ARTICLE
THE EXCUSE OF SELF-DEFENSE:
CORRECTING A HISTORICAL
ACCIDENT ON BEHALF OF
BATTERED WOMEN WHO KILL
CATHRYN Jo ROSEN*
TABLE OF CONTENTS
Introduction ................................................
I. The Theory of Justification ............................
II. The Theory of Excuse .................................
III. The Law of Self-Defense ...............................
A . H istory ............................................
B. The Modern Law of Self-Defense ..................
IV. The Battered Woman's Defense ........................
V. The Case for Excused Self-Defense ....................
Conclusion
.......................................
11
18
21
25
25
27
33
45
56
INTRODUCTION
Domestic violence has been a part of American life at least since
the first European colonists settled on North American soil.' The
phenomenon of wife abuse first encountered public recognition in
the mid-nineteenth century when it was bemoaned by feminists who
* Assistant Professor of Criminal Justice, Temple University. B.A. Case Western Reserve University; J.D., LL.M. Temple University School of Law.
1. See Oppenlander, The Evolution of Law and Wife Abuse, 3 LAw & POL'Y Q. 382, 386
(1981). Since prehistoric times, society has accepted male use of physical force to achieve
dominance over wives and children. Id. at 385-86. Both English common law and ancient
Roman law sanctioned the use of such force. Id. Early English settlers transported tolerance
of wife beating to North America. Id. at 386. For a discussion of colonial and pre-Civil War
treatment of domestic violence in American law, see id. at 385-90; Eber, The Battered Vifes
Dilemma: To Kill or To Be Killed, 32 HASTINGS LJ. 895, 897-99 (1981) (explaining that historical
acceptance of wife beating stemmed from concepts of marital privacy and subjugation of
wives as property of husbands).
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sought to improve the societal position of women through legal reforms. 2 To some extent these early feminists were successful.
Widespread enactment of Married Women's Property Acts improved the legal status of married women. 3 The liberalization of
divorce laws allowed wives to obtain divorces on the grounds of cruelty or misconduct based on physical abuse by their husbands. 4 By
the 1870s, courts had begun to convict husbands who victimized
their wives of assault and homicide. 5 Consequently, public concern
about domestic violence was declining by the turn of the century. 6
These nineteenth century victories, however, were largely illusory. The problem of wife beating by no means disappeared. Divorce was not a viable alternative for most women, 7 and judicial
recognition that men were no longer legally justified in beating their
wives did not readily translate into increased numbers of arrests or
prosecutions for spousal assault and battery.8 Probably as a result
of the rebirth of the women's movement in the 1960s, national attention once again has focused on the problem of domestic violence. Programs and legal reforms designed to cure the problem by
arresting, prosecuting, deterring, and/or rehabilitating abusers have
begun on a number of fronts. Nonetheless, there is no universally
acclaimed panacea for this complex social problem, and attempted
solutions have seriously challenged the continued vitality of some
tenets of American substantive and procedural criminal law.9
2. See Oppenlander, supra note 1, at 392 (noting that birth of women's rights movement
initiated legal restrictions on wife beating).
3. Prior to the enactment of these laws, women could not own property of any kind. C.
THOMAS, SEX DISCRIMINATION IN A NUTSHELL 3 (1982).
4. Oppenlander, supra note 1, at 393.
5. Id. at 394. See, e.g., Fulgham v. State, 46 Ala. 143, 146-47 (1871) (holding that husband's use of force to compel wife's obedience is no longerjustified); Harris v. State, 71 Miss.
462, 465, 14 So. 266, 266 (1893) (repudiating "revolting" precedent allowing husbands to
chastise their wives in moderation); State v. Oliver, 70 N.C. 44, 45 (1874) (warning that courts
will intervene when husband inflicts permanent injury or shows malicious violence); Gorman
v. State, 42 Tex. 221, 223 (1875) (holding husband liable for assault for whipping wife as
punishment).
6. Oppenlander, supra note 1, at 382.
7. See Waits, The CriminalJustice System's Response to Battering: Understandingthe Problem,
Forgingthe Solutions, 60 WASH. L. REv. 267, 281-82 (1985) (arguing that stigma and economic
consequences of divorce have prevented women from leaving battering relationships).
8. See Eber, supra note 1, at 897-99, 903-11 (noting historical reluctance to arrest and
prosecute wife beaters).
9. It is beyond the scope of this Article to explore the multitude of programs that have
been created in the past decade or the voluminous literature that has focused on every aspect
of domestic violence. See generally Eber, supra note 1, at 902-17 (discussing remedies available
to abused wives); Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute
Resolution on Women, 7 HARV. WOMEN'S LJ. 57, 63-72 (1984) (critiquing use of mediation as
mechanism for resolving domestic violence); Schneider, Equal Rights to Trialfor lomen: Sex
Bias in the Law of Self-Defense, 15 HARV. C.R.-C.L. L. REV. 623, 635-42 (1980) (arguing that
individualization of self-defense law will provide equal treatment for battered women raising
1986]
BA-rrERED WOMAN'S DEFENSE
13
One aspect of the current legal crisis surrounding domestic violence concerns female victims who strike back and kill their abusers. 10 Often, this resort to self-help results in prosecution of the
woman for homicide. American courts and criminal justice officials
have a difficult time dealing with these cases because they often involve sympathetic defendants who cannot fairly be blamed for their
conduct but who would have no defense if the law was strictly
applied. "I
One reason the resulting cases are difficult is that they do not fit
neatly into the categories of good and evil drawn by the criminal
law. Basically, intentional killing is bad unless it is justified. On occasion, the circumstances in which the battered woman killed clearly
indicate that the killing was justified in self-defense. In such cases,
the woman acted in response to an overt act of aggression by her
husband that created an objectively reasonable fear of imminent
death or serious bodily harm. 12 Other cases, however, are more difficult. Despite the defendant's long-term victimization, she most
likely would not have been killed or subjected to serious bodily injury on the occasion when she killed her abuser. Sometimes the
problem arises because the woman perceived actual or threatened
force to be deadly when, objectively, it was not.13 In other cases, the
self-defense claims); Waits, supra note 7, at 307-27 (favoring modifications to criminal justice
system's approach to wife abuse).
10. Domestic violence occurs in a large variety of permutations and combinations. This
Article is confined to situations involving females who have been abused by a male with whom
they, have a relationship, regardless of whether they are in fact married, living together, separated, or divorced. Thus, although this Article frequently uses terms such as husband, wife,
and spouse, the Article is not limited to violence occurring within marriages.
11. Ann Jones suggests that the problem of defending battered women who kill is fairly
new only because the women usually were not prosecuted until the middle of the 20th century. A. JoNEs, WOMEN WHO KILL 284 (1980). Accordingly, both the police and the courts
have pursued an unofficial policy of noninterference for most of the twentieth century. Id.
But cf Wallace v. State, 44 Tex. Grim. 300, 301, 70 S.W. 756, 756-57 (1902) (reviewing conviction of woman who killed husband after he beat and threatened her). In much less recent
history, women who killed their husbands were guilty of treason. See Schneider, supra note 9,
at 628, 629 n.33.
App. 3d 406, 411-12, 362 N.E.2d 9, 11-12 (1977)
12. See, e.g., People v. Reeves, 47 Ill.
(exonerating wife for shooting husband during severe beating); Commonwealth v. Watson,
494 Pa. 467, 472-74, 431 A.2d 949, 952 (1981) (determining that long history of physical
abuse and husband's attempt to kill wife immediately before she shot him established valid
self-defense). See ifa notes 103-05 and accompanying text (discussing use of deadly force in
self-defense).
13. See, e.g., Borders v. State, 433 So. 2d 1325, 1326 (Fla. Dist. Ct. App. 1983) (holding
that evidence of defendant's state of mind, relationship with husband, and husband's reputation for violence were necessary to determine reasonableness of defendant's perception of
danger); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981) (requiring expert testimony on
battered woman syndrome to prove threat of serious bodily harm); State v. Griffiths, 101
Idaho 163, 165, 610 P.2d 522, 524 (1980) (excluding psychiatric testimony to prove that defendant was acting out of fear when she shot her husband); People v. Adams, 102 Ill. App. 3d
1129, 1134-35. 430 N.E.2d 267, 272 (1981) (finding evidence of decedent's intoxication relevant to defendant's self-defense claim); State v. Seelke, 221 Kan. 672, 681, 561 P.2d 869, 875-
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defendant killed in response to verbal threats unaccompanied by
any contemporaneous overt physical aggression. 14 The most difficult cases arise when the defendant killed a sleeping or resting victim, 1 5 or when the defendant engaged in other behavior
6
inconsistent with self-defense.'
In the latter half of the 1970s, defense lawyers began to explore
avenues to best defend women charged with criminal homicide as a
result of striking back and killing their tormentors. The result was
the articulation of a theory ofjustification that has become known as
the "battered woman's defense."' 7 The defense is designed to persuade the fact-finder that the defendant's status as a battered wo76 (1977) (noting that evidence showing that defendant was brutally beaten before shooting
husband cast doubt on her intent to kill him); State v. Kelly, 97 NJ. 178, 202-05, 478 A.2d
364, 375-77 (1984) (holding that expert testimony on battered woman syndrome is relevant
to reasonableness of defendant's belief in imminent bodily harm); State v. Norris, 303 N.C.
526, 531-32, 279 S.E.2d 570, 573-74 (1981) (allowing defendant to establish imperfect selfdefense regardless of whether she was aggressor or used unnecessary force); State v. Thomas,
66 Ohio St. 2d 518, 521, 423 N.E.2d 137, 139 (1981) (concluding that jury can determine
reasonableness of defendant's fear without expert testimony on battered woman syndrome);
Commonwealth v Zenyuh, 307 Pa. Super. 253, 256, 453 A.2d 338, 340 (1982) (holding fact
that husband was not beating wife at time of shooting did not render wife's perception of
imminent physical danger unreasonable).
14. See, e.g., People v. Lucas, 160 Cal. App. 2d 305, 310, 324 P.2d 933, 936 (1958) (holding that verbal threats do not constitute imminent danger); People v. White, 90 Ill. App. 3d
1067, 1068-71, 414 N.E.2d 196, 198-200 (1980) (finding that defendant's belief was reasonable that use of deadly force was necessary after husband threatened to beat her); State v.
Fultz, 439 N.E.2d 659, 662 (Ind. Ct. App. 1982) (ruling that pointed finger and inaudible
threats do not substantiate reasonable basis for fear); State v. Lynch, 436 So. 2d 567, 568-69
(La. 1983) (justifying shooting after victim threatened to beat defendant); People v. Giacalone, 242 Mich. 16, 19-22, 217 N.W. 758, 759-60 (1982) (finding that defendant's perception of danger was reasonable after husband threatened to kill her and kept loaded gun next
to bed); People v. Tortes, 128 Misc. 2d 129, 131-35, 488 N.Y.S.2d 358, 360-63 (1985) (determining that husband's threat to kill defendant created reasonable fear of imminent danger).
15. E.g., People v. Emick, 103 A.D.2d 643, 653, 481 N.Y.S.2d 552, 558 (1984) (defendant killed sleeping husband following hours of abuse); People v. Powell, 102 Misc. 2d 775,
778, 424 N.Y.S.2d 626, 628-29 (1980) (defendant killed her ex-husband as he slept after husband had held her at gunpoint), aff'd 83 A.D.2d 719, 442 N.Y.S.2d 645 (1981); State v.
Leidholm, 334 N.W.2d 811, 814 (N.D. 1983) (defendant stabbed and killed sleeping husband
after night of abuse); State v. Allery, 101 Wash. 2d 591, 593, 682 P.2d 312, 313-14 (1984) (en
banc) (after finding her estranged husband in her home despite restraining order, defendant
killed husband as he rested due to prior threats to kill her); State v. Felton, 110 Wis. 2d 485,
492-93, 329 N.W.2d 161, 164-65 (1983) (defendant killed sleeping husband following history
of persistent abuse of herself and her children).
16. See, e.g., Ibn-Tamas v. United States, 407 A.2d 626, 630-31 (D.C. 1979) (pursuit of
retreating victim); People v. Minnis, 118 Ill.
App. 3d 345, 347, 455 N.E.2d 209, 211 (1983)
(defendant dismembered and hid husband's body after killing him); People v. White, 90 Ill.
App. 3d 1067, 1069, 414 N.E.2d 196, 198 (1980) (wife pursued retreating husband); State v.
Seelke, 221 Kan. 672, 673, 561 P.2d 869, 871 (1977) (after shooting three times, defendant
reloaded gun and shot again); State v. Martin, 666 S.W.2d 895, 897 (Mo. Ct. App. 1984)
(defendant hired "hit man" to kill her estranged husband); Buhrle v. State, 627 P.2d 1374,
1376 (Wyo. 1981) (defendant hid gun and gloves worn to fire gun after shooting husband
through partially open motel room door).
17. There is considerable disagreement as to the most appropriate name for the defense
theory. See infra notes 126-27 and accompanying text (discussing debate over correct characterization of defense).
1986]
BATrERED WOMAN'S DEFENSE
man renders reasonable her belief that self-help was justified.
Therefore, the defendant should be acquitted because she acted in
self-defense.
Sharp debate has surrounded the battered woman's defense ever
since the theory's inception. Much of the debate concerns the potential impact the defense may have on the ability of the criminal law
to deter battered women from engaging in unnecessary self-help or
from killing in revenge or retaliation. 18 Others worry that the defense cannot be confined to battered women and will lead to an un-
desirable extension of the justification of self-defense to anyone who
has a subjective belief that use of deadly defensive force is necessary. 19 The position taken in the debate depends, at least to some
extent, upon one's opinion whether the battered woman's defense is
simply a specialized application of the rules of self-defense, an extension of the principles of self-defense to particular circumstances
in which they otherwise would not be applicable, or an altogether
20
new hybrid defense.
18. See, e.g., Acker & Toch, Battered Women, Straw Men, and Expert Testimony: A Comment on
State v. Kelly, 21 GRIM. L. BULL. 125, 143 (1985) (arguing that battered woman's defense may
cause juries to consider woman's conduct legal); Rittenmeyer, OfBattered Wives, Self-Defense and
Double Standards ofJusttce, 9 J. CRUM. JUST. 389, 390 (1981) (asserting that battered woman's
defense exploits stereotypes and provides license to kill); Note, Does Wife Abuse Justify Homiade?, 24 WAYNE L. REV. 1705, 1715-16, 1725-26 (1978) (observing that acquittals of abused
wives may sanction retaliation and revenge). Cf. Eber, supra note 1, at 930, 930 n.190 (citing
commentators who predict that battered woman's defense will lead to "open season on
men"). See also State v. Thomas, 66 Ohio St. 2d 518, 521, 423 N.E.2d 137, 140 (1981) (excluding expert testimony on battered woman syndrome because, inter alia, it would tend to
stereotype defendant and would prejudice jury).
19. Rittenmeyer, supra note 18, at 389-90; Note, supra note 18, at 1716.
20. It has been suggested that the defense justifies the killing solely on the basis of the
victim's evil character. See Acker & Toch, supra note 18, at 146-51 (suggesting that evidence of
battered woman syndrome may lead juries to believe that killing was just). Others see the
defense as a "juxtaposition of insanity and self-defense." See Vaughn & Moore, The Battered
Spouse Defense in Kentucky, 10 N. Ky. L. REV. 399, 419 (1983).
Most commentators, however, emphatically deny that the defense is premised on the theory
that the defendant should be acquitted either because of the victim's abusive behavior or
because of the woman's abnormal behavior. See, e.g., E. BOCHNAK, WOMEN'S SELF-DEFENSE
CASES: THEORY AND PRAcriCE xvii (1981) (arguing that defense should not be construed as
vesting unique right to self-defense in battered women); Crocker, The Meaning of Equality for
Battered Women Who Kill Men in Self-Defense, 8 HARV. WOMEN'S L.J. 121, 144 (1985) (stating that
battered woman syndrome is properly treated as evidence of reasonableness of woman's actions); Comment, Self-Defense: Battered Woman Syndrome on Tial, 20 CAL. W.L. REV. 485, 495
(1984) (contending that battered woman syndrome is not separate defense, but instead is
probative of defendant's perception of danger); see also State v. Leidholm, 334 N.W.2d 811,
820 (N.D. 1983) (concluding that evidence of battered woman syndrome goes to reasonableness of defendant's perception of imminent bodily danger); State v. Allery, 101 Wash. 2d 591,
597, 682 P.2d 312, 316 (1984) (en banc) (admitting expert testimony on battered woman
syndrome because syndrome is central to claim that defendant's fear was reasonable). They
emphasize that the purpose of the defense is just the opposite. The jury must be persuaded
that the woman's perception that her life is in danger is reasonable. They argue that any kind
of impaired mental state defense is absolutely inconsistent with this approach.
