Killing One's Abuser: Premeditation, Pathology, or Provocation?

• Publication year: 2010

Killing One's Abuser: Premeditation, Pathology, or Provocation?

Christine M. Belew

KILLING ONE'S ABUSER: PREMEDITATION, PATHOLOGY, OR PROVOCATION?

INTRODUCTION

Mr. Grove frequently abused his wife, Jessie, throughout their twenty-two year marriage.¹ One night in 1981, he arrived home drunk, threatening to kill Jessie and the children.² After Grove finally went to sleep, Jessie shot him.³ Because Jessie admitted that Grove was asleep when she shot him, a Pennsylvania court found as a matter of law that he could not have posed an "imminent" threat to her or her children and therefore denied her a self-defense jury instruction.⁴ The jury ultimately found her guilty of first-degree murder.⁵

Mr. Diaz physically and sexually abused his wife, Madelyn, for five years, often threatening to kill her.⁶ One night, Madelyn shot him as he slept, fearing that he would carry out his threats when he awoke.⁷ Like Jessie, she was charged with murder, but a New York court allowed Madelyn to receive a self-defense jury instruction, and she was acquitted.⁸

The stories of these two women provide just a glimpse into the inconsistent results reached in cases involving battered women who kill their abusers in nonconfrontational situations. Most homicides committed by women against abusive partners occur during an actual physical confrontation,⁹ and these

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cases can proceed under normal self-defense rules.¹⁰ However, in a minority of situations, battered women kill their sleeping abusers¹¹ and sometimes declare that their actions were necessary to prevent future serious bodily harm or even death.¹² While some American jurisdictions allow a jury to consider self-defense when a battered woman has committed a nonconfrontational homicide, many do not because any threat from a sleeping abuser is regarded as non-imminent.¹³ This disparity in self-defense law results in varying outcomes for battered women defendants in homicide trials.¹⁴

For self-defense to justify a killing, the defendant must have genuinely and reasonably believed that the use of deadly force was necessary to protect herself from an unavoidable, imminent threat of death or serious bodily harm.¹⁵ Evidence on Battered Woman Syndrome (BWS), a theory describing the effects of recurring abuse in domestic relationships, attempts to explain why conventional assumptions about reasonableness and imminence fail to account for the real-life circumstances of the battered woman defendant.¹⁶ Some courts have used BWS to replace an objective standard of reasonableness with a primarily subjective standard, allowing battered women to more easily and, oftentimes, successfully argue self-defense even though no immediate threat would have been found under traditional legal theories.¹⁷

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However, the traditional reasonableness and imminence requirements are crucial components of self-defense law precisely because they help ensure that only unavoidable killings are justified.¹⁸ One can hardly argue that a sleeping abuser presents a truly unavoidable threat. Hence, courts that stretch the traditional self-defense requirements to accommodate battered women distort the traditional elements of the law and may encourage violent self-help.¹⁹ On the other hand, jurisdictions that refuse to allow battered women who preemptively kill to claim self-defense, thus resulting in murder or manslaughter convictions, may be out of step with notions of substantive justice.²⁰ The record number of pardons and commutations in recent years for battered women convicted of murder reveals that this is most likely the case.²¹ Therefore neither approach is satisfying.

This Comment illustrates how the current American approach of limiting battered women who preemptively kill to claims of self-defense has resulted in distortions in the law. It explores some of the practical results of using self-defense for battered defendants in nonconfrontational cases and demonstrates that this approach leads to outcomes that are in tension with social sentiments and the goals of the criminal law. Therefore, a new strategy is needed to better accommodate such cases. In proposing a new solution, this Comment draws from the experiences and strategies of approaches used in Australia and England to address the issues posed by battered defendants.

Advocating the English approach, this Comment argues that using the law of provocation,²² rather than self-defense, will lead to the most just outcomes

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for battered women who preemptively kill their abusers. However, current provocation laws do not accurately reflect the situational realities in which battered women kill their abusers. Hence, provocation laws will need to be reformed to allow for situations in which women kill out of fear of serious violence.

