Subjective Vulnerabilities or Individualized Realities: The Merits of Including Evidence of Past Abuse to Support a Duress Defense.

• Author: Dunn, Michaela

"It is clear that the American home, once assumed to be the cornerstone of our society, is often a violent place." (1)

"Another specifically American form of ideology asserts the belief in freedom. 'Women are free to go; why don't they just leave?' This definition of freedom ignores the fact that many women have nowhere to go." (2)

1. Introduction

   In the United States, one in four women experience abuse by an intimate partner during their lifetime. (3) When a person repeatedly experiences abuse at the hands of an intimate partner, they may develop a psychological condition termed Battered Woman Syndrome (BWS). (4) In the late 1970s, psychotherapist Lenore Walker developed the theory of BWS to describe a pattern of cyclical violence against women that leads to "measurable psychological changes," collectively referred to as a sense of "learned helplessness." (5) Under BWS theory, victims of repeated domestic abuse become incapable of recognizing opportunities for escape or other alternatives to their abusive environment. (6) Moreover, such stress makes victims particularly sensitive to perceiving an imminent threat at the hands of their abuser, even when such a threat is not present. (7)

   Scholars observing the prevalence of domestic violence cases in the criminal justice system questioned the propriety of prosecuting victims who attacked their abusers in self-defense, and whether or not such circumstances called for a new, independent defense based on BWS. (8) In particular, courts have undertaken a reevaluation of the relevancy of a defendant's experience with intimate partner violence in determining that defendant's overall culpability. (9) Trial courts also began admitting expert testimony on the psychology of abuse victims and the effect that long-term abuse has on their state of mind as relevant to reshaping the jury's understanding and assumptions of defendants who experience intimate partner violence. (10)

   In doing so, legal scholars and advocates rely on scientific studies and empirical evidence concerning domestic violence and abuse victims' responses to that violence. (11) BWS evidence also includes "expert descriptions of the syndrome and a statement regarding the tendencies of domestic violence victims to act in certain ways." (12) Other types of testimony include: the psychological reaction or sequelae of domestic violence victims, the basic nature of domestic violence, an explanation of what may appear to a factfinder as unexplainable behavior from the victim, and background information regarding behaviors that lay people may not interpret as "typical" of an abuse victim. (13) Depending on the jurisdiction's self-defense rules, testimony on BWS may be admissible on the issue of credibility, the defendant's subjective belief of the need to defend themselves, the objective reasonableness of that belief, and the issue of imperfect self- defense. (14)

   Although BWS evidence is permitted in cases where the defendant claims self-defense, courts have been less accepting of BWS testimony where the defendant asserts a defense of duress. (15) In particular, some courts have been reluctant to extend the use of BWS evidence where the testimony includes evidence of abuse not perpetrated by the same people coercing the defendant's criminal action because they find it clouds the delineated, objective requirements of a duress defense. (16) This reluctance is unjustified, however, because the use of BWS testimony in duress claims closely parallels the widely-accepted use of BWS in self-defense cases. (17) In order to establish the common law duress defense, a defendant must prove by a preponderance of the evidence that she was under an immediate threat of death or serious bodily injury; that she had a reasonable, well-grounded fear that the threat would be effectuated; and that she had no reasonable opportunity to escape her abuser. (18) When evaluating a duress defense, courts and juries apply an objective, reasonable-person standard to determine whether the defendant had a reasonable fear of the threat being effectuated, similar to the standard used in self-defense cases. (19) In cases of both self-defense and duress, advocates may proffer BWS evidence to demonstrate how abuse victims reasonably perceive being threatened with imminent danger, particularly when such a perception would not be apparent to the outside observer. (20)

