A victim of abuse should still have a castle: the applicability of the castle doctrine to instances of domestic violence.

Author:Messerschmidt, Cristina Georgiana


Imagine two scenarios. (2) In the first scenario, Billy and his wife Sue are sleeping soundly in their second-floor bedroom, when they are woken up by the sound of broken glass on the first floor. Billy grabs his gun, which he keeps in his night stand, and rushes towards the stairs. He sees movement and the shadow of an intruder. At this point, Billy has two choices: he can either safely retreat to his bedroom and call the police (who will be there in a matter of minutes), or he can rush down the stairs, ambush the trespasser, and shoot him. Billy chooses the second option and kills the intruder. The police show up minutes later. Billy is arrested and later charged with second-degree murder. At trial, Billy argues that he had acted in self-defense-in defense of life and property, to be more exact-and that he had no choice but to shoot the intruder.

At the conclusion of his trial, the judge informs the jury that an individual is justified in using deadly force if that individual does so while trying to prevent a felony from being committed against himself or his dwelling. (3) More specifically, the judge tells the jury that an individual is justified in using deadly force only if he believes that the force is necessary to prevent "imminent death or great bodily harm to [himself] [herself] while resisting: 1. another's attempt to murder [him] [her], or 2. any attempt to commit (applicable felony) upon [him] [her], or 3. any attempt to commit (applicable felony) upon or in any dwelling occupied by [him] [her]." (4) However, since Billy was upstairs, where he and his family could have safely locked themselves in the bedroom and waited for the police, the judge also discusses an individual's "duty to retreat" before taking another person's life. (5) Despite this affirmative duty, the judge concludes by discussing the Castle Doctrine, which says that an individual does not have an affirmative duty to retreat if he is attacked in his own dwelling, as Billy was on the night in question. (6) Billy is ultimately acquitted by the jury.

The second scenario paints a picture of a different kind of couple: Bob and Mary. Although they have been married for many years, Bob often loses his temper with Mary over minor details. When this happens, he throws objects at her, berates her, hits her, and threatens to humiliate her in front of their family and friends. One night, Bob becomes irate when he comes home and does not find beer in the fridge. He yells at Mary for not being a good wife and throws a pot full of hot water at her. Luckily, Mary is able to duck out in time and is not injured. Bob then tells her that he is going to seriously hurt her if she does not go out and get him some beer.

Mary goes out, but the stores are closed. She comes back home and tells Bob that the stores were not open, but before she can say anything else, Bob charges at her, yelling and swearing. Mary rushes up the stairs and into the bedroom, where she grabs Bob's gun from his nightstand. She runs toward the bathroom, where she can safely lock herself inside and call the police, who will be there in a matter of minutes. However, as soon as she hears Bob following her up the stairs, she freezes. When he walks into the room, even though she is standing steps away from a safe retreat, Mary shoots Bob in the chest, after which she promptly calls the police. Mary is arrested and charged with second-degree murder.

At trial, Mary claims self-defense, arguing that she felt her life was threatened by Bob's repeatedly abusive behavior. At the conclusion of her trial, the judge refuses to provide the Castle Doctrine instruction (provided to Billy in the example above) because Bob and Mary were cohabitants; Bob was a lawful resident of the home in which he assaulted Mary. (7) Since Mary's 'castle' was also Bob's home, and since the two lived together in this home, the judge denies the defense's request for the Castle Doctrine instruction. (8) The jury finds Mary guilty and she is sentenced to ten years in prison.

It is not unfathomable to believe that, in the first scenario, Billy reacted as any reasonable man would have in his position. He felt threatened and took action to protect himself, his family, and his property by eliminating that threat. Even if Billy could have safely retreated into his bedroom and called the police, the law states that he was justified to do whatever he felt was necessary because the intrusion happened on his property. (9) The second scenario, however, may prove more problematic to parse. Knowing all the facts, few would debate the fact that Mary must have actually felt afraid for her life not only due to Bob's actions on that particular night, but also due to his history of physical abuse. However, Mary's failure to retreat into the bathroom-unlike Billy's failure to retreat into his bedroom-may raise questions regarding Mary's choice to use deadly force against her husband, a legal co-occupant of the home where the incident happened. In some courts, (10) the fact that Mary and the victim-aggressor (11) (Bob) were cohabitants would prevent her from presenting the Castle Doctrine instruction to the jury.

The Castle Doctrine, a long-standing concept (12) in American legal tradition, originates in English common law. (13) In its simplest form, the Castle Doctrine permits an individual to use deadly force against her aggressor without retreating or attempting to retreat before acting against him, but only if she is being attacked in her own dwelling. (14) One of the most widely-accepted definitions of the Castle Doctrine was first penned by Edward Hyde East in Pleas of the Crown, (15) where he stated, "[a] man may repel force by force in defense of his person, habitation, or property, against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary, and the like, upon either." (16) In American law, Justice Benjamin Cardozo articulated this principle in People v. Tomlins, (17) saying.

In case a man ["]is assailed in his own house, he need not flee as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his adversary by flight.["] Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home. (18) The Castle Doctrine has been frequently invoked and successfully used as a defense in cases that resemble the first scenario. (19) When the aggressor has been an intruder into the victim-aggressor's home, the defense has seldom been challenged. (20) However, the application of the Castle Doctrine in cases involving violence among cohabitants is still highly contentious, both in public discourse and among legal scholars. (21) Even though there is an increased acknowledgement of the prevalence of domestic violence in the United States, courts still disagree on whether a woman being attacked in her home by her husband or other male co-habitant can react the same way she would if she were being attacked by an intruder. (22)

Although the State-police officers, judges, prosecutors-is supposed to protect victims regardless of the place where they are victimized, the home is a highly private environment-one that keeps secrets in and intruders out. (23) Domestic violence is often hidden masterfully well, making it very difficult for victims to disclose their plight and receive adequate justice. (24) When domestic conflicts escalate into deadly incidents, the boundary between the private home and the public space becomes increasingly unclear. (25) In cases where victims of domestic violence retaliate against their partners, it is often the case that the term "victim" is questioned, because the violence has often been kept secret up to that point. (26) The secrets of the home, all of a sudden, come out into the public eye, forcing the State to pry into the private environment of the home.

Furthermore, our society's increased focus on property and privacy rights proves problematic when considering the applicability of the Castle Doctrine to conflicts between cohabitants. (27) In a situation where the victim and the aggressor live under the same roof (i.e., own or rent the same home, enjoy the same property-related privileges, and have the same property-related obligations), it is difficult to find a justification for applying the "every man's home is his castle" logic. After all, the ultimate question seems to be: whose castle is it? The victim's? Or the aggressor's?

This Comment explores the question of whether the Castle Doctrine should apply in instances of domestic violence, like that between Mary and Bob. To put the question another way: in domestic violence situations such as those depicted in the second scenario, should the defendant be entitled to a jury instruction that clearly states that the affirmative duty to retreat s does not exist when a person is attacked in her own dwelling?

Part I of this Comment begins by investigating the origins of the Castle Doctrine, first as discussed in early English law, then through Beard v. United States (29) and Pell v. State, (30) two of the earliest instances when the Castle Doctrine was cited and analyzed in American legal discourse. The analysis aims to identify the core principles behind the Castle Doctrine as they were first introduced into American legal discourse. Focusing on the state of Florida...

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