The prospective effects of modifying existing law to accommodate preemptive self-defense by battered women.

• Author: Veinsreideris, Martin E.

INTRODUCTION

The acceptance of violence between private citizens in a free society, while morally repugnant, is seemingly necessary. The coexistence of laws punishing for murder and absolving absolutely for self-defense points to a tension between values that society holds as sacred. Nowhere is this tension more apparent than in the debate over the concept of "preemptive" self-defense. This particular variant of self-defense arises in situations where a would-be aggressor is attacked without a clear, imminent show of force, based on the would-be victim's perception of future danger.(1) This Comment explores the role of preemptive strikes in the law of self-defense in three contexts: battered woman syndrome cases, prisoner on prisoner violence, and the so-called "cultural defense."(2) In particular, this Comment argues that the dilution of self-defense law's imminence requirement in cases in which battered women preemptively attack their husbands will be misappropriated by prisoners, who could claim the right to preemptively attack other inmates. Likewise, proponents of the cultural defense will use a relaxed imminence requirement to argue that preemptive strikes in the name of self-defense inhere in a particular minority culture's norms, and should thus be excused from culpability. Ultimately, a more focused approach towards preserving the imminence requirement is necessary to prevent preemptive self-defense claims from succeeding in situations (such as prison) in which society is less prepared to accept this kind of violence than it is in those situations involving battered women.

This Comment generally examines situations in which the dilution of the imminence requirement in self-defense law that is seen in battered woman syndrome cases can be misappropriated by prisoners (and commentators) who claim a fight to preemptive self-defense in anticipation of a future attack. Part I of this Comment provides an overview of state statutory treatment of the imminence requirement in self-defense and offers paradigmatic examples of the different formulations. Part II examines various proposals to modify substantive self-defense law in reaction to battered woman syndrome cases. Part III discusses the negative effects that any change to the substantive law as a reaction to battered woman syndrome cases would have on preemptive self-defense in prison. Part IV explores the possibility that acts of violent preemptive self-defense could be excused through a combination of a relaxed imminence requirement and the cultural defense. Finally, Part V argues that clemency, encompassing both pardons and commutation of sentences in battered woman syndrome cases, rather than a relaxed imminence requirement with far-reaching negative effects, could serve as an alternative means of pursuing the interests of justice.(3)

1. THE ROLE OF IMMINENCE IN SELF-DEFENSE LAW

   The basic requirements for the use of force to defend oneself against an unlawful attack are generally well settled, yet they are riddled with small differences from jurisdiction to jurisdiction. One may use force to defend oneself so long as the responsive force is necessary, in response to an imminent attack, and proportional to the force threatened.(4) These three basic doctrinal requirements have been composed in seemingly infinite linguistic variations.

   1. Model Penal Code

      The Model Penal Code, for example, states that "the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force ... on the present occasion."(5) The Model Penal Code also allows the use of deadly force if the actor "believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat."(6) One justification for the Code's seemingly broader allowance of force against such crimes is "the extreme degree to which [such crimes] deprive the victims of the opportunity to exercise their right to self-determination."(7) An example of self-defense that might be justified under the Model Penal Code, but not under certain state statutory schemes, is:

      V takes a book to a bench in the park, fully intending to sit there and read all afternoon; A approaches with a baseball bat, orders V to stay on the bench until 3:00 P.M., and threatens to hit V with the bat if but only if V tries to leave before 3:00. When noise distracts A, V makes her escape by grabbing the bat and hitting A, breaking his leg.(8) Under the Code's liberty-enhancing scheme, such a use of force is legitimate because V's "sovereignty" is threatened.(9)

   2. State Statutory Treatment

      State statutes generally treat the immediacy requirement of self-defense in one of two ways. Certain statutes use language stating that any threatened force must be "imminent" before self-defense is allowed.(10) Other statutes use language indicating that any force used must be "immediately necessary."(11) As will be evident when considering battered woman syndrome and prisoner self-defense, the specific formulations have inherent differences and can sometimes have an effect on whether or not a jury instruction is given on self-defense.(12)

