. (1) When the argument became loud, the boyfriend called 911. (2) His object: to report that Jennifer, who was on probation, had been drinking, notwithstanding the fact that he had been drinking with her for hours. (3) The 911 operator answered, heard voices and spoke briefly to the boyfriend before the boyfriend hung up. (4) The operator called back and tried to speak to Jennifer, and the boyfriend hung up. (5) The operator called again, and he hung up again. (6) Another operator called; before hanging up again, the boyfriend warned the operator that '"there would be trouble' if she sent the police." (7) She sent them anyway. (8) Meanwhile, the boyfriend chased Jennifer around the apartment, knocking things over. (9) Jennifer grabbed a knife from the kitchen and locked herself in the bathroom. (10) The boyfriend broke down the bathroom door and physically assaulted her. (11) She responded in self-defense, stabbing him once in the chest. (12) He died, (13) and then a jury in the Niagara County Court convicted Jennifer of manslaughter in the first degree. (14) This case demonstrates the process by which a victim of domestic violence, once gaslighted (15) through the psychological manipulation of having her reality distorted (16) by her partner and perpetrator, is then subsequently gaslighted by the criminal justice system as she (17) is labeled a criminal defendant, despite being a survivor.

This Note explores the effects of criminal proceedings and societal perceptions in domestic violence cases involving self-defense as a justification and will offer suggestions for how this process can evolve to be victim centered and trauma informed. Part I provides a foundation for understanding domestic violence, an introduction to the concept of psychological abuse, and a definition of gaslighting as a tactic of power and control within intimate partner relationships. Part II discusses various aspects of the utilization of self-defense by domestic violence victims in criminal proceedings. Part III analyzes various societal perceptions of female domestic violence victims, which then subsequently impact the outcome of their cases at trial. Finally, Part IV provides suggestions for how to make the criminal justice system more victim centered and trauma informed with respect to cases of domestic violence in order to limit the retraumatization which occurs when a survivor is charged with the murder or manslaughter of her perpetrator.

1. GASLIGHTING

   Domestic violence is generally defined as a "pattern of coercive behavior [utilized by a perpetrator] against their intimate partner in an attempt to gain or maintain power and control" through tactics including physical violence, stalking, isolation, sexual abuse, economic abuse, emotional abuse, and psychological abuse. (18) Focusing on emotional and psychological abuse, the two terms are distinguished in that the former refers "to conduct that threatens to impair a victim's ability to access and express his or her emotions," and the latter refers "to conduct that threatens to impair a victim's entire mental faculties." (19) This is a seemingly subtle difference, but is essential for understanding the overwhelming nature of gaslighting.

   The Duluth Model "Power and Control Wheel" is a visual tool established to provide context to various types of domestic abuse tactics, as well as specific and recognizable examples of victims' experiences. (20) Notably, the wheel includes tactics such as minimizing, which is achieved through making light of the abuse and not taking the victim's concerns about it seriously; denying, which occurs through explicitly saying the abuse didn't happen; and blaming, in which the perpetrator shifts responsibility for the abusive behavior or says that the victim caused the abuse to occur. (21) These behaviors were understood as tactics under the broad category of psychological abuse until the term gaslighting was introduced. (22)

   The term originated in the 1938 play Gas Light, in which "a felonious man seeks to convince his wife that her mind is unraveling." (23) In the play, the wife notices that her husband has dimmed the gaslights in the house, but he tells her she is "imagining things--they are as bright as they were before." (24) At first, this seems outrageous--how could someone not understand, and be able to validate for themselves, their own reality? But this type of experience has since gained legitimacy in conceptualizing the extent of psychological abuse. (25)

   Gaslighting is a successful tactic because while one person--the perpetrator--"externalizes and projects" their thoughts, feelings, or perceptions, the other person--the victim--"incorporates and assimilates" the reality that is being created for them.' (26) "Gaslighting equals misdirection, distraction, and the deliberate denial of reality," which can so easily occur in a relationship based on one partner wielding power and control over another. (27)

