From fear to rage: black rage as a natural progression from and functional equivalent of battered woman syndrome.

• Author: Foster, Tosha Yvette

Between 1993 and 1995, Americans witnessed a series of notable, highly publicized criminal trials.(1) The most recent notable trial, that of O.J. Simpson,(2) resulted in a not guilty verdict that proved difficult for some to accept.(3) The criminal verdict also was accompanied by a decrease in the level of faith in the criminal justice system.(4) For many, however, doubts about the ability of the current criminal justice system to punish wrongdoers and by extension, to protect society at large, likely predated the Simpson verdict.

From the much publicized Menendez trial, to the much discussed Bobbitt trial, Americans have questioned judicial acceptance of "abuse excuses."(5) When evaluating the guilt or innocence of the accused, jurors were urged to consider battered child syndrome in the Menendez trial and battered woman syndrome in the Bobbitt trial.(6) Both battered child syndrome and battered woman syndrome are commonly asserted abuse excuses.(7) 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.(8) Few people, however, anticipated the black rage defense claimed by Colin Ferguson, the assailant in the Long Island Railroad shooting,(9) and even fewer people were willing to accept the black rage defense.(10) Some commentators argue that as long as the excuses are legitimate, they should be allowed.(11) 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.(12)

This Note addresses the link between battered woman syndrome, battered child syndrome, and black rage in homicide cases. The first section presents a brief overview of traditional defenses to homicide such as self-defense and insanity and addresses the admissibility of psychological expert testimony in general. The second section defines battered woman syndrome, battered child syndrome, and black rage and analyzes the method by which courts accept and employ each defense. The third section argues for admissibility of expert testimony regarding black rage in order to establish a defendant's insanity. This section also asserts that battered woman syndrome and black rage should receive equivalent treatment. Finally, the fourth section cautions that although black rage theoretically is viable, in practical application the consequences of accepting black rage may prove too enormous for it to become a successful defense.

HISTORICAL OVERVIEW

Traditional Defenses to Homicide

Black rage as a defense to homicide has a foundation in criminal jurisprudence. To accurately understand and assess black rage as a defense to homicide, it is necessary to recognize the nuances of traditional, widely accepted defenses to homicide.

Self-Defense

Self-defense is one of the oldest justifications for homicide in American jurisprudence.(13) Self-defense requires that the use of deadly force be limited to cases involving protection "against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat."(14) A defendant asserting self-defense through use of deadly force must demonstrate a reasonable belief in the necessity of the force, a lack of initiation of the altercation on the part of the defendant, and an inability on the part of the defendant to retreat without the use of deadly force.(15) The legal effect of accepting a claim of self-defense in homicide cases is an acknowledgement that the accused caused the decedent's death but that such action was justified given the circumstances and therefore, no crime was committed.(16) When the self-defense theory prevails, the accused is neither convicted nor punished.

"Imperfect" Self-Defense

Imperfect self-defense invokes a slightly more subjective view of traditional self-defense theory. Imperfect self-defense involves a failure to satisfy one of the elements of traditional self-defense.(17) Usually, imperfect self-defense entails using force against another with an honest but unreasonable belief that such force is necessary.(18) In homicide cases, this element means that given the circumstances the defendant faced, deadly force was not necessary.(19) Raising a defense of imperfect self-defense can yield one of two results depending on the jurisdiction. In some jurisdictions, if the use of force is not justified, the defendant is guilty of homicide.(20) Thus, imperfect self-defense is not a justification for homicide in these jurisdictions. Other jurisdictions reduce the charge of homicide to manslaughter, however, thereby using imperfect self-defense as a mitigating factor rather than a complete excuse.(21)