One of the primary hurdles to winning a woman's self-defense case is that stereotypical
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Disagreement about the role of self-defense in the legal system
and in society as a whole further confounds the debate. Recent
years have witnessed demands for broader concepts of self-defense
by minority groups in general 2 1 and battered women in particular. 22
These demands have created considerable tension in the common
law approach to self-defense. Simultaneously, a small group of legal
academics have been ardently debating the entire structure of common law defenses on a variety of levels. Some scholars simply argue
that fair adjudication of affirmative defenses requires adoption of a
subjective standard, rather than the traditional objective standard. 23
Others have undertaken the task of systematizing the entire structure of common law defenses. 24 These scholars argue that it is essential to revive the common law distinction between justification
and excuse to achieve logic and coherence in the criminal law. The
wisdom and usefulness of this endeavor also has provoked substantial debate within the academic community. 2 5
female traits are often considered to be the antithesis of reasonable. The trier of fact may be
more willing to excuse the woman's conduct on grounds of insanity or diminished intellectual
capacity than self-defense. The result, however, is less desirable than an acquittal on the
ground of self-defense because the former may lead to involuntary civil commitment of the
defendant while the latter only mitigates the culpability to a lesser crime. Schneider, supra
note 9, at 638.
There is an inherent inconsistency in arguing that a person whose perceptions are altered
by a psychologically identifiable syndrome is nonetheless reasonable with respect to conduct
related to the syndrome. This Article proposes a solution to the dilemma that can lead to
complete acquittal for defendants whose perceptions are altered by an abusive relationship,
without demeaning all women as unreasonable and, consequently, inferior to men.
21. See, e.g., Cohen, Old Age as a CriminalDefense, 21 CRIM. L. BULL. 5, 6-7 (1985) (analyzing criminal liability of elderly offenders); Ford, In Defense of the Defenders: The Vietnam Vet Syndrome, 19 CRIM. L. BULL. 434, 434-36 (1983) (exploring post-traumatic stress syndrome
caused by military service in Vietnam); see also Donovan & Wildman, Is the Reasonable Man
Obsolete? A CriticalPerspecuve on Self-Defense and Provocation, 14 Loy. L.A.L. REV. 435, 436-37,
462 (1981) (arguing that reasonable man standard should be replaced by one that reflects
defendant's social reality).
22. See infra notes 148-55 and accompanying text (discussing feminists' efforts to modify
self-defense theory to meet needs of battered women).
23. See Donovan & Wildman, supra note 21, at 445 (advocating adoption of subjective
standard of self-defense that reflects defendant's social reality). See also infra notes 151-63 and
accompanying text (describing changes in "reasonable man" standard when applied to battered women).
24. See G. FLETCHER, RETHINKING CRIMINAL LAw §§ 10.1-10.5 (1978) (analyzing criminal
defenses from systematic perspective) [hereinafter G. FLETCHER, RETHINKING]; Robinson,
Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199, 202-03. 241-43 (1982)
(organizing criminal law defenses).
25.
See G. FLETCHER, RETHINKING, supra note 24, at 759-875 (analyzing criminal conduct
and accountability from conventional perspective of justification and excuse); Dressier, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY 421,
444-50 (1982) (maintaining that sensitivity to justification/excuse distinction will render provocation rules more consistent); Robinson, supra note 24, at 291 (proposing conceptual framework that distinguishes defenses by their effect on liability and punishment); NoteJustification:
The Impact of the Model Penal Code on Statutor ' Reform, 75 COLUM. L. REV. 914, 960-61 (1975)
(emphasizing distinctions between excuse and justification). But see Greenawalt, The Peplexing
Borders ofJnstifcation and Excuse, 84 COLUM. L. REV. 1897, 1898, 1915-19 (1984) (arguing that
1986]
BA-rTERED WOMAN'S DEFENSE
These two diverse strains of legal developments of the past decade-the very practical aspects of defending battered women who
kill and the highly theoretical debate about the entire structure of
the common law criminal defenses-have much to offer one another.2 6 Categorizing self-defense as ajustification rather than as an
excuse causes the defense to be defined in narrow terms. This is
detrimental to the needs of battered women defendants who kill in
nontraditional self-defense situations. Accommodation of the conflicting needs of society and battered women who kill can be
achieved by a system of criminal defenses based on a revived distinction between justification and excuse. Similarly, the very real demands battered women make on the criminal justice system
illustrate the need to reform and systematize the law of criminal
defenses.
This Article proposes that classifying self-defense as an excuse
will result in more justice for battered women who kill without
threatening important values promoted by the criminal law, such as
the suppression of private retaliation and the sanctity of human life.
The Article will explore first the concepts ofjustification and excuse.
Second, it will examine the historical development of the present
law of self-defense, the doctrine's general rules, and its classification
as a justification. The discussion then will turn to a description of
differences between excuse and justification are relevant to legal theory, but have no practical
application).
Legal scholars do not agree why it is important to distinguish between justification and
excuse. Paul Robinson cites concerns over liability of an actor who resists justified or excused
conduct and third party liability for assisting an actor as reasons for supporting the distinction
between justification and excuse. Robinson, supra note 24, at 273-85. Glanville Williams believes that the distinction is relevant only for questions of third party liability. Williams, The
Theory of Excuses 1982 CRIM. L. REv. 732, 732-33. George Fletcher believes that the justification/excuse distinction must be made in order to permit consideration of the defendant's
blameworthiness on an individualized or subjective basis. Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269, 1269-72 (1974) [hereinafter Fletcher, Individualization]. Peter Alldridge concludes that the distinction is useful in the appraisal of substantive
rules of law, including treatment of cumulatively provoked killings. Alldridge, The Coherence of
Defences, 1983 CRIM. L. REv. 665, 665-66.
This author disagrees with Williams' assertion that the distinction is relevant for practical
purposes only to the liability of third persons. See Williams, supra, at 732-33. To the contrary,
categorization of a defense as a justification or an excuse has significant effects on doctrinal
development. See Dressier, supra, at 444-50 (arguing that distinction between justification
and excuse lends consistency to criminal defenses). The distinction must be made in order to
consider the culpability of battered women and others who kill on an individualized basis.
Fletcher, Individualization,supra, at 47.
26. These two trends have not been isolated completely from one another. The feminist
lawyers who conceived the notion of women's self-defense incorporated Fletcher's theory of
individualization of excusing conditions. See Schneider, supra note 9, at 639-40 (demonstrating that Fletcher's theory is necessary to provide equal treatment for battered women claiming self-defense). Fletcher's theory was first articulated in Fletcher, Individualization,supra note
25. See infra note 163 and accompanying text (discussing feminists' application of Fletcher's
theory to battered women's cases).
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the battered woman's defense and will evaluate how it has fared
under the justification theory of self-defense. Finally, a case will be
made for creation of a new defense of excused self-defense that will
accommodate many battered women's cases excluded by the justification theory without sacrificing the basic goals of the criminal law.
I.
THE THEORY OF JUSTIFICATION
The prohibitory criminal law suffers from the infirmity of always
being overinclusive or underinclusive. 2 7 For example, the law can
prohibit undesirable intentional killings in one of two ways. The law
can either condemn all intentional homicides, including those that
are beneficial to society, or the law can identify all the specific circumstances that make intentional killings unacceptable to society.
Experience has shown this latter method is bound to be underinclusive. 2 8 In a society that highly values concepts of fair notice and
unambiguous statutory statements of criminal law, 2 9 the first option
must prevail in the contest between overinclusiveness and underinclusiveness. Consequently, we draw our criminal law in an overly
general fashion and compensate by permitting those who commit
criminal acts to defend themselves with claims of justification.3 0
Justification defenses identify objectively determinable external
circumstances that render otherwise criminal acts acceptable to society. 3 ' The conduct is paradigmatically wrong but, due to compelling circumstances and proper motive, the case is exceptional and
the conduct should not be punished. 32 The act is legal because the
circumstances invalidate the normal rules of criminal liability.3 3
Consequently, an exception must be made to the prohibitory criminal law.
Each justification defense is defined by a particular set of circum27. See Robinson, A Theory ofJustification: SocietalHarm as a Prerequisitefor CriminalLiability,
23 UCLA L. REV. 266, 272 (1975) (arguing that criminal codes cannot accurately prescribe
correct conduct in all situations but only can provide approximations of society's intuitive
judgments).
28. See State v. Bradbury, 136 Me. 347, 9 A.2d 657 (1939) (ruling that disposal of corpse
contrary to public decency is common law crime); Shaw v. Director of Public Prosecutions, 2
W.L.R. 897, 899, 2 All E.R. 446 (1961) (holding that conspiracy to corrupt public morals is
punishable as common law offense).
29. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (explaining that
rule of law entitles citizens to know what state commands and forbids).
30. See Robinson, supra note 27, at 272 (arguing that principle ofjustification is consistent with statutory criminal law because both limit blameworthiness to undesirable acts or
harmful consequences).
31. Dressier, supra note 25, at 438-46.
32. Fletcher, The Right Deedfor the Wrong Reasons: A Reply to Mr. Robinson, 23 UCLA L.
REV. 293, 310-11 (1975) (illustrating difference between correct conduct and conduct justified
by sufficient reason).
33. Note, supra note 25, at 916.
1986]
BATTERED WOMAN'S DEFENSE
stances under which it is appropriate to disregard the criminal law's
prohibition against acting. The law assumes that, when the circumstances that define the justification exist, the defendant has accomplished a socially desirable objective by committing the act or, at
least, has not harmed society.3 4 Thus, a determination that certain
circumstances create a justification constitutes a decision that any
person who commits the act under similar circumstances will be justified as well.3 5 Indeed, the criminal law desires and encourages justified conduct.3 6 In a situation of conflict, the justified act is the act
37
that should prevail.
Paul Robinson, a leading proponent of systematization of criminal
law defenses, has identified three categories of justification
defenses:3 8 (1) lesser evils; 3 9 (2) authorized use of defensive
34. See Alldridge, supra note 25, at 665 (stating that justification is based on act);
Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 954 (1985) (explaining that justification concerns legal permissibility of act that nominally violates law); Robinson, supra note
27, at 272-73 (arguing that an otherwise criminal act is justified whenever there is no societal
harm); Williams, supra note 25, at 735 (defining justification as defense that affirms social
desirability of act).
Fletcher argues that inclusion of merely permissible conduct (as distinguished from desirable conduct) in the category ofjustified conduct is inconsistent with the concept of the criminal law as a self-regulating set of conduct rules. Fletcher, supra, at 977-78. He notes that selfdefense is best defined as permissible rather than rightful conduct. Id. The implication is that
self-defense should be classified as an excuse.
35.
Note, PartiallyDetermined Imperfect Self-Defense: The Battered Wife Kills and Tells Why, 34
STAN. L. REV. 615, 631 (1982). Robinson believes that right or legally permissible conduct
that normally violates the criminal law is justified regardless of the actor's subjective intent. 2
P. ROBINSON, CRIMINAL LAW DEFENSES § 122 (1984). Thus, so long as the objectively identifiable circumstances make conduct justifiable, the actor should be acquitted even if the actor
was unaware of the justifying circumstances and committed the act for a "criminal" reason.
Id. See also Robinson, supra note 27, at 284-92 (stating that bad motive and lack of knowledge
should not preclude defense of justification). Fletcher disagrees. Although he believes that
justification should be judged on an objective rather than subjective standard, Fletcher would
not find an act justified unless the actor honestly and reasonably believed the necessary circumstances existed. Fletcher, supra note 32, at 295; see also G. FLETCHER, RETHINKING, supra
note 25, at 768 (maintaining that self-defense theory demands both objective standard of
wrongful aggression and subjective standard of justificatory intent); Greenawalt, supra note
25, at 1916 (arguing that subjective analysis of actor's intent is crucial forjustification both in
ordinary usage and legal theory).
This debate need not be resolved for purposes of this Article. The general difficulty in
battered women's cases is lack of proper circumstances rather than improper motive. Nonetheless, adoption of Robinson's view would increase the likelihood that women who acted
solely in retaliation for prior abuse may be acquitted. See P. ROBINSON, supra, § 122 (stating
that subjective motive is irrelevant in self-defense).
36. See Fletcher, supra note 34, at 954 (arguing that claims of justification involve legal
permissibility of acts nominally violating law); Greenawalt, supra note 25, at 1903 (stating that
central definitional characteristic ofjustification is that conduct is warranted, not wrongful);
Robinson, supra note 24, at 245 (noting that justifications send mixed message to community
by acquitting defendant despite harm that was inflicted).
37. Fletcher, supra note 34, at 954. The criminal law's encouragement ofjustified conduct extends to third parties, justifying intervention to prevent the greater harm. Greenawalt,
supra note 25, at 1900.
38.
P. ROBINSON, supra note 35, § 122; Robinson, supra note 24, at 202-03.
20
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force; 40 and (3) authorized use of aggressive force.4 1 All three categories are premised on a balancing notion. An act is justified if the
societal harm avoided outweighs the societal harm inflicted. Lesser
evils justifications involve relatively easy tasks of balancing the relative importance of the physical harm threatened with the physical
harm inflicted. 4 2 The weighing required for authorized use of defensive and aggressive force is more difficult. Usually, the physical
harms are equal-the taking of human lives. Robinson tips the balance in the defender's favor, however, by emphasizing the importance of weighing more than the comparative physical injuries.
Society also has an interest in the right to bodily integrity. When
society's interest in the right to bodily integrity and in protection
against physical injury are combined, they outweigh society's inter43
est in protecting the aggressor from physical harm.
Robinson identifies a uniform internal structure shared by all justification defenses. If certain triggering conditions occur, a necessary and proportionate response is permitted. 4 4 The necessity
requirement has two aspects. First, it requires immediacy of the
triggering conditions. 45 One can act only when there is no time to
use any method other than criminal conduct to protect or further
the interest at stake. 4 6 Second, the defender may act only to the
extent necessary to protect the threatened interest. 47 That is, if
nonharmful (i.e., noncriminal) or less harmful alternatives for avoid39. Robinson, supra note 24, at 214, 243 (including defenses traditionally categorized as
necessity and duress).
40. Id. at 214-15, 242 (including defenses traditionally categorized as defense of others,
self-defense, defense of property, and defense of premises).
41. Id. at 215-16, 243 (including parental authority, benevolent custodial authority, and
authority to prevent suicide). The authorized use of aggressive force also arises in the context
of public authority. Id. (including law enforcement, medical, military, and judicial authority).
The authorized use of aggressive force justification differs from other justification defenses
because it is limited to particular persons in special positions that protect and further legally
recognized interests against non-aggressors who threaten those interests. Id. at 215-16.
42. Id. at 214.
43. Id. This view is problematic because the victim also has a right of bodily integrity.
Only if one can assume that the aggressor has forfeited this right by his act of aggression does
the balancing rationale justify the defensive act. See Fletcher, supra note 32, at 305 (arguing
that moral forfeiture rationale for self-defense, premised on view that aggressor has lesser
interest in freedom from physical aggression than other persons, is problematic); see also infla
notes 202-06 and accompanying text (discussing moral forfeiture theory).
44. Id. at 216.
45. Id. at 217.
46. Robinson does not attempt to decide how immediate the threatened harm must be.
Id. at 217 n.70. It seems, however, that extension of the requirement of temporal necessity
beyond the Model Penal Code time frame of "the present occasion" would make Robinson's
lesser evils rationale dubious. See MODEL PENAL CODE § 3.04(1) (1985) (use of force in selfdefense is justified when used to protect self from present threat). The shorter, common law
standard of "imminency" may be required. See infra note 107 and accompanying text (discussing traditional requirement of imminency in self-defense theory).
47. Robinson, supra note 24, at 217-18.
19861
BArTERED WOMAN'S DEFENSE
ing the threatened harm are available, the infliction of criminal harm
is not necessary or justified. Both aspects of the necessity requirement further the same goal. If justified conduct is noncriminal because it constitutes the lesser evil, the availability of a noncriminal
alternative to avoiding the threatened harm defeats the claim. Because the justified conduct still causes a societal harm, it will be exculpated only if the greater harm was certain to occur and if no less
harmful alternative was available. Otherwise the justified conduct
will not be the lesser harm.
The proportionality requirement serves a similar function. Even
when the threatened harm is immediate and no less harmful alternatives are available, the maximum harm that may be inflicted cannot
exceed the threatened harm. 48 For example, deadly force never can
be used to protect against nondeadly force. If the harm inflicted
exceeds the maximum limit, it is not the lesser evil and cannot be
justified.
The criminal law tends to apply these standards in a stringent
manner in order to narrow the range of conduct that will be excepted from the normal prohibitions of the criminal law. 4 9 The
question is whether, on balance, the act was beneficial to society. A
court that broadens the concepts of necessity or proportionality
risks erroneous encouragement of harmful conduct. Moreover, because circumstances that are external to the actor define the justification, objective standards must prevail to determine whether the
elements exist.5 0 A mistake regarding the existence of the triggering condition must be fatal to a claim of justification because it
would destroy the balance of interests. Mistaken assessment of necessity or proportionality should lead to the same result. In either
case, the balance of relative harms is upset.5 ' To hold, as the battered woman's defense requires, that the actor's own experiences
and psychological makeup should be considered in determining
whether an act is justified is entirely inconsistent with the theory that
52
a justified act is either beneficial or not harmful to society.
II.
THE THEORY OF Excuse
Justified conduct is conduct that will be encouraged or, at least,
48. Id. at 218.
49. See Note, supra note 25, at 921 (arguing that confusion of policies underlying justification and excuse results in stringent, narrow standards ofjustified conduct).