   For example, in United States v. Lopez, the Ninth Circuit Court of Appeals, in a case of first impression, allowed defense counsel to use BWS expert testimony regarding the defendant's experience with past abuse to support an affirmative defense of duress to federal firearm charges. (21) After the district court in California denied the defendant, Lashay Marie Lopez, an opportunity to introduce BWS evidence regarding her past abuse, the jury found Lopez guilty of three federal charges of purchasing a firearm with a false identification (ID). (22) At trial, Lopez argued that she purchased the handgun for her boyfriend, Hector Karaca, using her identical twin sister's ID because Karaca threatened to harm Lopez and her family if she did not comply. (23) Lopez moved to introduce expert testimony on the effects of past physical and sexual abuse, particularly her experiences with other abusers, in order to establish that her subjective fear of Karaca was reasonable, and that she did not have a reasonable opportunity to escape or to seek help from the police. (24) On appeal, the government cited authority from the Fifth Circuit to argue that such evidence was inadmissible because it moved the standard for a duress defense from the defendant's objective fear to a subjective fear. (25) The appellate court reversed the district court's findings and held that all BWS evidence is admissible to satisfy the reasonable-person standard of the duress defense. (26) In doing so, the Ninth Circuit not only set new precedent for their circuit, but also directly contested the Fifth Circuit authority relied on by the prosecution. (27)

   This Note will analyze the origins of BWS and how its application may be well suited to a duress defense, in addition to its traditional application to a self-defense claim. (28) In comparing dicta from the Ninth Circuit and other sister circuits, this Note will also analyze the Lopez decision and the admissibility of BWS evidence, in particular the idea that past instances of abuse are necessarily included in the objective factors related to a duress defense. (29) This Note concludes that BWS evidence of past abuse does not describe a defendant's subjective vulnerabilities, and instead describes the difficult circumstances leading to a sincere moral dilemma. (30)

2. History

   1. The Development of BWS Theory

      BWS is a psychosocial theory that refers to the effects characteristic of a long-term pattern of abuse, both physical and mental. (31) Lenore Walker coined the term BWS in the late 1970s to describe both a pattern of violence against women and the resulting shift in behavior and psychological processes caused by repeated abuse. (32) Within BWS, Walker developed two distinct theories, the first of which describes a pattern of violence with three different phases that victims experience. (33) In phase one, the tension-building phase, the victim tries to avoid verbal arguments and lower-level physical abuse; phase two involves an explosion of the building tension with physical abuse. (34) Experts refer to this as an "acute battering incident," which is then followed by a period of loving contrition or absence of tension in phase three. (35) The contrition stage lessens a victim's resolve to end the relationship and strengthens her belief that her relationship will eventually improve. (36) In the end, the tension inevitably rebuilds, and the cycle repeats itself. (37) This cyclical violence imbues the victim with a sense of "learned helplessness." (38)

      "Learned helplessness," Walker's second theory relating to BWS, describes a victim's belief that any attempt to escape her abuser would be futile, therein diminishing the woman's motivation to respond or take steps to leave her abuser. (39) In other words, the victim does not learn to be helpless, but instead, "is unable to predict the effect her behavior will have on the inescapable, repeated beatings [which] then changes her response to such situations." (40) This theory attempts to explain how an individual who appears normal would otherwise lose the ability to predict that her actions, or lack thereof, would negatively impact her personal safety. (41) Together, experts use these psychological theories to describe and explain the phenomenon of ongoing domestic violence and the victim's inability to leave her abuser. (42)

      The understanding of BWS has changed since Walker's initial definition. (43) Research indicates that abuse victims, as a whole, respond in a manner similar to other groups exposed to repeated trauma, even under considerably different circumstances. (44) Thus, many consider BWS a sub-category of PTSD: "[A] collection of thoughts, feelings, and actions that logically follow a frightening experience," which the victim expects the abuser to repeat. (45) To determine whether a person suffers from PTSD, doctors measure three major symptom clusters: cognitive disturbances, high arousal symptoms, and high avoidance symptoms. (46) Cognitive disturbances "cluster[] around disturbances in memory" and include the minimization and repression of battering incidents. (47) For example, victims who have been abused by multiple abusers, specifically during childhood and from different partners, likely confuse previous abuse experiences with current threats and face flashbacks that fragment abusive incidents and increase their perception of danger. (48) This state of high arousal or anxiety represents a physical and neurological change, making the victim hypervigilant to cues of potential danger. (49) Avoidance behavior...