Insanity

The insanity defense differs from traditional self-defense in one major respect. Self-defense acknowledges that the crime occurred, i.e., the defendant committed the act, but further acknowledges that in some way the defendant's behavior was excused because his actions were justified.(22) A successful insanity plea acknowledges that the criminal act occurred, but the insanity defense holds that the accused is not criminally responsible due to his mental state.(23) There are several different legal tests to determine when and whether the insanity defense should apply including the M'Naghten rule,(24) the "irresistible impulse" test,(25) the Durham "product" test,(26) and the American Law Institute (ALI) "substantial capacity" test.(27) The ALI test is most commonly employed to determine insanity.(28)

In most states, an insanity plea, if accepted, manifests itself in one of two verdicts.(29) One verdict is "not guilty by reason of insanity" (NGRI).(30) A NGRI finding indicates that the defendant committed the act but was insane at the time that the crime was committed.(31) No reasonable doubt exists that the defendant committed the act charged.(32) NGRI assumes that the defendant would have been found guilty had the defendant been sane.(33) With a NGRI verdict, the court may continually monitor the defendant by criminal commitment until the defendant is no longer dangerous and in need of treatment.(34) The other verdict involved in insanity pleas is "guilty but mentally ill" (GBMI).(35) GBMI was enacted in large part to assuage the fears of the public concerning crimes committed by NGRI acquittees after their criminal commitment terminated.(36) A GBMI verdict finds that the defendant is guilty of the crime charged but in need of treatment due to psychological illness.(37) Under a finding of GBMI, a defendant is convicted and sentenced like any other sane, guilty defendant, sent to a state mental health facility and, theoretically, treated.(38) The defendant remains in the facility until he has recovered, at which time the defendant serves the remainder of his sentence in prison or on probation, depending on the conditions of his sentence.(39)

Although many aspects of insanity are governed by changing statutory law and public perceptions and concerns,(40) the legal process continues to depend on expert psychological evaluation and testimony for guidance in complex homicide cases.(41)

Admissibility of Psychological Expert Testimony

Battered woman syndrome, battered child syndrome, and black rage all are defenses for which expert testimony is essential to facilitate an understanding of the nature of the defense. Therefore, the way in which courts historically have treated psychological expert testimony is crucial to analyzing the abuse excuse defenses. The following overview of admissibility of expert testimony allows for more informed speculation as to the courts' treatment of expert testimony regarding the black rage defense.

Expert Testimony

Expert witnesses assist the trier of fact by providing opinions and testimony within the witnesses' areas of expertise.(42) When presenting expert testimony regarding issues of present scientific or clinical knowledge, the expert must have "a degree in a medical or scientific discipline; and. . . relevant clinical or research experience, and a demonstrated familiarity with current scientific or clinical information on the specific issue about which the witness is called to testify."(43) Expert testimony is limited in that experts may not express an opinion on any question "requiring a conclusion of law or a moral or social value judgment properly reserved to the court or the jury."(44) Thus, although allowed in the legal arena, psychological experts are not expected or permitted to comment on legal matters in criminal trials.

Most crimes, particularly the crime of murder, focus on the mens rea of the accused.(45) Likewise, defenses such as self-defense and insanity also focus on the state of mind of the defendant.(46) Historically, mental health experts have been allowed to testify when a defendant's competency to stand trial was questioned or when the defendant put forth an insanity plea.(47)

With the advent of battered woman syndrome, battered child syndrome, black rage, and other abuse excuses, psychological expert testimony has changed in terms of admissibility, scope, and application to situations other than competency and insanity.(48)

MODERN JURISPRUDENCE

Expanding Self-Defense?

Battered Woman Syndrome(49)

Battered woman syndrome is a concept developed in the late 1970s and a term coined by Dr. Lenore Walker in 1979.(50) The syndrome was developed in order to help explain the psychological characteristics manifested by women who were physically abused by their husbands or lovers and the long-term effects that resulted as a consequence of the abuse.(51)

Dr. Walker has defined the battering relationship in three phases.(52) The first phase is considered the "tension-building phase," in which relatively minor, periodic episodes of psychological, physical, or sexual abuse occur.(53) The second phase is labeled the "acute battering phase," in which extreme violence occurs.(54) The...