Part I of this Comment briefly discusses BWS, its development in the United States, and its relationship to the law of self-defense. Part II more closely examines the current problems with the treatment of BWS in American courts and the extreme results reached for battered women who kill in nonconfrontational circumstances. Part III explores the legal treatment of BWS by courts in Australia and England in order to consider other strategies used to accommodate battered women within the law. This Part recognizes that comparing the solutions reached by other common law countries offers an opportunity to find a better solution for the United States. Finally, Part IV proposes applying provocation law to battered women who preemptively kill their abusers as the best way to achieve substantive justice for battered women while still fulfilling the goals of the criminal law. However, Part IV also recommends changing current provocation law to more accurately reflect the realities and perceptions of battered women who kill their sleeping abusers. It proposes a reformed provocation defense that would mitigate murder to manslaughter in cases where battered women preemptively kill an abuser out of a fear of serious violence.

I. BATTERED WOMAN SYNDROME AND SELF-DEFENSE

Battered women defendants who kill their abusers often claim they acted in self-defense.²³ Generally, however, battered women who preemptively kill their abusers cannot prove the traditional elements of self-defense, which include reasonableness and imminence.²⁴ As a result, the theory of BWS was developed to support a battered woman's self-defense claim by showing how the woman might have reasonably thought her actions were defensive and necessary.²⁵ This Part first describes the traditional elements of self-defense

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law and examines the primary difficulties battered women defendants face in claiming self-defense. Next, this Part explains the theory behind BWS and how evidence of past abuse may be used to inform a self-defense claim. Finally, this Part briefly discusses the introduction of BWS into American courts.

A. The Self-Defense 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.²⁶ The force used must not be excessive in relation to the harm threatened.²⁷ Thus, a person is justified in using deadly force only if there is a reasonable belief that such force is necessary to protect herself from imminent, unlawful deadly force by another.²⁸

In homicide cases, the traditional requirements of self-defense are interpreted narrowly because the defense is being used to justify the taking of a human life.²⁹ A person who defends herself against a threat of harm can only use violent self-help as a last resort.³⁰ By requiring that the defender's actions be in response to an immediately threatened harm, self-defense law aims to ensure that only those defendants who have no other choice but to kill are acquitted.³¹

1. The Elements of Self-Defense

To make a successful self-defense claim, a defendant must show that she had a reasonable belief that she was in imminent danger of great bodily harm or death at the time she acted.³² Most courts have found that a self-defense claim has both subjective and objective elements.³³ First, the defendant must have subjectively believed she was in danger of death or serious harm at the time she acted and thus needed to use deadly force to repel an imminent,

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unlawful attack.³⁴ Second, her subjective belief must have been one that a "reasonable person" in the same situation would have possessed.³⁵ Therefore, self-defense justifies a defendant in killing a perceived aggressor only if the belief was also objectively reasonable.³⁶

Reasonableness and imminence are closely related. In the absence of an imminent threat, the objective reasonableness element of self-defense usually cannot be met since there was no immediate harm requiring a reaction.³⁷ Though there is no single definition of "imminence" applied by courts, at common law it is generally understood to mean a threat of harm that is pressing and urgent and will occur immediately.³⁸ The danger is not imminent if the harm is threatened to occur at a later time.³⁹ The imminence requirement ensures that a person will use deadly force to preserve herself from death or serious harm only as a last resort.⁴⁰

2. Problems for Battered Women Who Claim Self-Defense

Battered women who kill sleeping abusers face many obstacles in raising a traditional self-defense claim.⁴¹ The objective reasonableness element of self-defense is the most problematic.⁴² This requirement was originally developed to address situations where a man kills another man in a one-time, face-to-face

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confrontation.⁴³ Of course, this stereotypical scenario does not accurately reflect the realities of a battered woman's situation.⁴⁴ Generally, a battered woman must protect herself against a male abuser who is physically larger and stronger and with whom she has an ongoing or past relationship.⁴⁵ Nevertheless, under traditional...