50. Robinson, supra note 24, at 239 n.155.
51. Id. at 239-40.
52. See infra notes 171-84 and accompanying text (analyzing inconsistencies arising from
characterization of battered woman's defense as justification defense).
22
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tolerated under objectively identifiable circumstances that are not
exclusive to the defendant. 5 3 In contrast, excuse focuses on the actor's subjective perceptions. 54 An excused actor has committed a
harmful act that the criminal law seeks to prevent. 55 Unlike a justified act, the excused act did not avoid a greater societal harm or
further a greater societal interest. 56 The actor is excused despite
the harmful act because, due to internal or external pressure, she
was not morally blameworthy.5 7 Under the circumstances in which
the harmful act was committed, the actor did not have a fair opportunity to choose meaningfully whether to inflict the harm.5 8
Because Anglo-American law presumes free will, one who cannot
exercise a voluntary choice whether to obey or violate the criminal
law is not an appropriate subject of criminal punishment. 5 9 Consequently, excuses will apply only when the wrongful conduct is sub60
stantially more attributable to coercive influences than to free will.
Because the act was not voluntary, commission of the wrongful act is
53. See supra notes 31-33 and accompanying text (discussing doctrine of justification).
54. Dressier, supra note 25, at 437; Robinson, supra note 24, at 221. But see Greenawalt,
supra note 25, at 1915-18 (arguing that objective/subjective distinction between justification
and excuse is erroneous). Although Greenawalt appears to misperceive the basis on which
the objective/subjective distinction is normally made, he correctly points out that justifications have a subjective component and that many excuses have an objective component. Id at
1916. To be justified, an actor must subjectively believe that thejustificatory grounds exist.
Id. To be excused, the actor's failure to resist internal or external compulsion must be either
reasonable or understandable. Id. See supra note 35 and accompanying text (discussing disagreement concerning relevance of actor's subjective intent to justification defense).
55. See Greenawalt, supra note 25, at 1900 (explaining that need to prevent harmful acts
prohibits others from emulating excused actors' conduct). See also Fletcher, supra note 34, at
958, 960-62. Fletcher criticizes Anglo-American law because it does not require an ordered
inquiry into whether an act is justified or excused. Id. He argues that both logic and retributive theories of punishment create a need to determine whether or not the conduct in question was justified before asking whether the actor is excused for her wrongful conduct because
she was not blameworthy. Id. at 960-62. Fletcher suggests that Anglo-American law is able to
ignore this inquiry due to the law's traditional adherence to utilitarian theories of punishment.
Id. at 963-64. Nonetheless, it is widely recognized that punishment for utilitarian goals alone
is undesirable because moral blameworthiness is a prerequisite to imposition of criminal sanctions. See H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 58-62 (1968) (noting that both
retribution and utilitarianism presuppose moral blameworthiness). Thus, ordering the inquiry in the manner Fletcher advocates is desirable regardless of one's alignment as a utilitarian or a retributionist.
56. See supra notes 34-37 and accompanying text (discussing social desirability ofjustified
conduct).
57. Greenawalt, supra note 25, at 1900. Professor Greenawalt summarizes the "typical
features" of excuse as follows: "If an action is excused, the actor is relieved of blame but
others may not properly perform similar actions; interference with such actions is appropriate; and assistance of such actions is wrongful." Id.
58. Dressier, supra note 25, at 437; Donovan & Wildman, supra note 21, at 453; G.
FLETCHER, RETHINKING supra note 24, at 759, 811; Robinson, supra note 24, at 229, 274-75.
59. See H. PACKER, supra note 55, at 58-62 (discussing moral blameworthiness as prerequisite to criminal liability); Robinson, supra note 24, at 221 n.81 (arguing that imposition of
criminal sanction presupposes exercise of free will).
60. Fletcher, supra note 34, at 971.
1986]
BATrERED WOMAN'S DEFENSE
not determinative of the actor's moral blameworthiness. Therefore,
the excused actor cannot be punished solely on the basis of performing the act. 6 ' Instead, the relevant question is whether the particular actor can fairly be blamed for having succumbed to
62
overwhelming pressure.
Excuse theory allows the fact-finder to consider the whole individual and to evaluate whether, under the circumstances, her life experience enabled her to choose between criminal and noncriminal
conduct. If her inability to choose was reasonable or understandable, she is not culpable. The conclusion that she had no real choice
is not necessarily the equivalent of a determination that the defendant was mentally incompetent. 63 Rather, it is a recognition that each
person's life experiences are different and that consequently each
person's reasonable reaction to the same set of external circum64
stances will differ.
Although there is widespread agreement on the general theory of
excuse, there is no consensus regarding the proper elements of excuse. 65 The two leading advocates of revival of the distinction between justification and excuse each substantially expand the list of
common law excuses. Robinson identifies four situational categories in which lack of free choice renders the defendant nonculpable:
(1) acts that were not the product of the actor's determination; 66 (2)
defects in perception or knowledge of the physical nature of the
61.
Fletcher, Individualization,supra note 25, at 1271.
62. Id. at 1276. In contrast, the relevant policy question in a case of justification is
whether other people should commit the same act in the same situation. See supra notes 34-37
and accompanying text (discussing criminal law's encouragement of justified acts).
63. But see Note, supra note 25, at 916 (suggesting that excuse posits lack of culpability
based on individual's incapacity to commit offense). This erroneous conception that an actor
who is excused from a crime lacks criminal capacity, i.e., is somehow mentally inferior, may
account for some feminists' rejection of excuse as a defense for battered women. See supra
note 20 and infra notes 173-74 and accompanying text (discussing feminists' preference for
justification theory). It must be emphasized that the theory of excuses discussed here can and
should lead to complete acquittal rather than mitigation or other special consequences such
as involuntary civil commitment.
64. See Donovan &Wildman, supra note 21, at 466 (arguing that law's failure to recognize
relevancy of particular circumstances works injustice for accused individual and perpetuates
inequities that caused individual to act).
65. This confusion is partially due to the law's preference for justifications. Modem
codifications based on the Model Penal Code, for example, categorize most defenses asjustifications. Note, supra note 25, at 914-15. See MODEL PENAL CODE §§ 3.01-3.11 (Proposed Official Draft 1962) (listing justification defenses). Conversely, excuse defenses are limited to
duress and insanity. See id. § 2.09 (duress); id. § 4.01 (insanity).
66. Robinson, supra note 24, at 242. These defenses are usually treated as failure of
proof defenses, precluding liability because there is no actus reus. See W. LAFAVE & A. Scorr,
CRIMINAL LAw 177-81 (1972) (analyzing respective liabilities for voluntary and involuntary
acts).
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conduct or its consequences; 6 7 (3) ignorance of criminality or
wrongfulness of conduct; 68 and (4) impairment of control. 69
Fletcher, on the other hand, identifies four traditional defenses as
excuses: necessity, coercion or duress, insanity, and mistake of law
when the actor's ignorance of the law is beyond the actor's control. 70 Both authors agree that a reasonable but mistaken belief in
the existence of circumstances creating a justification may constitute
71
an excuse.
Similarly, both authors propose criteria to limit claims of excuse.
Robinson concludes that, to be excused, the actor must suffer from
a disability that causes an excusing condition. 7 2 A disability is a
mental condition of the actor at the time of the offense that lessens
the possibility that the harmful act was a product of the actor's
meaningful choice.73 The condition may be permanent or temporary, internal or external, but it must have observable symptoms
apart from the conduct in question. 4 The disability need not be a
mental abnormality. It may be caused simply by a lack of information when the actor cannot be blamed for failing to obtain the
75
information.
Fletcher calls for a similar limiting criteria that he terms a "limited
temporal distortion of the actor's character." 7 6 The authors' shared
disability requirement serves a variety of functions. The requirement limits the instances of excuse, provides evidence that the actor's free will actually was impaired, and shifts blame from the actor
to the disability. Additionally, if an actor is perceived to be abnormal or the victim of abnormal pressures, the actor is excepted from
the criminal law without undermining the law's general condemna67.
Robinson, supranote 24, at 242 (including insanity, intoxication, somnambulism, and
automatism).
68. Id. at 224, 243 (including mistake as to justification).
69. Id. at 243 (including duress).
70. Fletcher, Individualization,supra note 25, at 1269, 1271. The mistake of law category
includes mistakes as to justification. Id. Glanville Williams believes that both Robinson and
Fletcher err by failing to include absence of mens rea or negligence in their lists of excuses.
Williams, supra note 25, at 733-35 n.9. Williams defines two categories of excuses: (I) defenses that constitute a denial of the proscribed state of mind or negligence, and (2) defenses
that hold the defendant unaccountable because the defendant was not a free and responsible
agent. Id. at 735.
71. Fletcher, supra note 34, at 972-73; Robinson, supra note 24, at 239-40. Most American jurisdictions erroneously justify a reasonable, but mistaken, belief in the existence of circumstances creating the right to use self-defense. See infra notes 78 & 199 and accompanying
text.
72.
73.
74.
75.
Robinson, supra note 24, at 221.
Id. at 221, 222 n.82.
Id. at 221.
Id. at 224-25.
76.
G. FLETCHER, RETHINKING, supra note 24, at 802.
1986]
BATTERED WOMAN'S DEFENSE
25
77
tory and deterrent functions.
III.
THE LAW OF SELF-DEFENSE
A.
History
Today most American jurisdictions treat self-defense as ajustification.7 8 Because self-defense first entered the common law as an ex-
cuse, however, exploration of the history of the common law
doctrine of self-defense is instructive in revealing whether it corre-
sponds more closely to the rationale of justification or excuse.
Early English common law did not recognize the notion that a
killing in self-defense precluded culpability for homicide.7 9 All intentional killings were felonious, capital crimes. 80 Prohibition of
any form of self-help allowed early English rulers to control violence
and establish obedience to the rule of law. If self-help was unlawful,
reliance on governmental authority was necessary to protect one's
81
interest in personal safety.
Between the twelfth and sixteenth centuries, strict liability for in-
tentional killings began to disappear. 82 Homicides committed to
prevent crime, in war, or to carry out the lawful execution of a legal
punishment were deemed justified.8 3 Such intentional killings ad77. Robinson, supra note 24, at 226-27. An actor who performs a wrongful act expecting
to be excused will be disappointed. The expectation demonstrates an unacceptable element
of choice and planning that is likely to defeat the claim of excuse. See Fletcher, supra note 34,
at 970-71.
78. See MODEL PENAL CODE § 3.04 (1985) (classifying self-defense as a justification); see
also Note, supra note 25, at 914-15 n.2 (listing states that as of 1975 had adopted criminal
codes based upon the Model Penal Code). North Dakota, however, has rejected the Model
Penal Code approach. See N.D. CENr. CODE §§ 12.1-05-03, 12.1-05-08 (1976) (defining selfdefense as justification when use of force is necessary and proportionate and as excuse when
actor reasonably, but mistakenly, believed force was necessary and proportionate). See also
State v. Leidholm, 334 N.W.2d 811,814-16 (N.D. 1983) (applying statute); Note, CriminalLaw
- Self-Defense -Jury Instructions Given on Subjective Standardof Reasonableness in Self-Defense Do not
Require a Specific Instruction on Battered Woman Syndrome, 60 N.D.L. REV. 141, 145-46 (1984)
(analyzing statute). The North Dakota scheme incorporates Fletcher's and Robinson's criticism of the Model Penal Code's treatment of reasonable but mistaken beliefs in the existence
of justificatory circumstances. See supra note 71 and accompanying text (discussing Robinson's and Fletcher's consideration of reasonable but mistaken beliefs).
79. Donovan & Wildman, supra note 21, at 442.
80. Id. at 441.
81. See Brown, Self-Defence in Homicide From Strict Liability to Complete Exculpation, 1958
CRIM. L. REV. 583, 583-84 (suggesting that self-help is less available as government's power
expands).
82. On the development of the concept of mens rea in the early common law, see generally, Sayre, .Mens Rea, 45 HARV. L. REV. 974, 976-85 (1932).
83. 2 F. POLLOCK & F. MArTLAND, THE HISTORY OF ENGLISH LAW 478-79 (2d ed. 1898);
Donovan & Wildman, supra note 21, at 441. These early justifications would for the most part
fall under Robinson's third category ofjustifications-authorized use of aggressive force by
public authority. See supra note 41 (discussing Robinson's treatment of use of force by public
authority).
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mittedly violated the interests of the victim. 8 4 Nonetheless, under
the circumstances, the actor had a legal right to commit the act because it was beneficial to society. 8 5 The homicides justified by the
early common law benefitted society because they were committed
on behalf of the state itself against persons who threatened the
state's ability to control aggression against persons and property. It
was necessary to except those intentional killings from the proscriptions of the criminal law to consolidate respect for the rule of law.
Medieval England also saw the beginnings of the notion of excusable homicide. Self-defense first appeared in the common law as an
excuse rather than a justification. 8 6 One who commits a justifiable
homicide is acquitted of the crime because the objective external
circumstances that make the killing desirable require exception to
the prohibitory criminal law.8 7 On the other hand, an excusable act
of homicide constituted a crime because an unjustified criminal act
invaded a legally protected interest of the victim. Because of surrounding circumstances that affect the defendant in a unique fashion, however, the defendant is not culpable because he has no free
choice whether or not to comply with the criminal law.8 8 A medieval
English defendant who acted in self-defense was probably presumed
to have had no real choice whether to act because of the natural
human instinct for self-preservation-an instinct inconsistent with
the need for social control.8 9 Precisely because self-help was contrary to societal needs, in medieval England an excused homicide
was merely pardonable. Although the defendant who acted in selfdefense was saved from capital punishment, his property was still
subject to forfeiture 90 and he suffered other civil disabilities until
the royal pardon was granted. 91
As time passed, pardons became increasingly ministerial until, by
the early nineteenth century, self-defense was regarded as a complete excuse in England. 9 2 As the practical difference betweenjusti84. See Alldridge, supra note 25, at 667 (discussing rule permitting taking of innocent life
to maximize societal survival rate).
85. Id.
86. Donovan & Wildman, supra note 21, at 441; 2 F. POLLOCK & F. MArrLAND, supra note
83, at 478-79.
87. See supra notes 27-37 and accompanying text (discussing justification defense theory).
88. See supra notes 53-64 and accompanying text (analyzing defense of excuse).
89. Donovan & Wildman, supra note 21, at 442.
90.
See G. FLETCHER, RETHINKING, supra note 24, at 343-44 (noting that early self-defense
defendants were subject to forfeiture of instruments of crime).
91.
See 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 182 (1769) (stating
that English law considered excusable homicide deserving of punishment); Robinson, supia
note 27, at 275 (noting that defendants claiming self-defense were required to seek pardon to
avoid punishment).
92. Donovan & Wildman, supra note 21, at 443.
19861
BATrERED WOMAN'S DEFENSE
fication and excuse disappeared, other distinctions between the two
categories of defenses also began to fade. Late in the nineteenth
century, at least one legal scholar declared that the categories no
longer bore any legal consequence in English law. 93 In the United
States, the technical distinctions between justification and excuse
also faded although the labels continued to bear some rhetorical
significance. 9 4 As codification of the criminal law progressed in the
mid-twentieth century, many state codes categorized self-defense as
a justification rather than as an excuse. 9 5
The theoretical implications are clear. One has a legal right to kill
in self-defense. Moreover, such intentional homicides are encouraged because they are not harmful to society and may be beneficial. Yet the criminal law's general goal of reducing the amount of
violence in society remains the same. 9 6 To harmonize the principle
that killings in self-defense are justified with the principle that
human life is the highest value protected by the law, the range of
defensive conduct that will be justified must be narrowly circumscribed. The result is a legal environment that is inhospitable to the
battered woman's defense.
B.
The Modern Law of Self-Defense
The criminal law normally penalizes those who intentionally inflict or attempt to inflict physical harm.9 7 There is general agreement, however, that intentional infliction of physical harm upon
another is not culpable when it is inflicted in self-defense. Thus, a
person who kills in self-defense will be acquitted of homicide.
Although exceptions persist, most American jurisdictions define
self-defense in a similar manner, with a few common variations. 98
The definition of self-defense is designed to permit a person to use
self-help against an unlawful aggressor when there is no opportu93. 3J. STEPHENS, HISTORY OF THE CRIMINAL LAW OF ENGLAND 1, 56 (1883).
94. Note, supra note 25, at 920.
95. See supra note 78 (discussing influence on state statutes of Model Penal Code's classification of self-defense as justification).
96. See Note, supra note 35, at 627 (noting society's dual interests in preventing vigilante
justice while permitting some self-defense).
97. Such conduct will be defined as murder, manslaughter, attempted murder, or some
form of assault and battery depending upon the particular accused's state of mind and
whether he succeeded in inflicting the intended harm. W. LAFAVE & A. Sco-rr, supra note 66,
at 196.
98. A complete review or synthesis of the law of self-defense in each American jurisdiction is beyond the scope of this Article. For the most part, the author has relied upon LaFave
and Scott's well-regarded textbook and on the Model Penal Code as representing the law of
the majority of American jurisdictions. See W. LAFAVE & A. Sco-r, supra note 66, § 5.7;
MODEL PENAL CODE § 3.04 (1985) (discussing general law of self-defense).