   This emotionally and psychologically manipulative tactic (28) is undeniably experienced by many victims of abuse within what they believe to be as an intimate partner relationship. Although gaslighting usually involves more specific incidents and events of psychological abuse, (29) I suggest that this term can be applied more broadly to the experiences of many victims of domestic violence. This is due to the nature of interpersonal relationships, which should promote love, respect, and equality, but instead are plagued by unhealthy behaviors, abuse, and violence. Having to reconcile these contrasting characteristics within a singular relationship can be disorienting to victims, and therefore creates the gaslighting effect.

   The phenomenon then replicates itself when, through the criminal justice process, a victim of domestic violence becomes a criminal defendant: hoping that her justification defense will be accepted, and her innocence validated by the necessary for her to survive. (30) The current criminal justice system contributes to the continued gaslighting of domestic violence victims by labeling them criminal defendants when they are truly survivors.

2. CRIMINAL LAW

   1. Self-Defense

      "Self-defense is generally defined as the justifiable use of force upon another when one reasonably believes that such force is necessary to protect oneself from imminent danger of unlawful bodily harm." (31) A necessary requirement is that the force must be proportional, and not excessive, in relation to the harm threatened. (32) Therefore, justification for the use of deadly force only is established "if there is a reasonable belief that such force is necessary to protect herself from imminent, unlawful deadly force by another." (33) In cases of homicide, the "traditional requirements of self-defense are interpreted narrowly because the defense is being used to justify the taking of a human life." (34) Such narrow interpretation acts to "ensure that only those defendants who have no other choice but to kill are acquitted." (35)

   2. Success Rates of Self-Defense

      Over the past few decades, several studies have determined that a large majority of women incarcerated for killing men have been previously battered by those men. (36) Often "those who defend themselves against batterers are given no special consideration" and in some cases, "face greater punishment than other defendants." (37) A study conducted by The Michigan Battered Women's Clemency Project (38) revealed that

      domestic violence victims had higher conviction rates and longer sentences than all others charged with homicide, including those with previous violent criminal records. Overall, a white female defendant with no prior convictions or criminal history who was convicted by a jury of killing a white person could expect an average sentence of 10 to 30 years. However, if the woman was a victim of domestic violence, her predicted sentence increased to life. (39) When comparing sentences based on gender, "[w]omen receive harsher sentences for killing their male partners than men receive for killing their female partners." (40) "The average prison sentence of men who kill their female partners is 2 to 6 years." (41) Conversely, "[w]omen who kill their partners are sentenced on average to 15 years, despite the fact that most women who kill their partners do so to protect themselves from violence initiated by their partners." (42) Based on these statistics, men who exert the ultimate form of power and control by murdering their female partners receive sentences that are significantly less than women who kill their partners in defense of their lives. (43) The injustice of the value placed on the life of a woman killed by her partner is heart-wrenching.

      When considering the intersectionality (44) of gender and race, the statistics reveal an even deeper bias against women of color. (45) Black women and other marginalized people are "especially likely to be criminalized, prosecuted, and incarcerated while trying to navigate and survive the conditions of violence in their lives." (46) In one of her studies, Sharon Angella Allard determined that the ratio of black women to white women convicted of killing their abusive husbands was nearly two to one. (47) Allard concluded that the legal system legitimizes racialized stereotypes of black women as "angry," and therefore there exists "a greater likelihood that a jury would believe a prosecutor's story that a battered Black woman acted out of revenge and anger, as opposed to fear, in taking the life of her batterer." (48)

      Law, as an inherently patriarchal institution, (49) has made it extremely difficult for women to navigate the use of self-defense as a justification. Notably, a battered woman's self-defense claim is most likely to be successful following an acute battering incident. (50) Death resulting from a violent altercation is likely to produce the severe bodily injury...