      Alongside the distinction between "imminent" and "immediately necessary" is the requirement of reasonableness found in certain state statutes.(13) The presence of a reasonableness requirement indicates that the jurisdiction has an objective standard of self-defense, while the lack of such a requirement generally indicates a subjective standard of self-defense.(14) Again, the presence or lack of a reasonableness requirement is clearly relevant to the actions of battered women and to those of prisoners who attack preemptively out of self-defense.(15) In fact, the reasonableness requirement often serves as a gatekeeper for a self-defense instruction to a jury.(16)

      An example of a state that has adopted a broad approach to its statute's imminence and reasonableness requirements is North Dakota. That state's supreme court stated in the case of State v. Leidholm, which involved a woman killing her husband while he slept after an argument:

      If, therefore, a person has an actual and reasonable belief that force is necessary to protect himself against danger of imminent unlawful harm, his conduct is justified or excused.... .... [W]e now decide that the finder of fact must view the circumstances attending an accused's use of force from the standpoint of the accused to determine if they are sufficient to create in the accused's mind an honest and reasonable belief that the use of force is necessary to protect himself from imminent harm.(17) In many cases involving battered women, as will be seen, the immediacy requirement can often be more outcome-determinative than a reasonableness judgement.(18)

2. SELF-DEFENSE AND BATTERED WOMAN SYNDROME

   1. The Role of Battered Woman Syndrome in the Courtroom

      The origin of battered woman syndrome is typically traced back to the 1979 book The Battered Woman by Lenore Walker.(19) Walker's theories have become quite well known and well commented upon in both legal and sociological circles.(20) Battered woman syndrome is usually introduced to a jury through expert testimony.(21) As a practical matter, courts increasingly have accepted expert testimony regarding battered woman syndrome since its initial formulation, particularly in cases involving homicides.(22) The utility of battered woman syndrome testimony for the defense is summarized by Robert Schopp:

      Courts and commentators have argued that expert testimony regarding battered woman syndrome provides juries with important information regarding several aspects of self-defense.... [S]ome cases involve circumstances in which the defendants exercise violence in the absence of an imminent overt attack. Some contend that expert testimony regarding the syndrome explains how these defendants could reasonably believe that attacks were forthcoming and that defensive force was necessary despite the absence of immediate violence. Some courts and commentators discuss a special ability to perceive subtle clues of forthcoming violence as part of the syndrome, arguing that this aspect of the syndrome renders the perception of imminent violence reasonable despite the lack of external indicators....(23) The acceptance of battered woman syndrome testimony in the courtroom is far from universal; as Faigman and Wright note, "this sympathetic approach has not been entirely uncritical and some courts remain adamantly opposed to the introduction of this evidence on the basis of legal doctrine or inadequate science."(24) While the introduction of past instances of abuse and of expert testimony regarding the reasonableness of a particular woman's response to abuse does not guarantee an acquittal, expert testimony affords defendants the opportunity to prove an affirmative defense.

      The model introduced by Walker includes a series of cycles, whereby a "tension building" phase is followed by an "acute battering incident," which is in turn followed by a period of "loving contrition."(25) During the phase of "loving contrition," the batterer "typically expresses regret and profusely apologizes, usually promising never to batter the woman again," which contributes to the victim staying in the abusive relationship.(26) During the cycle, the woman falls victim to a "cumulative terror" of violence, fearing harm "even during the peaceful interlude between episodes of abuse."(27) As a result, the victim often sees a lull in the violence as her only opportunity to defend herself against a physically larger and stronger aggressor, and against the looming threat of future violence.(28)

      More significant than expert testimony regarding reasonableness in such cases is the difference in practical application between reasonableness and imminence. As was seen in Norman II...