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nity to resort to the criminal justice system for protection. 9 9 Not
surprisingly, the elements of self-defense correspond to the components of all justification defenses that Robinson has identified. 0 0
An intentional killing will be justified' 0 ' when the following requirements are met:
1. An actor can only defend herself against what she reasonably
02
believes is unlawful force.1
2. The amount of force must be proportionate to the threatened
force. 10 3 Deadly force 10 4 may not be used unless the actor reasonably believes that she is protecting herself against infliction of
death or serious bodily harm. 10 5
3. The actor must reasonably believe that it is necessary to use
10 6
force to prevent the threatened harm.
4. The actor must reasonably believe that the adversary's
99. W. LAFAVE & A. Sco-r, supra note 66, at 391.
100. See supra notes 44-48 and accompanying text (discussing Robinson's necessity and
proportionality requirements).
101. See W. LAFAvE & A. ScoTr, supra note 66, at 391 (discussing self-defense as justification defense); MODEL PENAL CODE § 3.04 (1985) (defining self-defense as justifiable use of
force).
102. W. LAFAVE & A. Scorr, supra note 66, at 392. Unlawful force can be either a crime or
a tort. Id. Generally, the actor may not be the initial aggressor. Id. at 394-95. There are two
situations, however, when the actor may initiate the use of force. Id. at 395. First, if the
actor's use of nondeadly force is met with a deadly response, the actor may defend himself
justifiably. Id. Second, if the actor's good-faith attempts to withdraw from the encounter are
thwarted by his adversary, the actor's right to self-defense is restored. Id. See also Note, supra
note 35, at 625 n.458 (discussing some potentially troublesome broader definitions of unlawful force).
Unlawful aggression against the actor is Robinson's "triggering condition." See supra note
44 and accompanying text (discussing appropriate response when triggering condition
occurs).
103. W. LAFAVE & A. Scorr, supra note 66, at 393-94. This corresponds to Robinson's
proportionality requirement. See supra notes 44-47 and accompanying text (discussing Robinson's proportionality requirement).
104. W. LAFAVE & A. ScoTr, supra note 66, at 392. Deadly force is defined as force used
with the intent to inflict death or serious bodily harm or force used with knowledge of its
capability to inflict death or serious bodily harm. Id.
105. Id. at 393. A few jurisdictions require equal force as opposed to proportionate force.
Id. This view would preclude use of a weapon against an unarmed assailant regardless of the
correctness of the defendant's belief that the unarmed assailant could inflict death or serious
bodily harm. Id. The majority rule, however, allows reasonable proportionate force even
when it is "unequal." Id. See also id. at 392 (noting that mere threats of death or serious
bodily harm do not constitute use of deadly force). The Model Penal Code allows the use of
deadly force against "sexual intercourse compelled by force or threat" regardless of the degree of force.
MODEL PENAL CODE
§ 3.04(2)(b) (1985).
106. W. LAFAVE & A. ScoTr, supra note 66, at 393. Under this view, a reasonable, but
mistaken, belief in necessity does not defeat the defense, but one who makes an unreasonable
mistake Will not have a defense. The Model Penal Code is more forgiving. It requires only
that the actor have a good faith belief that the force is necessary. The belief need not be
reasonable. See MODEL PENAL CODE § 3.04(2) (1985) (providing that "a person employing
protective force may estimate the necessity thereof under the circumstances as he believes
them to be when the force is used"). See generally supra notes 65-77 and accompanying text
(discussing excuse defense and reasonable belief requirement).
Self-defense need not be the actor's sole motive. A person acting in proper self-defense
1986]
BATTERED WOMAN'S DEFENSE
07
threatened use of force is imminent. 1
A determination that an intentional killing is justified because it
was committed in self-defense carries certain doctrinal implications.
Anyone who intentionally kills another person under the same circumstances will be justified as well. The aggressor/victim has no
right to defend against the justified actor's defensive act or against
the equally justified acts of third parties who may come to the defender's aid. Any person who confronts the same circumstances as a
person acquitted on grounds of self-defense has a legal right to kill;
08
indeed, the law encourages her to do so.1
Because the ramifications of an acquittal on grounds of self-defense extend far beyond the particular case under adjudication, the
law of self-defense is designed to ensure as closely as possible that
does not lose the defense by having an additional, less admirable motive. W. LAFAVE & A.
Scorr, supra note 66, at 394.
The question of necessity should not be confused with the issue of retreat. A significant
minority of American jurisdictions require the defender to retreat before using deadly force
when he knows he can avoid harm and achieve complete safety by running away from his
adversary. Id. at 395-96. Retreat from one's home or place of business, however, may not be
required. See, e.g., People v. McGrandy, 9 Mich. App. 187, 189, 156 N.W.2d 48, 49 (1967)
(holding that battered wife was not required to retreat from own home to claim valid selfdefense); Commonwealth v. Johnston, 438 Pa. 485, 489, 263 A.2d 376, 379 (1970) (ruling
that defender may stand ground and meet deadly force with deadly force when threatened in
own home by nonmember of family). But cf Commonwealth v. Schaeffer, 367 Mass. 508, 511,
326 N.E.2d 880, 883 (1975) (holding that, although defender does not have unlimited right to
use deadly force without attempting to retreat from own home, location of assault is valid
consideration in self-defense). Others require retreat from one's home only when the adversary is a co-occupant. See, e.g., State v. Pontery, 19 NJ. 457, 475, 117 A.2d 473, 482 (1955)
(holding that common law retreat rule is inapplicable when adversary is co-occupant); Commonwealth v. Walker, 447 Pa. 146, 150, 288 A.2d 741, 743 (1972) (ruling that defender must
retreat if attacker is co-resident). Cf Commonwealth v. Eberle, 474 Pa. 548, 557, 379 A.2d
90, 94 (1977) (requiring no duty to retreat when attacker was frequent guest, but not coresident). Because most battered woman's defense cases occur in the home, the retreat doctrine is rarely relevant. Even when it is, the requirement that the defendant must know she
can retreat in complete safety limits the doctrine's influence on case outcome. When retreat is
not required, defendant is permitted to stand her ground and respond to an imminent attack
with deadly force if running away is the only alternative. See generally Note, Limits on the Use of
Defensive Force to Prevent IntramaritalAssaults,10 RuT.-CAM. L. REV. 643, 653-57 (1979) (discuss-
ing application of retreat rule to domestic abuse cases).
107. W. LAFAVE & A. ScoTr, supra note 66, at 394. At common law, the imminency requirement is usually interpreted to require a threat of immediate harm. The Model Penal
Code expands the time frame, allowing use of force to protect against an unlawful attack "on
the present occasion." MODEL PENAL CODE § 3.04(1). LaFave & Scott explain that the imminency requirement rules out the possibility that the defendant may be able to thwart the attack
using nonviolent means. Id.
The imminency requirement is problematic in battered woman's defense cases when past
behavior indicates that the harm will occur in the future and effective avoidance of the harm
may be impossible. See Note, supra note 106, at 651-53 (recommending adoption of a standard of self-defense that does not require imminency).
Together, the imminency and necessity requirements constitute Robinson's necessity condition. See supra notes 44-47 and accompanying text (discussing Robinson's theory of
necessity).
108. See supa notes 31-37 and accompanying text (discussing theoretical basis ofjustification defenses).
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the justificatory grounds exist.109 To be justified, the defensive act
must cause less societal harm than the harm that the victim/aggressor threatened."10 The requirement that the victim's
threatened aggression be unlawful permits the devaluation of the
aggressor's life and interest in bodily integrity relative to the defender's. 11' If the victim's aggression was not unlawful, the victim's
interest in life cannot be devalued. The comparative harms will be
equal and the defensive act will not bejustified." 2 Thus, a killing in
self-defense by an actor who mistakenly believes that the threatened
aggression is unlawful should not be a justified act. ' 1 Expanding
the prerequisites of self-defense to allow reasonable mistakes regarding the unlawfulness of aggressive force increases the risk that
taking of innocent lives will be encouraged.
Even when the triggering condition for self-defense-unlawful aggression-is present, the common law requirements of proportionality, necessity, and imminence must be met to achieve the proper
balance of harm.' 14 The amount of force employed by the defender
must be proportionate to the threatened aggressive force. If deadly
force is used to defend against nondeadly force, the harm inflicted
by the actor (death or serious bodily harm) will be greater than the
harm avoided (less than serious bodily harm). Even if deadly force
is proportionate, its use must be necessary. Otherwise, unlawful
conduct will only bejustified when it involves the lesser harm of two
harmful choices. If countering with nondeadly force or with no
force at all avoids the threatened harm, defensive use of deadly
force is no longer the lesser evil of only two choices. Alternatives
involving still less societal harm are available. Indeed, in many cases
it may have been possible to avoid unlawful conduct altogether.
The same consideration underlies the imminency requirement. The
109. See Marcus, Conjugal Violence: The Law of Force and the Force of Law, 69 CALIF. L. REV.
1657, 1704 (1981) (stating that theory of self-defense is designed to ensure that homicide was
unavoidable).
110. See supra notes 38-43 and accompanying text (discussing balance of societal interests
in justification).
111. See supra note 43 and accompanying text (arguing that combination of right of bodily
integrity and protection against physical injury outweigh society's interest in protecting agressor). Rationales that have been offered to support this devaluation are discussed infra notes
202-06 and accompanying text.
112. Cf. Fletcher, supra note 34, at 972-73 (arguing that mere belief, no matter how reasonable, cannot justify homicide).
113. Fletcher and Robinson both agree that such cases are not justified. Instead, they
should be treated as excuses unless the actor is culpable for making the mistake, in which case
liability should be imposed. See supra note 71 and accompanying text (discussing Robinson's
and Fletcher's views on mistake and excuse theory). Compare MODEL PENAL CODE § 3.04(2)
(1985) (justifying use of force if actor honestly believes in unlawfulness of force).
114. See supra notes 44-47 and notes 103-07 and accompanying text (discussing Robinson's theory ofjustification and elements of self-defense).
19861
BATTERED WOMAN'S DEFENSE
resort to deadly force must be a last resort; there must be no time
left to summon police or other aid, or for the aggressor to change
his mind.' 1 5 If the aggression has already occurred, the force will be
vengeful or punitive rather than defensive and cannot be
justified.'16
As in unlawful force, the closer the courts adhere to the requirements of proportionality, necessity, and immediacy, the greater the
certainty that some harm was sure to occur and that the defensive
conduct constituted the least harmful alternative. Expanding these
requirements risks more than deviation from the theoretical basis of
justification. It means that self-help will be encouraged and condoned as an individual's legal right in a greater variety of circumstances. This, in turn, increases the risk that mistakes will be made
in evaluating whether circumstances give rise to a legal right to kill
in self-defense and that more lives will be taken unnecessarily.
Most American jurisdictions treat a reasonable but mistaken belief
that the circumstances necessary for self-defense existed as justified
self-defense. 17 Acceptance of a reasonable but mistaken belief that
justificatory circumstances existed appears to be based on the theory expressed in Justice Holmes' oft-quoted statement that
"[d]etached reflection cannot be demanded in the presence of an
uplifted knife." 118 Moreover, because even hindsight does not always reveal what options may have been available or whether the
aggressor/victim actually would have carried out his threat, requiring absolute accuracy in assessing whether the defensive force was
proportionate, necessary, and immediate is impossible. This rationale, however, is more consistent with excuse theory than justification
theory. Because the threat creates coercive pressure that may limit
freedom of choice, excuse analysis is appropriate." 19 Justification
cannot be the proper theoretical basis for the acquittal if there was
no actual imminent unlawful deadly aggression.
Although there is nearly universal agreement that reasonable but
mistaken beliefs are acceptable bases for defensive action, there is
disagreement among American jurisdictions as to whether an objective' 20 or subjective' 2' standard of reasonableness should be
115. See W. LAFAVE & A. Scorr, supra note 66, at 394 (discussing criminal law's discouragement of resort to self-help).
116. Note, supia note 25, at 931.
117. See supra notes 102-07 and accompanying text.
118. Brown v. United States, 256 U.S. 335, 343 (1921).
119. Donovan & Wildman, supra note 2 1, at 453. See supra note 71 and accompanying text.
120. Would an average person of ordinary sensibilities have believed the force was proportionate, necessary, and immediate under the circumstances? See State v. Kelly, 97 N.J. 178,
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used. 122 Without resolving that issue, it is clear from the discussion
above that justifying even reasonably mistaken defensive conduct
under an objective standard is troublesome. Subjective standards
inevitably increase the number of mistakes that will be held reasonable and therefore increase the extent of killings that will be justified
on grounds of self-defense despite their incompatibility with the
theoretical basis of justification. This creates difficulties because,
although it is harmful, such conduct is nonetheless deemed justified
under current law. Therefore, future actors confronted with the
same circumstances have a legal right to do the exact same thing.
The result may be to encourage self-help killings when the victim
may be innocent or there may have been less harmful alternatives,
perhaps including the preferred possibility of resort to the lawful
processes of the criminal justice system.
To a large extent, the fear that accepting the battered woman's
defense as justified self-defense may be interpreted as granting victims of domestic abuse a license to kill their abusers arises because
the defense requires use of a subjective standard of reasonableness
and a substantial expansion of traditional concepts of proportionality, necessity, and immediacy. Although the concern that the de23
fense will be interpreted as a license to kill may not be legitimate,1
the pressure imposed by the battered woman's defense on the theoretical underpinnings ofjustified self-defense is very real.' 24 If selfdefense was classified as an excuse, the battered woman's defense
198, 478 A.2d 364, 374 (1984) (applying objective standard of reasonableness in battered
woman's defense case).
121. Would an average person in defendant's circumstances have believed the force was
proportionate, necessary, and immediate? The relevant circumstances may or may not include attributes peculiar to defendant. See State v. Leidholm, 334 N.W.2d 811, 817 (N.D.
1983) (applying subjective standard of reasonableness in battered woman's defense case).
The breadth of "circumstances" the fact-finder is permitted to consider will affect the outcome under either an objective or a subjective test. Cf. Kelman, Interpretive Construction in the
Substantive Criminal Law, 33 STAN. L. REV. 591, 596 (1981) (noting differences in law when
defendants are acknowledged as unique persons). Additionally, even when relevant circumstances are interpreted broadly enough to include individual characteristics of the defendant,
the significance of those characteristics may not be recognized. Crocker, supra note 20, at 125
n.1l.
Fletcher's theory of individualization, as applied by feminists to self-defense, is nothing
more than a subjective standard of reasonableness. See infra note 163 and accompanying text
(discussing feminists' application of Fletcher's individualization theory).
122. Eber, supra note 1, at 919 n.151; Note, supra note 78, at 146 n.37. See Donovan &
Wildman, supra note 21, at 445 (noting that trend is toward increasingly subjective standards).
123. But see Note, supra note 35, at 627-28 n.55 (describing reported incidents of-disquieting indications of vigilantism" in battered women's cases).
124. See Marcus, supra note 109, at 1732-33 (arguing that modification of immediacy standards for battered women's cases would undermine deterrent function of homicide law and
raise significant equal protection problems); Note, supra note 35, at 627-30 (arguing that desire to acquit battered women who kill despite their failure to meet requirements of selfdefense undermines rule of law).
1986]
BATTERED WOMAN'S DEFENSE
could be incorporated easily into the law of self-defense without
raising these concerns.
IV.
THE BATTERED WOMAN'S DEFENSE
Defining the battered woman's defense is not an easy task. The
literature is full of claims that the defense is misconceived. 12 5 Yet,
even those authors who bemoan the misconceptions have difficulty
arriving at a cogent definition of the term. Indeed, use of the term
at all is widely disparaged. A number of writers repeatedly emphasize that the theory should be denominated "women's self-defense,"' 12 6 perhaps to dispel the notion that there is a special
exception to the normal rules of self-defense for battered women.
Nonetheless, courts and the media relentlessly choose to adhere to
12 7
the battered woman's defense phraseology.
One explanation for some of the confusion between "self-defense," "women's self-defense," and "battered woman's defense"
may lie in the defense's historical development. The best descrip125. See E. BOCHNAK, supra note 20, at xvii (stating that battered woman's defense often
confuses jurors); see also Comment, supra note 20, at 495 (arguing that battered woman's defense is not clearly separate defense).
126. E. BOCHNAK, supra note 20, at xvii; Crocker, supra note 20, at 122; Schneider, supra
note 9, at 623. Those who insist on use of the term "women's self-defense" also insist that
the battered woman's defense is no different than any other case of self-defense. See supra
notes 17-20 and accompanying text (discussing debate over propriety of battered woman's
defense). Crocker, however, argues that the question is simply one of woman's self-defense,
but concedes that battered women respond to threats of violence from their batterer differently than other women respond because battered women become attuned to violence. See
Crocker, supra note 20, at 126-27.
The equal protection clause of the fourteenth amendment may require inclusion of the
battered woman's defense within the more generally applicable principle of self-defense.
Compare Rittenmeyer, supra note 18, at 389 (asserting that battered woman's defense violates
equal protection rights of male homicide defendants) with Buda & Butler, The Battered Wife
Syndrome: A Backdoor Assault on Domestic Violence, 23 J. FAM. L. 359, 378-81 (1985) (concluding
that battered woman's defense should be included in general self-defense law in order to fend
off equal protection challenges).
This author's choice of the term battered woman's defense is not intended as a rejection of
the view that the defense is related to other cases of self-defense.
127. This Article uses the term battered woman's defense primarily because the discussion is limited to battered women who kill their abusers. The term woman's self-defense, on
the other hand, incorporates all women charged with homicide who claim self-defense regardless of the identity of their victims. As such, the label woman's self-defense seems no less
misleading than the label battered woman's defense. One commentator has argued that the
term battered woman's defense leads to the mistaken notion that the defendant's act was
justified solely because she was a victim of domestic violence. Rittenmeyer, supra note 18, at
389. See supra note 18 and accompanying text (noting concern that criminal justice system
may not deter battered women from engaging in unnecessary force or retaliation). Similarly,
the term woman's self-defense leads to the intolerable conclusion that the rules of self-defense law vary depending on one's gender. This is inconsistent with the notion of a nonsexist
society. Moreover, if indeed the traditional notion of self-defense is inadequate for our pluralistic society, it is not only women or battered women who will suffer. See Donovan &
Wildman, supra note 21, at 436-39 (arguing that other minority groups with distinct socioeconomic backgrounds also suffer under current legal system).
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tions of the battered woman's defense are by feminist lawyers who
based their strategy on lessons learned while representing women
who defended themselves against male aggression under circumstances that fell outside the setting of traditional self-defense. 128
Self-defense rules were developed to acquit a man who kills to protect himself or his family against a threatened attack from a man of
similar size and strength with whom the defender usually has had
only a single encounter. 129 Rules requiring like force, imminency of
the threatened harm, consideration of only the circumstances surrounding the single encounter, and use of an objective reasonable
man standard are more than adequate in such circumstances. Women, however, usually use deadly force to protect themselves under
very different circumstances. Usually their male victims are larger
and stronger and are not strangers.13 0 The woman's fear of the man
will be influenced by her knowledge of his character and reputation
for violence.' 3 1 Rules requiring like force, imminency, consideration of only the circumstances immediately surrounding the killing,
and use of an objective reasonable man standard necessarily defeat
13 2
the woman's claim.
The first successes for the notion of women's self-defense were
not battered women's cases. In the early 1970s, feminists rallied to
support the defense of Joan Little, a prisoner in a North Carolina
jail who stabbed and killed a male guard. 33 Little claimed that she
34
stabbed the unarmed guard because he threatened to rape her.'
Ms. Little was acquitted on the theory of self-defense despite the
128. To some extent, these early cases involved an attack on the once universal use of the
gender specific "reasonable man" standard even when the person whose conduct was being
judged was a woman. Today, standards of reasonableness usually are stated in either sexneutral terms (i.e. reasonable person) or sex-specific terms based on the gender of the defendant. See Donovan & Wildman, supra note 21, at 439 (arguing that use of any abstract
standard of reasonableness-whether sex neutral or sex specific-is unfair).
129. See Schneider, supra note 9, at 635 (analyzing impact of social mores on availability of
self-defense); Note, supra note 35, at 619 (noting that traditional self-defense focuses on sudden single episode of attack and defense).
130. E.g., State v. Wanrow, 88 Wash. 2d 221, 238-42, 559 P.2d 548, 558-59 (1977) (discussing physical handicaps women experience in efforts to repel male attackers).
131. E.g., id. at 237-38, 559 P.2d at 557 (asserting that woman's prior knowledge of attacker's aggressive reputation is crucial to determining reasonable degree of force used to
repel attack).
132. See supra notes 103-07 and accompanying text (discussing traditional self-defense
rules). The strictness with which any of these requirements are applied is dependent on the
jurisdiction. To some extent the problems posed by like force requirements and rules limiting the scope of surrounding circumstances have been overblown. Most jurisdictions have
not had such rules for many years. See supra note 105 (noting relaxation of traditional selfdefense requirements).
133. Walker, Thyfault & Browne, Beyond theJuror's Ken: Battered Women, 7 VT. L. Rev. 1, 4
(1982).
134. Id.
1986]
BATTERED WOMAN'S DEFENSE
arguable absence of equal force.' 3 5
Two years later, Inez Garcia was acquitted by a jury after her second trial on homicide charges. 136 She claimed self-defense. Garcia
37
was physically and sexually assaulted by two male acquaintances.
Before leaving the scene, the men threatened to return and rape
Garcia again.' 38 She took her shotgun and went to search for her
assailants.' 3 9 Several hours later she found one of the men on a
street and shot and killed him. 140 Judged by an objective standard
of reasonableness, Garcia's motive appeared to be vengeance rather
than self-defense. The jury, however, was permitted to consider the
defendant's ethnic background, her rape, and the men's threat to
repeat their attack when determining whether she reasonably believed that the use of deadly force was necessary to avoid an immi141
nent threat of serious bodily harm.
Soon acquittals of women, including battered women, who
pleaded self-defense became common in many jurisdictions.142 The
most important appellate victory for the feminist advocates of women's self-defense was in a case that did not involve a battered woman. In 1977, the Washington Supreme Court reversed Yvonne
Wanrow's second degree murder conviction in a decision holding
that use of the reasonable man objective standard of self-defense
violated Wanrow's right to equal protection of the law.' 43 Wanrow
shot an intoxicated, unarmed man whom she knew had a reputation
144
for violence when he approached her in a threatening manner.
At the time, Wanrow, who was five-foot-four, had a broken leg and
135. Id For discussion of the notion of equal force in the traditional law of self-defense,
see supra notes 103-05 and accompanying text. The Model Penal Code specifically permits
use of deadly force to defend against forcible rape. MODEL PENAL CODE § 3.04 (1985).
136. Walker, Thyfault & Browne, supra note 133, at 4. At her first trial, Garcia pled the
insanity defense, but was convicted. Id. On appeal, a second trial was ordered due to a faulty
jury instruction on proof beyond a reasonable doubt. People v. Garcia, 54 Cal. App. 3d. 61,
65-66, 54 Cal. Rptr. 275, 279-80 (1976).
137. Walker, Thyfault & Browne, supra note 133, at 4.
138. Id.
139. Id.
140. Id.
141. Id.
142.
See generally E. BOCHNAK, supra note 20, App. G (listing early battered women's cases).
Whether these verdicts reflected jury determinations that the homicides were in fact justifiable
is unknown. There is always the possibility that the jury exercised its mercy function. Nonetheless, the fact remains that the verdicts reflected relative success in very difficult cases. On
the problem of jury nullification in battered women's cases and the underlying tensions it
creates, see Note, supra note 35, at 616 n.6, 627-30. See also E. BOCHNAK, supra note 20, at 2
n.3 (noting acquittals of battered women on other theories, such as temporary insanity and
insufficient evidence, and reductions in charges with no imprisonment).
143. State v. Wanrow, 88 Wash. 2d 221, 240-41, 559 P.2d 548, 559 (1977).
144. Id. at 226, 559 P.2d at 550-51.
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was using a crutch. 145 Recognizing that Wanrow's fear and perception of danger was affected by her status as a woman, the court held
that use of the reasonable man standard in the jury instructions was
improper because it deprived Wanrow of the right to have the jury
consider her conduct in light of her own perceptions. 146 The court
directed that the jury on retrial should be instructed to apply a sub47
jective, sex-specific standard of reasonableness.'
Little, Garcia, and Wanrow involved situations in which an objectively reasonable observer of the confrontation would not have perceived that the aggressor threatened imminent death or serious
bodily harm to the defendant nor have believed that defensive use
of deadly force was the only alternative available. Application of
traditional rules of self-defense inevitably would lead to a murder
conviction. Defense counsel were able to persuade the courts that
their mistaken beliefs that the circumstances justified self-help were
subjectively reasonable given the particular experiences and perceptions of the defendants.
The same problems occur in battered women's cases, often in
more extreme forms.'
48
In the late 1970s, feminist lawyers began to
outline a defense strategy for battered women who kill their abusers.1 4 9 They combined the women's self-defense theory developed
in cases like Little, Garcia, and Wanrow with the use of expert testimony on the psychological impact of an abusive relationship on bat145. Id.
146. Id. at 240, 559 P.2d at 559.
147. Id. The court also ruled that it was improper to preclude the jury from considering
circumstances prior to the occasion of the killing, including Wanrow's knowledge of the deceased's reputation for violence. Id. at 237-39, 559 P.2d at 555. Appearing for Wanrow were
Center for Constitutional Rights' William M. Kunstler, Elizabeth M. Schneider, and Nancy
Sterns. Id. at 224, 559 P.2d at 550.
For discussion of Wianrow, see Eber, supra note 1, at 920-26; Schneider, supra note 9, at 64142; Comment, Battered Wives Who Kilk Double StandardOut of Court, Single StandardIn? 2 LAw. &
HUM. BEHAV. 133, 139-40 (1978); Note, Women's Self-Defense Under Washington Law - State v.
Wanrow, 54 WASH. L. REv. 221 passim (1978); Note, State v. Wanrow, 13 GONZ. L. REv. 278
passim (1977).
Although it was heralded as a major breakthrough, time has proven that H'anrou,was not as
strong an influence on the courts as feminists had hoped. See State v. Crigler, 23 Wash. App.
716, 598 P.2d 739 (1979) (holding that trial court is not required to give sex-specific jury
instructions provided that jury is instructed to consider all circumstances known to defendant
at time of assault). But see State v. Allery, 101 Wash. 2d 591, 597-99, 682 P.2d 312, 315-17
(reversing conviction because jury instruction on subjective standard of self-defense was inadequate to allow jury to consider self-defense issue in light of all defendant knew and had
experienced with victim).
148. See supra notes 12-16 and accompanying text (noting special problems arising from
battered women's cases).
149. See Schneider & Jordan, Representation of Women Who Defend Themselves in Response to
Physicalor Sexual Assault, 4 WOMEN'S RTs. L. REP. 149, 151-56 (1978) (discussing defense strategies in battered women's cases).
1986]
BATrERED WOMAN'S DEFENSE
tered women. 150 The feminists assumed from the start that
homicides committed by women are equally reasonable as homicides committed by men. 15 ' The defense strategy is to persuade the
judge and jury that a variety of social factors cause women to per1 52
ceive imminent, lethal danger in situations where men would not.
Although stemming from unique factors, women's perceptions of
danger demand equal recourse to deadly force. 153 This argument is
necessary because traditional self-defense, permeated as it is by
male experience, does not acknowledge that a woman's response to
a set of circumstances could be reasonable even though it was differ54
ent than a man's response to the same set of circumstances.
Rather than requesting that battered women receive special treatment from the law, the creators of the defense hoped to encourage
application of the law of self-defense in a sex-neutral, individualized
manner to all women, including those who kill their abusers. 155
The feminists proposed to obtain equality under the law by removing stereotypical myths and misconceptions about battered women from the trial process.' 56 Yet their self-defense theory for
battered women who kill depends upon persuading the judge and
150. Apparently until the late 1970s, most women charged with homicide after killing
their abusers pleaded guilty or defended themselves on the theory of insanity. See id. at 149
(noting that most women who claimed insanity were convicted routinely); Schneider, supra
note 9, at 638 (discussing cases where battered women were acquitted on grounds of insanity
or diminished intellectual capacity); Comment, supra note 20, at 491 (analyzing use of insanity
defense in battered women's cases); supra note 142 (discussing alternative grounds for defense ofbattered women). Schneider andJordan cautioned that the insanity defense may still
be the best defense option in appropriate cases, but recommended that the self-defense approach be explored first. Schneider &Jordan, supra note 149, at 151. Even when the decision
to use an impaired mental state defense seems appropriate, Schneider and Jordan recommend that the defense should adhere to a woman's perspective and suggest that the woman
was driven to the breaking point by the circumstances of her abuse. Id. at 156. See also Note,
The Battered t'ife Syndrome: A Potential Defense to a Homicide Charge, 6 PEPPERDINE L. REv. 213,
216 (1978) (recommending use of other impaired mental state defenses such as diminished
capacity, heat of passion, and automatism). See generally Schneider &Jordan, supra note 149, at
159 (discussing impaired mental state defenses).
151. Schneider &Jordan, supra note 149, at 150.
152. Id.
153. Id.
154. Crocker, supra note 20, at 123. See State v. Wanrow, 88 Wash. 2d 221, 240-41, 559
P.2d 548, 559 (1977) (holding that traditional self-defense rules cannot be applied fairly to
women because rules do not acknowledge women's limited defensive capabilities).
155. Schneider, supra note 9, at 639-40; Crocker, supra note 20, at 131-32. Schneider recommends substitution of Fletcher's individualization theory for extant objective standards of
self-defense. Schneider, supra note 9, at 639.
156. Schneider &Jordan, supra note 149, at 150. Specifically, feminists attempted to dispel the beliefs that police provide adequate protection for battered women, that battered women voluntarily participate in and enjoy battering relationships, and that the beatings suffered
by these women are justified by their behavior. Schneider, supra note 9, at 625. Seegenerally L.
WALKER, THE BATrERED WOMAN 18-30 (1979) (discussing myths about battered women). But
see Acker & Toch, supra note 18, at 139 (arguing that Walker's "myths" may themselves be
mythical).
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the jury to accept an alternate set of factual generalizations about
women in general, battered women in particular, the efficacy of the
criminal justice system, and society. These assumptions, which
serve to remedy the failure of battered women who kill to prove the
traditional elements of self-defense, include the following:
1. Women find it necessary to resort to self-help because the
courts and police do not provide them with adequate protection
from their abusers. 15 7 Therefore, even in the absence of an imminent or immediate threat of harm, their belief that self-defense is
158
necessary may be reasonable.
2. A woman's perception of danger will be affected by her
smaller size, socialization regarding passive attributes of femininity, and poor physical training. Therefore, it is perfectly reasonable for a woman to believe an unarmed man may be able to kill
her. 159
3. A woman may reasonably feel the need to use a weapon to
160
protect herself from an unarmed assailant.
4. Consideration of surrounding circumstances should not be
limited to the time immediately preceding the killing. Prior conduct of the victim toward defendant will influence her perception
of the dangerous nature of his behavior at the time of the homicide. Prior specific acts of violence should be admissible as well as
61
the victim's general reputation for violence.1
157. For a discussion of problems encountered by battered women in enlisting help from
the police and the courts, see Lerman, supra note 9, at 57; Marcus, supra note 109, at 1657;
Schneider, supra note 9, at 625-26; Waits, supra note 7, at 279-85; Note, supranote 18, at 171014.
158. Schneider & Jordan, supra note 149, at 8.
159. Id. at 157. Historically, an emotionally healthy woman is one who is dependent, passive, and submissive whereas a healthy man is aggressive, competitive, and dominant. Schneider, supra note 9, at 628. Women are discouraged from learning self-defense and engaging in
violent behavior because it is considered unfeminine. Id. Consequently, women suffer extreme anxiety when placed in a situation where self-preservation requires physical violence.
Id. at 632. See Hoffman-Bustamente, The Nature of Female Criminality, 8 IssuEs INCRIMINOLOGY
117, 123 (1973) (noting that homicides committed by women often are related closely to
traditional feminine sex role).
160. Schneider &Jordan, supra note 149, at 158. Indeed, many women have claimed that
they armed themselves only to threaten their attacker and were forced to use the weapon
because of a sudden move by their attacker. See State v. Kelly, 33 Wash. App. 541, 542, 655
P.2d 1202, 1202 (1982) (defendant claimed that pistol accidentally discharged while pointed
at intoxicated husband); see also Schneider, supra note 9, at 632 (noting women's reluctance to
defend themselves without weapons). Generally, proportionate, rather than like, force is required. People v. Reeves, 47 Ill. App. 3d 406, 410, 362 N.E.2d 9, 13 (1977).
161. Schneider &Jordan, supra note 149, at 158; Schneider, supra note 9, at 634-35.
Battered women usually believe that the incident that resulted in the homicide was
more severe or life-threatening than prior incidents. Studies suggest that battered
women have learned to be attentive to signs of escalating violence and to modify
their behavior in response to these danger signals in order to pacify violent husbands. Subtle motions or threats that might not signify danger to an outsider or to
the trier of fact acquire added meaning for a battered woman whose survival depends
on an intimate knowledge of her assailant.
1986]
BATrERED WOMAN'S DEFENSE
39
and desire for revenge is not inconsistent
5. Defendant's rage
1 62
with self-defense.
These assumptions widen the scope of relevant testimony and
constitute the framework for the argument that the defendant's belief that self-defense was necessary was subjectively reasonable.
Borrowing from Fletcher's writings, the feminists argued that the
reasonableness of the woman's act of self-help should be adjudged
in a sex-neutral, individualized manner in which the individual defendant's characteristics and culpability are relevant. 163 The jurors
should be instructed to place themselves in defendant's shoes and
determine under all the circumstances, including defendant's history as a battered woman, the reasonableness of defendant's belief
that use of deadly force was necessary.
Among the trial tactics the creators of the battered woman's defense recommend is the careful and strategic use of lay and expert
testimony to neutralize stereotypical prejudices and ideas that may
interfere with the jury's ability to perceive the defendant's conduct
as a reasonable act of self-defense.' 6 4 Although the expert testimony may take numerous forms, many defense attorneys have used
expert psychiatric or psychological testimony. Often it consists primarily of a description of Dr. Lenore E. Walker's cycle of violence
and learned helplessness theories which together constitute the batId. at 634 (footnotes omitted). Schneider argued that a woman who cannot admit such evidence is denied a fair trial and equal protection of the laws. Id. at 637.
Broadening the time frame by admitting evidence of past abuse has the problematic side
effect of increasing the number of apparent opportunities for the defendant to escape the
entire violent situation. The fact-finder may become increasingly likely to attribute some fault
to the defendant for creating the incident that resulted in the killing. See Note, supra note 35,
at 621-22 (discussing application of imminent danger doctrine in battered women's cases).
Expert evidence is essential to defuse this inevitable prosecutorial argument.
162. Schneider & Jordan, supra note 149, at 158. This aspect of the original strategy
seems to have fallen by the wayside in subsequent discussions of the battered woman's defense. It may be due to the fact that the rules of self-defense allow for mixed motives so long
as the defendant actually believes deadly force is necessary. See W. LAFAvE & A. Scorr, supra
note 66, at 394-95 (discussing aggressor's right to self-defense).
163. Crocker, supra note 20, at 131; Schneider, supra note 9, at 624. Crocker recognizes
the inconsistency in considering gender-related attributes of the defendant under a purportedly sex-neutral standard. See Crocker, supra note 20, at 150-53 (noting tensions in legal approaches to battered women's self-defense claims).
164. Schneider &Jordan, supra note 149, at 162. Schneider, however, warns that expert
testimony should be tailored closely to the defendant's particular circumstances. Schneider,
supra note 9, at 646. Generalized testimony may encourage sexual stereotyping by promulgating a "battered women's syndrome" defense. Id. Accordingly, Schneider argues that expert
testimony should be used sparingly, particularly when the defendant can credibly and cogently argue her own case.
Recently, the battered woman's defense has come under increasing feminist criticism precisely because it may be replacing old stereotypes with new ones. See Crocker, supra note 20,
at 121-22 (arguing that battered woman's defense has perpetuated stereotypes that defense
was designed to eliminate).
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tered woman syndrome. 6 5 The expert will describe the battered
woman syndrome in general terms after which she may be permitted
to testify that the defendant suffers from battered woman
66
syndrome. '
165. Walker postulates that domestic violence occurs in cycles, each with three phases.
Walker, Thyfault & Browne, supra note 133, at 6. The first phase, known as the tension building phase, consists of small abusive episodes. Id. During this phase, the victim of the abuse
may plan to escape or have tried to escape in the past and failed. Id. The second stage-the
major violence phase-consists of an acute battering incident. Id. During this period of time
the woman is more likely to concentrate on survival than on escape. Id. Her behavior at this
time is characterized by "learned helplessness." Id. The woman will feel that her batterer is
omnipotent and that no one can help her. Id. at 9. She will focus her emotional energy on
developing coping responses rather than escape responses. Id. The acute battering incident
is followed by the third and final phase of the cycle. Id. at 6. This period is characterized by
calm. The abuser will be kind, loving, and contrite. Id. Due to learned helplessness and her
desire to make the relationship work, the victim is likely to succumb to her tormentor's
promises of reform until the cycle begins all over again. Id. As time goes on, the tension
building periods become longer and more intense while the periods of contrition become
shorter and less compelling. Id. at 9. Walker has also identified certain common characteristics of battering relationships and of each of the parties to such a relationship. See zd. at 10-12
(noting that abusive husbands frequently were abused as children, abuse alcohol and drugs,
have history of arrests and convictions, and generally do not act violently towards nonmembers of their immediate family); see also, Comment, supra note 20, at 486-88 (discussing
Walker's cycle of violence theory). For a much more complete exposition of Walker's theory,
see generally L. WALKER, supra note 156, at 23-64.
166. See, e.g., Ibn-Tamas v. United States, 407 A.2d 626, 634 (D.C. 1979) (holding expert
testimony relevant to enhance defendant's credibility and support her testimony that she
feared imminent danger); Borders v. State, 433 So. 2d 1325, 1327 (Fla. Dist. Ct. App. 1983)
(ruling expert evidence on battered woman syndrome admissible provided expert is qualified
and expert's field is generally accepted); Hawthorne v. State, 408 So. 2d 801, 806 (Fla. Dist.
Ct. App. 1982) (allowing expert evidence to show that due to battered woman syndrome, it
was reasonable for defendant to remain in home and to believe her life was in imminent
danger); Smith v. State, 247 Ga. 612, 619, 277 S.E.2d 678, 683 (1981) (admitting expert
evidence regarding battered women in general); People v. Minnis, 118 Ill. App. 3d 345, 357,
455 N.E.2d 209, 217 (1983) (holding expert testimony relevant to explain reasons why defendant would dismember and hide body after killing in self-defense); State v. Anaya, 438
A.2d 892, 894 (Me. 1981) (finding expert testimony relevant to defendant's behavior and
perception at time of killing because testimony gives jury reason to believe defendant's conduct was consistent with self-defense); State v. Kelly, 97 N.J. 178, 202, 478 A.2d 364, 375-77
(1984) (ruling expert testimony relevant to objective reasonableness and honesty of defendant's belief that deadly force was necessary); People v. Torres, 128 Misc. 2d 129, 133, 488
N.Y.S.2d 358, 362 (1985) (allowing expert to testify regarding power of battered women to
distinguish between various degrees of violence and danger); State v. Allery, 101 Wash. 2d
591, 597, 682 P.2d 312, 316 (1984) (admitting expert testimony to explain why a battered
woman remains in abusive relationship and why defendant perceived herself in imminent danger at time of shooting). But cf. Buhrle v. State, 627 P.2d 1374, 1377 (Wyo. 1981) (excluding
testimony that defendant suffered from learned helplessness and perceived herself to be acting in self-defense because, inter-alia, defendant's behavior did not fit into pattern of battered
woman syndrome).
Experts also have testified concerning the lack of supportive services and its effect on battered women. See People v. Emick, 103 A.D.2d 643, 658 n.3, 481 N.Y.S.2d 552, 561 n.3
(1984) (expert testified that lack of services prevents battered women from leaving abusive
setting); People v. Torres, 128 Misc. 2d 129, 133, 488 N.Y.S.2d 358, 362 (1985) (expert testimony that battered woman syndrome arises from lack of anywhere else to go).
Similarly, experts have testified regarding the characteristic attributes of battering husbands. See State v. Seelke, 221 Kan. 672, 682, 561 P.2d 869, 876 (1977) (testimony concerning husband's alcohol abuse allowed); State v. Anaya, 438 A.2d 892, 893 (Me. 1981)
(testimony admitted to determine psychological and environmental factors that contribute to
1986]
BATTERED WoMAN's DEFENSE
41
Expert testimony is used to show why, under the particular circumstances of the case, the defendant's conduct was reasonable
and, therefore, justified.1 6 7 Theoretically, the woman's defensive
action will be proved necessary and proportionate by showing how
the defendant could perceive a threat of imminent danger in verbal
threats alone, in a nondeadly attack from an unarmed spouse, or
from a sleeping man.' 68 The testimony explains why the woman
stayed with her spouse despite the abusive relationship and why, on
the occasion in question, she may not have run away or sought
assistance from friends, relatives, or the police despite an apparent
opportunity to do so. 169 Finally, the testimony explains why the woman cannot be faulted for becoming involved in an abusive relationship. Rather, she is a victim of her social reality, responding to
circumstances in accordance with the values of femininity and life70
long marriage to which she was acculturated.'
spousal abuse). See generally Note, The Use ofExpert Testimony in the Defense of Battered Women, 52
U. CoLo. L. REV. 587, 595-99 (1981) (discussing importance of evidence regarding psychological background of abusive husbands).
167. Arguably, use of expert testimony is the primary trial strategy for attorneys who seek
to defend battered women. See Crocker, supra note 20, at 132 (discussing feminist trial strategies). Some critics of the defense apparently believe that the battered woman's defense is
nothing more than expert testimony on the battered woman syndrome. See Acker & Toch,
supra note 18, at 143 (questioning whether battered woman syndrome is appropriate subject
for expert testimony). It is probably this misconception that primarily has led to confusion in
the community and the courts regarding the exact nature of the battered woman's defense.
For examples of the vast amount of legal scholarship devoted to the question of the admissibility of such expert testimony under the rules of evidence, see id.; Cross, The Expert as Educator: A ProposedApproach to the Use of Battered Woman Syndrome Expert Testimony, 35 VAND. L. REV.
741, 757-71 (1982); Comment, supra note 20, at 485; Comment, The Admissibility of Expert Testimon, on the Battered Woman Syndrome in Support of a Claim of Self-Defense, 15 CONN. L. REV. 121,
130-41 (1982); Comment, The Admissibility of Expert Testimony on Battered Wife Syndrome: An Evidentariy Analysis, 77 Nw. U.L. REV. 348, 355-74 (1982); Comment, State v. Thomas: The Final
Blow to Battered Women?, 43 OHIo ST. LJ. 491, 500-32 (1982); Comment, Expert Testimony on the
Battered Iiffe Syndrome: A Question ofAdmissibility in the Prosecutionof the Battered Wife for the Killing
of Her Husband, 27 ST. Louis U.L.J. 407, 412-30 (1983); Note, supra note 166, at 587; Note,
Criminal Law - Evidence - Expert Testimony Relating to Subject Matter of Battered Women Admissible
on Isue of Self-Defense, I1 SETON HALL 255, 261-79 (1980); Note, Admitting Expert Testimony on the
Battered Woman Syndrome, 21 WASHBURN L.J. 689, 694-710 (1982).
168. See Crocker, supra note 20, at 132-35 (discussing difficulties encountered in proving
imminent danger in light of stereotypic assumptions about battered women); Schneider, supra
note 9, at 634 (analyzing imminent danger rule in battered women's cases).
169. Most women either cannot leave or are afraid to leave. For example, one or a combination of any of the following factors may be present. The woman may not have any financial
resources, there may be no other place to go due to the reluctance of friends, family, and
police to get involved, or the abuser may have threatened to kill the woman if she tries to
leave. Sometimes, aborted escapes may have preceded the resort to self-help. See generally
Crocker, supra note 20, at 133-34 (noting reasons why women are unable to leave abusive
relationships); Eber, supra note 1, at 901-02 (arguing that emotional dependency prevents
wives from leaving); Schneider, supra note 9, at 626-27, 629 (discussing social obstacles to
women's escape); Comment, supra note 20, at 488-91 (analyzing difficulties encountered by
women attempting to free themselves from battering relationships); Note, supra note 18, at
1708-14 (noting failure of criminal justice and social service systems to aid battered women).
170. Crocker, supra note 20, at 135. The battered woman's defense requires application
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The problem is that such an inquiry is inconsistent with the theory
of justification which assumes that anyone who does the same 1act
71
under the same external circumstances has done the right thing.
By including a certain psychological trait of the individual in the circumstances, we have moved closer to the theory of excuse than to
justification. 1 7 2 Nonetheless, the feminist theory is based on the
premise that explanation of the reasonableness of defendant's belief
that use of deadly force was proportionate and necessary will establish that the woman's act was justified rather than excused.1 7 3 Feminists argue that recognition of the woman's act as justified rather
than excused is crucial.
[E]xcusable self-defense would imply that her response was typically and idiosyncratically emotional. The doctrine would perpetuate the views that the woman could not have been rational in
assessing the danger and that the legal system must compensate
for her mental and physical weaknesses ....
Justification, on the other hand, would assume that society values a woman's and a man's lives equally, and thus considers wo-
men's lives worthy of self-defense. It would recognize that a
woman has the capacity to correctly and reasonably perceive that
the act is warranted, legitimate, and justified. Justification would
encourage, indeed would compel, a legal recognition that a woman's capacity for reasonable judgment-comparable to that of a
of a subjective standard of reasonableness. Some courts have allowed expert testimony on
battered woman syndrome, but have rejected specific jury instructions concerning the syndrome, noting that the subjective standard of reasonableness adequately conveys the need to
examine the defendant's particular situation. See State v. Leidholm, 334 N.W.2d 811, 817-18
(N.D. 1983); State v. Allery, 101 Wash. 2d 591, 595-98, 682 P.2d 312, 314-15 (1984). But see
State v. Kelly, 97 N.J. 178, 207-08 & n.13, 478 A.2d 364, 379 n.13 (1984) (holding that expert
testimony was admissible to prove objective reasonableness of defendant's fear of harm).
171. See Robinson, supra note 27, at 292. Professor Robinson correctly observes that the
use of subjective, actor-oriented factors in the determination of whether an otherwise criminal
act is justified undermines the purposes of the criminal law by condoning conduct that results
in harm to society. Id. But see Fletcher, supra note 32, at 295 (arguing that actor's intent is
relevant to justification). Consequently, one who acts with a bad motive should not be acquitted of the crime despite the fact that unknown to the actor, justifying circumstances existed.
See supra note 35 and accompanying text (discussing implications of actor's bad motive and
existence ofjustifying circumstances).
172. Professor Fletcher suggests abandonment of the reasonableness standard for excuses altogether and substitution of a simple assessment of the actor's character and culpability in each individual case. Fletcher, Individualization, supra note 25, at 1290-91. He argues
that use of subjective standards of reasonableness requires making the same inquiry. To decide whether defendant's particular weakness should be included among the circumstances to
be attributed to the reasonable person, one must actually decide whether the particular psychological factors that affected defendant's conduct are excusable. Id. In excuse cases,
Fletcher concludes that the jury instructions at least must impose the defendant's particular
pathological fears on the reasonable person standard. Id. at 1292. See also Donovan &
Wildman, supra note 21, at 467 (suggesting replacement of the reasonable person test in selfdefense and passion and provocation cases with a standard that asks whether defendant's
conduct was understandable).
173. Crocker, supra note 20, at 130.
1986]
BATrERED WOMAN'S DEFENSE
43
man's-can be the basis for engaging in the "correct behavior" of
174
self-defense.
This doctrinaire insistence on treatment of the battered woman's
defense as a justification is unnecessary and may be fatal to widespread and successful use of the battered woman's defense. Most
battered woman's defense cases involve situations in which the defendant was not, in fact, in imminent danger of death or serious
bodily harm at her victim's hands. 175 The defense relies on persuading the jury that defendant suffered from an identifiable psychological syndrome that caused her to assess the dangerousness of
the situation in a different manner than an average, ordinary person-including a woman who does not suffer from battered woman
syndrome. In other words, acquittal is dependent upon proving
that defendant had, to use Robinson's terminology, a disability that
caused a mistaken, but reasonable, belief in the existence of circumstances that would justify self-defense.1 76 It is a theory of excuse
rather than of justification. 177 Because defendant responded to internal and external coercive pressures, for which she was not responsible but which were created by her social reality as a battered
woman, she is not to blame for her conduct. A person who did not
suffer from battered woman syndrome, however, would be culpable
under identical external circumstances. Indeed, successful use of
the battered woman's defense theory depends in part on defense
counsel's ability to persuade the court and jury that a person who
did not suffer from battered woman syndrome would not be justified under identical objectively identifiable circumstances.1 78 This,
174. Crocker, supra note 20, at 131 (footnotes omitted). See also Schneider, supra note 9, at
638. Schneider criticizes the use of excuse theories of passion and provocation, and diminished capacity because the theories only result in mitigation. Id. Similarly, Schneider criticizes use of the insanity defense because it results in involuntary civil commitment. Id. The
theory of excused self-defense advocated in this Article, however, is designed to lead to complete acquittal.
175. See supra notes 13-16 and accompanying text (discussing battered women's cases that
did not involve imminent threats).
176. See supra notes 72-77 and accompanying text (discussing nature of disability required
to excuse defendant's conduct). This author recognizes that battered woman syndrome is not
a mental illness as such. Nonetheless, it undeniably is caused by external circumstances and
impairs defendant's free will.
177. See supra notes 53-58 and accompanying text (explaining theoretical differences between justification and excuse). This point is further illustrated by advocates of the defense
who recommend application of Fletcher's theory of individualization of excusing conditions
to self-defense claims. See Schneider, supra note 9, at 639-40 (stating application of individualization theory reduces impact of sex bias on women's claims of self-defense).
178. Cf. Crocker, supra note 20, at 131 n.49 (asserting that defense is evidence of action's
reasonableness). Similarly, it is essential to show that the disability alone does not excuse the
defendant. See State v. Leidholm, 334 N.W.2d 811, 8 19-20 (N.D. 1983) (approving proposed
jury instruction because instruction clearly stated that battered woman syndrome is not defense in itself); State v. Kelly, 33 Wash. App. 541, 543-44, 655 P.2d 1202, 1203 (1982) (stating
that battered woman syndrome does not confer right to kill, but must be considered in deter-
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however, is inherently inconsistent with the concept of justification.
Efforts to characterize artificially the battered woman's defense as
a justification must ultimately lead to some of the current misapprehensions as to its nature and the fears that its adoption will ultimately lead to justification of all killings that the defendant
subjectively believed were necessary and proportionate. Conversely, it may explain, in part, the tendency to incorrectly view bat-
tered women as bearing a special right to self-defense based on their
victimized status alone. 179 Recognition that the defense is categorized properly as an excuse rather than a justification may enhance
the ability of battered women who kill to win acquittals. To present
a complete defense, a defendant would still have to show that her
belief that justificatory circumstances existed was subjectively reasonable. Because the defendant is excused rather than justified,
however, there would be no chance that the conduct will be
encouraged.1s 0
The fact that the battered woman's defense is more consistent
with excuse theory does not answer the feminist concern that excusing battered women who kill, in circumstances they believe create a
right of self-defense, may perpetuate undesirable views that women
are by nature irrational and that their lives are unworthy of self-defense against a man."" First, however, these concerns are overblown. Treatment of the battered woman's defense as an excuse
does not preclude justifying women who kill men under objectively
82
identifiable circumstances more akin to traditional self-defense.'
mining reasonableness of defendant's conduct), rev'd on other grounds, 102 Wash. 2d 188, 685
P.2d 565 (1984).
179. See supra note 20 and accompanying text (discussing concern that battered woman
syndrome may be considered distinct defense). But see State v. Leidholm, 334 N.W.2d 811,
819-20 (affirming that evidence ofdecedent's abusive behavior goes only to reasonableness of
defendant's conduct); State v. Kelly, 33 Wash. App. 541, 543-44, 655 P.2d 1202, 1203 (1982)
(specifying that defendants will not be acquitted merely due to their status as battered women), rev'd on other grounds, 102 Wash. 2d 188, 685 P.2d 565 (1984).
180. Consideration of the fact that the conduct might be excused prior to the killing partially defeats a claim of excuse. See Fletcher, supra note 25, at 1304 (emphasizing differences
between excuse and justification).
Robinson recommends adoption of special verdicts, similar to not guilty by reason of excuse. Robinson, supra note 24, at 245-47. He believes that requiring the jury to state that it
acquitted defendant because she was excused will eliminate the risk that the verdict may be
misinterpreted as a decision that defendant's conduct was justified. Id. Thus, greater reliance
on excuses would not interfere with the deterrent and condemnatory function of the prohibitory criminal law. Id. See also Greenawalt, supra note 25, at 1900-02 (discussing pros and cons
of Robinson's suggestion for special verdicts).
181. See supra note 174 and accompanying text (noting feminists' objections to use of excuse theory).
182. Courts have acquitted battered women without special reliance on the battered woman's defense in cases where there was clear evidence that the victim threatened imminent
use of deadly force. People v. Reeves, 47 Ill. App. 3d 406, 412, 362 N.E.2d 9, 14 (1977);
1986]
BATTERED WOMAN'S DEFENSE
Second, for the same reasons that battered women should be excused for killing their spouses, men who kill under mistaken beliefs
as to justifying circumstances should also be excused. 183 Third,
even if treatment of the battered woman's defense as an excuse does
lead to perpetuation of sex discrimination under the current law, it
may be that the problem should be cured in a different manner than
the feminists recommend. All self-defense should be treated as excused rather than justified conduct. Indeed, the difficulties that the
courts and commentators have encountered with the battered woman's defense vividly illustrate the need for such a reconceptualization of the defense. Excused self-defense would better meet the
needs of battered women, of the criminal justice system, and of society in general. 184
V.
THE CASE FOR EXCUSED SELF-DEFENSE
Today, most American jurisdictions classify self-defense as ajustification even though it traditionally developed as an excuse.1 85 As a
result, principles of excuse have become merged with principles of
justification in the law of self-defense. Consequently, results in
some cases are illogical and inconsistent with basic principles of
criminal law. 18 6 The problem is particularly apt to arise when demands are made to justify self-help behavior that is harmful to society in instances where the actor cannot fairly be held blameworthy
because of circumstances particular to that individual. 18 7 Battered
women who kill their abusers present the paradigm example of such
cases. Although the defendant's conduct is understandable, and abCommonwealth v. Watson, 494 Pa. 467, 474, 431 A.2d 949, 952-53 (1981); Commonwealth v.
Zenyuh, 307 Pa. Super. 253, 255, 453 A.2d 338, 339-40 (1982).
183. Accord Fletcher, Individualization,supra note 25, at 972-73 (advocating view that actions based on reasonable mistake should be excused); Robinson, supra note 24, at 224-25,
239-40 (classifying all mistakes regarding justifying circumstances as excuses); see also supra
note 71 and accompanying text (discussing Fletcher's and Robinson's theory on reasonable
mistakes).
184. At least one author agrees:
The greatest danger posed by the failure to consider the theory and policies underlying justification is that assumptions applicable to excuse will influence the formulation of standards for justification. The most important assumption in this regard is
that the conduct for which the defense is claimed is to be discouraged at worst and
pardoned at best. Such an assumption is necessarily burdensome to the defendant,
for it is applied in practice either by narrowing the range of acts to be deemed justifiable or by setting up standards of conduct so stringent that a person will be discouraged from engaging in the conduct in the first place.
Note, %upanote 25, at 921.
185. See supra notes 78-96 and accompanying text (discussing evolution of self-defense
theory).
186. See Robinson, supra note 27, at 274-79 (demonstrating that inconsistencies result
when justification and excuse theories are merged).
187. Battered woman's defense cases are prime examples of this problem.
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solving her from moral blame is not difficult, we are hesitant to proclaim that the act was justified and therefore to be encouraged.
Even in traditional cases, self-defense is, at most, permissible and
tolerated. 18 8 Treatment of all self-defense as an excuse would further the criminal justice system's interest in discouraging self-help,
promote society's interest in preserving the sanctity of human life,
and fulfill the feminist goal of absolving battered women who kill of
guilt without proclaiming that such women are inferior to men.
Justification requires that the actor chose to violate the criminal
law only because it was the lesser of a necessary choice of evils. 1 8 9
Classification of self-defense as a justification, therefore, requires
that the defender's interest in life be regarded as superior to that of
the unlawful aggressor's. 190 The act is accordingly one that is encouraged because it was beneficial to society or at least created no
harm. The qualitative balancing act required to justify killings in
self-defense, however, is not easy to perform. 1 9 '
The law's prohibition against intentional killing coincides with
contemporary society's emphasis on the importance of human life as
the most valuable interest protected by the criminal law. 1 9 2 Clearly,
however, there are also circumstances when intentional killing is justified because of the benefit it confers upon society as a whole. The
intentional killings originally justified by the criminal law illustrate
such situations. 19 3 For example, one who kills a military enemy in
battle is justified, as is the officer who kills to prevent an act of ter188. Dressier, supra note 25, at 437; Fletcher, supra note 34, at 977. Elsewhere, Fletcher
argues that the moral forfeiture theory of self-defense is problematic and concludes that selfdefense is better characterized as a necessary evil rather than a desirable event. Fletcher,
supra note 32, at 305-06. See infra notes 202-06 and accompanying text (discussing problems
in using moral forfeiture theory to support classification of excuse and justification).
189. See supra notes 38-41 and accompanying text (discussing lesser evil doctrine injustification theory).
190. See supra note 43 and accompanying text (discussing combination of societal interests
that outweigh need to protect abuser from harm).
191. See Note,Justification and Excuse in the Judaic and Common Law: The Exculpation of a Defendant Chargedwith Homicide, 52 N.Y.U.L. REV. 599, 608 (1977) (discussing difficulties inherent
in qualitative analysis). The problem is particularly acute when both victim and defendant are
not blameworthy. See infra notes 211-12 and accompanying text (acknowledging that batterers also may be victims of their own social reality).
192. See Dressler, supra note 25, at 458 (citing examples that demonstrate value that criminal law places on human life). But cf. Kadish, Respect for Life and Regardfor Rights in the Criminal
Law, 64 CALIF. L. REV. 871, 878-81 (1976) (arguing that sanctity of human life is not preeminent principle of Anglo-American law).
193. See supra notes 82-85 and accompanying text (discussing instances when intentional
killings are beneficial to society). Justifiable homicides were subdivided by the common law
into "private defence" and "public defence." Harlow, Self-Defence: Public Right or Private tizvilege, 1974 CRIM. L. REV. 528, 529-30 (1974). Private defence involved protection of one's
person or property against violent felonies. Id. Force inflicted to accomplish the ends of
criminal justice was public defence. Id. Public defence included prevention of felonies, capture of felons, and recapture of escaping prisoners. Id.
1986]
BATrERED WOMAN'S DEFENSE
47
rorism or to apprehend a person who has taken others hostage.
Similarly, if we assume for the moment that capital punishment is
acceptable, the executioner's act of killing the condemned is certainly justified.' 9 4 In all of these circumstances (the list is not exclusive), one life is taken to save many lives and to enhance the power
of the rule of law. And, except in the instance of war, arguably the
person whose life has been taken already has been shown to be dangerous and a threat to society as a whole.
A classic self-defense case involves a situation in which the actor
takes the life of another to save the actor's life.' 9 5 One life has been
chosen over one other life and the choice has been made in contravention of the legal rule generally prohibiting intentional killings.
In the best of cases, it is difficult to identify any benefit that might
accrue to society in general as a result of the killing.19 6 Moreover,
the common law has always had great difficulty making judgments
that one human life is more valuable than another. 9 7 The result is
198
the rule that a person can only defend against unlawful force.
Yet, even this rule, the basis of which is uncertain, does not entirely
solve the problem. First, modem criminal codes, for the most part,
classify at least those cases in which the mistake was reasonable as
justified self-defense. 199 The closer the law moves toward a subjective standard of reasonableness, the greater the threat to the attacker's basic human rights. The extent of the attacker's rights
would be defined solely by the victim's judgment of what was the
right response under the circumstances. 20 0 Indeed, cases involving
194. In our pluralistic society it is unlikely one would ever obtain unanimous agreement
that any of these circumstances do in fact morally justify killing another human being.
195. Note, supra note 191, at 608. See also supra notes 128-32 and accompanying text (discussing traditional self-defense scenario).
196. See Fletcher, supra note 32, at 306 (concluding that self-defense does not confer affirmative benefit on society). Arguably, there may be some benefit when the victim of the
killing threatens the defendant's life in connection with the commission of another serious
felony between strangers. In such a case, it is arguable that the victim has shown himself to be
a threat to other innocent persons in the same way as a terrorist or taker of hostages might be.
On the other hand, the threat may be empty or it may come about in connection with an
isolated criminal episode.
197. See G. FLETCHER, RETHINKING, supra note 25, at 858 (arguing that, except for the
aggressor's culpable behavior, there is no reason to value defender's life more than aggressor's life); Ashworth, Self-Defence and the Right to Life, 34 CAMBRIDGE L.J. 282, 282-83, 287-92
(1975) (recognizing that every person has basic right to life and physical security); Note, supra
note 191, at 601, 603 (1977) (discussing difficulties inherent in weighing relative worth of
lives); cf. Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884) (finding no acceptable standard for measuring comparable value of lives when victim innocent of wrongdoing).
198. See supra note 129 and accompanying text (specifying that element of self-defense is
reasonable belief that victim's conduct was unlawful).
199. See supra note 78 (discussing Model Penal Code's treatment of self-defense asjustification) and notes 101-07 and accompanying text (setting forth jurisdictional elements that
justify intentional killing).
200. Ashworth, supra note 197, at 305. Ashworth argues that a purely subjective test
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mistake regarding the perception that the victim was threatening
unlawful deadly force could result in the taking of an entirely innocent life. The killing of an innocent victim cannot be justified rationally. Society has been harmed by the taking of an innocent life
and the actor can only be acquitted under an excuse theory. 20 ' Second, even an unlawful aggressor is not necessarily a threat to all
society. The attacker may only be a threat to one other person, the
defender. Therefore, self-defense can only be the lesser evil if the
interests of the defender that the aggressor threatens are greater
than the aggressor's interest in life.
A variety of theories have been suggested to support the relative
devaluation of the unlawful aggressor's life. Robinson postulates
that, although the relative physical harms to be suffered by the defender and the aggressor are equal, the defender also has an interest
in bodily integrity. When the right to bodily integrity is added to
the defender's right to be free from physical injury, the aggressor's
interest in freedom from physical injury is outweighed. 2 02 This
view, however, is problematic because it blithely ignores the fact
that the aggressor must also have a right to bodily integrity. 20 3
Essentially, Robinson's theory is a forfeiture theory. The idea behind the moral forfeiture theory that self-defense is correctly classified as a justification is that by virtue of his act of aggression, the
aggressor forfeits some interest or right he would otherwise have
had-such as the right to bodily integrity, his interest in life, or his
right to freedom from aggression. The forfeiture theories cannot
withstand a number of difficulties. 20 4 If the defender is mistaken as
to the unlawfulness of the aggression, his act will still be justified.
Yet, it is difficult to say that one whose aggression was not unlawful
has waived any rights. 20 5 Even when the aggressor's conduct is actually unlawful, there are difficulties. The criminal law generally
should apply to a person's belief in the circumstances of necessity upon which a justificatory
defense might be based. Id. at 304. He rejects, however, the tendency to assume that a person's bona fide belief that certain action was necessary makes that action reasonable and lawful under the circumstances. Id. He argues that these are questions of law which the court
should resolve. Id. at 304-05.
201.
See G. FLETCHER, RETHINKING, supra note 25, at 684, 762-69 (illustrating that mistakes
regarding circumstances should be excused, not justified); Dressler, supra note 25, at 441
n. 180 (supporting use of excuse theory when actor's mistaken belief results in taking of innocent life); Fletcher, Individualization,supra note 25, at 1276, 1279 (arguing that excuse theory is
applied properly when actor has mistaken belief that self-defense is necessary).
202. See supra note 43 and accompanying text (discussing Robinson's method of weighing
competing interests of defender and aggressor).
203. Id.
204. See Fletcher, supra note 32, at 307 (using example of insane aggressor to illustrate
problems inherent in moral forfeiture theory); Kadish, supra note 192, at 883-84 (analyzing
difficulties in using forfeiture theory to support classification of self-defense as justification).
205. See Dressier, supra note 25, at 454. Dressler rejects the forfeiture theory that a person
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does not permit express consent to one's own death. 20 6 Yet, any
forfeiture theory presumes that the victim's act of aggression constitutes implied consent to the use of defensive force.
Ultimately, there probably is no acceptable calculus to support
treatment of self-defense as a justification. Its modem classification
as such is likely the product of historical accident. If the law were to
recognize that even traditional self-defense is properly considered
an excuse, the nonculpable defensive acts of many more people
could be excepted from punishment without the threat of escalating
societal violence.
The difficulty in devaluing the life of the aggressor is particularly
acute in some battered women's cases. Many men who abuse their
spouses never display aggressive or violent behavior outside the
confines of their homes. 20 7 Certainly, perpetrators of domestic viowho chooses to threaten another person's life must accept the consequences. Dressier argues
that the theory is both overinclusive and underinclusive:
If Victim threatens Actor because of a mental disease which makes him unable to
conform his conduct to the law, Victim's subsequent death cannot be justified under
a forfeiture theory based on choice, because Victim's aggression was not freely
willed. Nonetheless the common law presumably permits the killing of such an insane aggressor. Conversely, if forfeiture explained the defense, an aggressor would
forfeit the right to complain when the other party attempted to kill him, even when
such a killing was unnecessary; yet lethal self-defense does not result in acquittal
when the person attacked can avoid his own death by less extreme tactics.
Id. (footnotes omitted). Instead, Dressier concludes that the self-defense rules can be rationalized on a theory of "comparative moral wrongdoing." Id. Victim's conduct is wrong even
if he was insane and could not voluntarily choose to forfeit his rights. Actor's conduct is
wholly innocent. Therefore, Victim's death is not harmful to society. Id. at 454-55.
This comparative moral wrongdoing theory is as unpersuasive as the forfeiture theories.
Even though an insane defendant's conduct was wrong, we do not convict him because he did
not voluntarily choose that course of conduct and was not morally blameworthy. The fact that
the insane person was the victim rather than the actor should not make his conduct more
reprehensible.
Two other theories have been suggested to support categorization of self-defense as ajustification. The first is that self-defense should be regarded as the defender's moral right to
vindicate his right of autonomy and to protection by the state against threats to his life. Kadish, supra note 192, at 884-85. This right is limited by the principle of proportionality. Id. at
886. As with moral forfeiture or comparative moral wrongdoing, this rationale does not withstand scrutiny when the defender is mistaken in his belief that his life has been endangered.
Even if the defender is correct, it does not explain why the right should extend to disproportionate self-help. The state purportedly fulfills its duty to protect its citizens against threats to
their lives through the processes of the criminal law. And, those processes of law would not,
in most instances, hold sacrifice of the aggressor's life to be a proportionate punishment. See
itifra notes 220-21 and accompanying text (noting probable inapplicability of capital punishment to domestic abuse cases).
The second argument is that it is necessary to classify self-defense as ajustification in order
to deter aggression and that such a classification is philosophically defensible because "it is
the aggressor who is the prime cause of the mischief." Williams, supra note 25, at 739. It is
dubious that a self-defense justification does any more to deter aggression than would a selfdefense excuse. Williams' argument that classification as a justification is philosophically defensible is no more than another variety of forfeiture theory.
206. See W. LAFAVE & A. ScoTT, supra note 66, at 408-09 (stating that victim's consent
generally does not constitute defense).
207. See Vaughn & Moore, supra note 20, at 421 (discussing possibility that community is
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lence are not nice people. Yet, it is doubtful that anyone seriously
could argue that ridding society of people merely because they are
not nice benefits all.2 08 Feminists assert that the abuser's intent to
kill or seriously injure his wife makes his death nonharmful rather
than his character as a wife-beater. 20 9 A victim of battered woman
syndrome, however, may be mistaken as to the true nature of her
spouse's threats on a particular occasion. Even if the mistake is reasonable or if there is no mistake, the difficulty with the calculus remains. Proponents of the battered woman's defense sympathize so
much with the defendant that they have a tendency to focus exclusively on the psychological and physical harm suffered by the woman while forgetting the abuser. His right to life, though, is equally
2 10
important as the woman's.
One of the most difficult problems confronted by legal theorists is
the question of whether killing a legally insane aggressor in selfdefense can bejustified. Forfeiture theories of self-defense that rely
on devaluing the aggressor's interest in life, freedom from aggression, or bodily integrity because of his wrongful conduct disintegrate in cases where the aggressor is not culpable. 2 11 This
not aware of husband's violent nature); Waits, supra note 7, at 287-88 (stating that abusive
husbands are rarely violent in other relationships).
208. The proponents of the battered woman's defense decry this possibility as well. Their
writings proclaim that their goal is not to obtain an acquittal for the battered woman merely
because her victim beat her. Rather, they propose to show that the woman acted in proper
self-defense when she killed her aggressor. The fact that he abused her does not justify the
killing. It just helps to explain why she reasonably believed that she was being threatened
with imminent deadly force. See supra notes 148-74 and accompanying text (discussing goals
of battered woman's defense supporters).
This concern that the law may be interpreted to encourage killing of abusing spouses appears to be the basis for much of the criticism of the defense. See supra notes 18-19 and
accompanying text (discussing fears that battered woman's defense may provide license to
kill). If self-defense was not classified as a justification, this would no longer be a concern.
209. See Dressier, supra note 25, at 452 (noting that abuser's conduct supports conclusion
that his death does not constitute social harm).
210. R. TONG, WOMEN, SEX, AND THE LAw 206 (1984). To justify even the killing of a
battering husband who in fact was threatening imminent serious bodily harm, one must conclude that the husband's unlawful conduct made his life less valuable than the life of his wife.
This conclusion is often justified on the premise that because he is a batterer, the abusive
husband has a lesser interest in personal security than the battered wife. In other words, the
husband by virtue of his aggressive nature morally forfeits his right to be free from aggression. See Fletcher, supra note 32, at 305 (discussing moral forfeiture theory). Fletcher believes
that it is very hard to rationalize self-defense based on the moral forfeiture theory. Id. Accord
Fletcher, Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 8
ISRAEL L. REV. 367, 371-73 (noting that moral forfeiture theory makes weighing of interests
difficult); Note, supra note 191, at 608 (analyzing application of self-defense in excuse and
justification); supra notes 202-06 and accompanying text (discussing inherent problems of
moral forfeiture theory).
211. See Fletcher, supra note 210, at 367 (discussing problems arising when aggressor is
psychotic); see also id. at 371-73 (analyzing difficulties presented by application of moral forfeiture theory to nonculpable aggressors); Note, supra note 191, at 608 (concluding that weighing qualitative interests becomes difficult when aggressor does not present imminent danger).
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BATrERED WOMAN'S DEFENSE
51
problem is particularly acute in battered woman's defense cases. If
we sympathize with the women as being victims of their social reality, we must sympathize with the batterers as well. Abusers are not
entirely morally reprehensible. According to psychological and sociological literature, they also are victims of "disease" or of their
social reality. 2 12 This makes it even more difficult for the legal system to determine that the abuser's life is less valuable than his
victim's. 2 13
The most that can be said in battered woman's defense cases, as
in all self-defense cases, is that society is neutral with respect to the
killing. By treating such cases as instances of excuse rather than justification, the difficulties created by weighing qualitative values of
human lives and according a lesser interest to a potentially "innocent" person can be avoided. An excuse analysis would lead to
identical results-acquittal-but do so by focusing on the pressure
21 4
confronted by the defendant and the lack of available options.
It is difficult to identify a positive benefit that accrues to anyone
other than the killer from the taking of an aggressor's life in selfdefense. 2 15 Thus, there is no reason for the law affirmatively to encourage such conduct. To the contrary, classification of self-defense
as a justification may be detrimental to society. The early common
law failed to recognize self-defense as either a justification or an excuse because self-help was inimical to the goal of creating respect
6
for the rule of law and, in turn, for governmental authority. 21
Although lack of respect for properly constituted legal authority is
not generally a problem today, the law still serves a vital function of
2 17
discouraging self-help.
212. See Walker, supra note 133, at 10 (discussing common social patterns and individual
traits that batterers share); Vaughn & Moore, supra note 207, at 420 (explaining that abusers
have essentially same psychological characteristics as victims); Waits, supra note 7, at 286-91
(finding that batterers' behavior arises from both personal and social factors).
213. Fletcher, supra note 20, at 371-73. Cf. Robinson v. California, 370 U.S. 660, 666
(1962) (cruel and unusual punishment clause of eighth amendment prohibits punishing person solely for having disease).
214. See Note, supra note 191, at 625 (contending that excuse theory circumvents need to
rely on either quantification of human life rationale or on comparative quality of human life
theory).
215. Perhaps most telling of this entire question is Glanville Williams' use of the term
"private defence" rather than self-defense. Williams, supra note 25, at 738-42. See also supra
note 193 (distinguishing between "private defence" and "public defence").
216. See supra notes 79-81 and accompanying text (discussing reasons for nonrecognition
of self-defense at common law).
217. See Note, supra note 35, at 627 (discussing self-defense and society's interest in limiting self-help). The traditional rules of self-defense restrict premature self-help by requiring
that defendant reasonably believe that he is in imminent danger of serious bodily harm. Id. at
628. Furthermore, defendant must have no alternative for avoidance of the danger besides a
forceful response. Id.
One's perception of how effectively legal rules can deter self-help depends upon one's view
52
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There are a number of reasons why self-help is contrary to the
interests of modern society. Reliance on self-help tends to diminish
respect for the rule of law.2 18 Self-help in the form of self-defense
carries the additional problem of increasing the quantum of violence in an already violent society. More troublesome is the possibility that the more widespread resort to self-help becomes, the
219
more often innocent people may be killed erroneously.
It is troublesome even when a person who is guilty of a crime
becomes the victim of proper self-help. The constant decline in the
number of capital crimes throughout American history attests to the
general view that only the most vicious of intentional killers deserve
to die for their deeds. 2 20 We cling to the hope that criminals can be
reformed, or at least deterred, if only they are subjected to incarceration, institutionalization, or community corrections. Most persons
killed in self-defense would not have been eligible for capital punishment if duly convicted of their threatened crimes.221 This is parof the purpose of imposing the criminal sanction. Instrumentalists believe that the law is an
effective deterrent of undesirable behavior. Consequently, an instrumentalist who wants to
discourage self-help would favor very narrow, limited justification defenses. A retributionist,
on the other hand, would not believe that strict rules of law discourage self-help. Nonetheless, a retributionist who disapproved of self-help might be equally willing to limit the use of
justification defenses because he would believe that one who engaged in such conduct acted
wrongfully and was culpable. See supra note 55 (comparing retribution and utilitarian theories
of punishment).
218. Conversely, resort to self-help may well be a function of the criminal justice system's
inability to control crime. See supra notes 10-11 and accompanying text (positing that battered
women resort to self-help due to lack of effective law enforcement). Indeed, this may be the
greatest dilemma posed by the battered woman's defense problem. If the system could protect the female victims of abuse from their spouses, the need to resort to self-help measures in
self-defense would never arise. Id.
The belief that the criminal justice system is ineffective in protecting innocent people from
criminal victimization extends far beyond the realm of domestic violence. Increased reliance
on violent measures of self-help is not necessarily the answer. Legal norms that discourage
resort to violence except in the most extreme circumstances of necessity, while encouraging
citizens to concentrate their energies on reporting to and assisting the police, may be more
beneficial. Surely, such policies would promote maximization of the right to life of all people
rather than limiting such rights to law abiding citizens. See Ashworth, supra note 197, at 29092, 296 (discussing need to limit self-help in order to promote police assistance by citizens).
The success of such a policy choice, of course, presumes that the police and other appropriate agencies have the desire and the resources to respond. See generally Waits, supra note 7, at
298-328 (discussing police and prosecutorial reluctance to arrest, charge, and prosecute domestic abusers, and suggesting remedial measures).
219. The possibility that not entirely innocent people might be killed under circumstances
that do not necessitate the taking of life is even more significant. The imminence, necessity,
and equal force requirements for establishing self-defense are designed to preclude errors
and to limit the use of self-defense to situations in which the need to choose between the
aggressor's life or the defender's life is absolutely certain. See supra notes 98-107 (discussing
requirements/elements of self-defense). The tremendous number of cases in which the existence of these criteria is in issue attests to the futility of this effort.
220. Cf. Godfrey v. Georgia, 446 U.S. 420, 432-33 (1980) (refusing to invoke death penalty against husband who murdered wife because husband did not torture or commit aggravated battery on victim).
221. This presumes, of course, that the threats would have been carried out in the first
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BATrERED WOMAN'S DEFENSE
ticularly true of many of the abusive husbands in battered woman's
2 22
defense cases.
The proportionate force, necessity, and imminence prerequisites
for self-defense are designed to quiet the law's uneasiness about encouraging self-help. 223 The requirement that deadly force only be
used to counter deadly force is geared to ensure that the aggressor,
in fact, will commit an intentional homicide if not met with defensive
force. 2 24 One must suffer nondeadly harm if use of deadly force
would be the only way to avoid it. The necessity rule seeks to limit
the use of self-help to circumstances in which there is absolutely no
other alternative to striking back against the aggressor. It is intended to encourage the defendant to seek, in the first instance,
nonviolent or nondeadly defensive means. By requiring strict necessity, it is hoped that use of deadly force in self-defense will be
considered only as a last resort. Finally, the imminence requirement
is meant to restrict self-defense to those situations where there is no
time to turn to actors in the criminal justice system to do their designated job and save the defendant from the need to resort to selfdefense. Relaxation of any of these strict, narrow requirements
raises the spectre of justifying, and thus encouraging, self-help22 5
conduct that the law and society prefer to discourage.
The battered woman's defense requires relaxation of all of these
requirements. 22 6 Rather than limiting the determination of whether
these elements of the defense have been met to very limited, objectively ascertainable circumstances, defenders of battered women ask
the courts to consider circumstances that would be unknown to the
casual observer. Factors such as relative strength, the defendant's
physical training, and the defendant's prior experiences with and
knowledge about her victim are neither external nor objectively
identifiable. Consideration of such circumstances is not compatible
place. Where defendant was mistaken with respect to necessity or the amount of force, this
presumption is particularly troublesome. Arguably, laws that encourage self-help in derogation of a victim's right to life create deprivations of constitutional significance.
222. Unfortunately, few abusers are convicted for their crimes. When the abuser does not
expressly threaten death, he may not be punished. See supra note 158 (discussing lack of law
enforcement efforts against abusers).
223. Note, supra note 35, at 628. Whether the rules effectively accomplish that goal is
beyond the scope of this Article.
224. Even most intentional homicides will not be punishable by death. See Godfrey v.
Georgia, 446 U.S. 420, 432-33 (1980) (limiting death penalty to "outrageously or wantonly
vile, horrible and inhuman" crimes).
225. See Note, supra note 35, at 627-28 (balancing right to self-defense and society's commitment to due process). See generally supra notes 118-24 and accompanying text (discussing
policies behind limiting availability of recourse to self-defense).
226. See supra notes 158-63 and accompanying text (listing feminists' assumptions in support of relaxation of self-help limitations).
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with the notion of self-defense as behavior that is justified and
227
should be encouraged.
Even more worrisome, however, is the assumption underlying the
battered woman's defense that self-defense is necessary in some situations-even when the threatened attack is not imminent-because
228
the criminal justice system has not adequately protected women.
This assertion supports the feminist demand that the concepts of
imminence and necessity be broadened. Yet, it is exactly this notion
that the law must suppress. For the logical corollary is that any person who believes, reasonably or unreasonably, that the criminal justice system does not offer adequate protection can resort to selfhelp even though there may have been sufficient time to summon
the aid of lawful authority. Even when we understand the actor's
unusual need to resort to self-help, the actor's behavior may still be
dangerous to society. 22 9 If self-defense is a justification and ifjusti-
fied conduct is conduct we consistently encourage because it benefits society whenever similar circumstances arise,2 3 0 the defense
cannot rationally be expanded to encompass the battered woman's
defense. 23 ' Indeed, it may be that if those who suffer from battered
woman syndrome or other psychological trauma induced by their
social reality are more likely to kill in self-help, the criminal law
should be doing even more than it currently does to prevent them
from doing so.232 Domestic abuse is a serious societal problem but
227. See supra notes 31-37 and accompanying text (discussing use of subjective standards
in justification).
228. See supra note 158 and accompanying text (discussing lack of police protection as
reason for relaxing self-help standards).
229. See Note, supra note 35, at 628-29 (discussing legal system's interest in limiting selfhelp for battered women).
230. See supra notes 31-37 and accompanying text (discussing social desirability ofjustified
conduct).
231. Cf. Alldridge, supra note 25, at 666 (concluding that "[a) coherent defense cannot
contain elements the rationale of which is that D was a responsible actor, together with elements whose rationale is that D was not.").
232. See Donovan & Wildman, supra note 21, at 437-38. Donovan and Wildman offer the
hypothetical case of a black man who had been the target of harrassment and who shot a
police officer under the mistaken belief that the officer was a burglar. Id. The victim in a
battered woman's defense case is not as likely to arouse our sympathy. However, unless the
defense is limited to only battered women-a limitation that even the defense's advocates do
not desire-the principles established in battered women's cases can be expanded easily to
cases involving other types of extraordinary but understandable fears where the loss of a totally innocent life is much more likely. See id. (discussing instances when self-defense may lead
to death of innocent person).
The law of self-defense traditionally works to protect innocent victims by requiring individuals to be aware of their particular unusual fears and to compensate for them when evaluating
circumstances that give rise to those fears. The law accomplishes this objective by narrowly
defining the time period in which prior events can be considered to explain the actor's allegedly justified behavior. Although this limitation effectively may ensure that people who are
more sensitive than others to certain innocent behavior will not endanger innocent persons, it
also results in conviction of persons for criminal conduct for which they cannot fairly be
1986]
BATTERED WOMAN'S DEFENSE
promotion of vigilantism is certainly not the solution.2 33 Treatment
of self-defense as an excuse allows the judge to make a determination that it would be unjust to convict the defendant while at the
same time avoiding a determination that defendant did the right and
just thing and the consequent risk of increasing the quantum of vio234
lence in an all too violent society.
Just as the early common law's difficulty with condoning self-help
has survived into late twentieth century America, the conflicting recognition that an individual whose life is threatened cannot be expected to die meekly also has survived.2 3 5 When self-defense is
categorized as an excuse, it reflects the community's understanding
that, under all the circumstances, the defendant understandably believed that she had no option but to kill or be killed. 2 36 Although
self-help should not be affirmatively encouraged, the pressure to resort to self-help can be understood. A person who submits to these
pressures is not culpable and should not be convicted of any
2 37
crime.
blamed because of "disabilities" for which they are not responsible. See supra notes 72-77
(discussing Robinson's theory of disabilities). In recent years, the law of self-defense has
moved toward utilization of a more subjective standard that takes a wider range of surrounding circumstances into account and allows the fact-finder to judge the reasonableness of defendant's fears given defendant's special sensitivity. Donovan & Wildman, supra note 21, at
445. This approach, however, encourages acts that inflict social harm.
233. R. TONG, supra note 210, at 206.
234. See supra notes 32-37 and accompanying text (discussing social desirability ofjustified
conduct); cf. Fletcher, Individualization,supra note 25, at 1285 (making a similar argument for
proposition that necessity should be treated as excuse in prison escape cases).
235. See Donovan & Wildman, supra note 21, at 455 (stating that society understands response of killing rather than being killed).
236. See id. at 455-56 (concluding that society allows killing in name of self-defense); cf.
Note, supra note 35, at 630 (suggesting that jury nullification of traditional law of self-defense
in battered women's cases illustrates society's need to excuse women's conduct as self-defense
because it is partially determined conduct). One's position in the debate between free will
and determinism is not relevant to the argument in this Article that battered women's cases
illustrate the need to categorize self-defense as an excuse. This author's thesis presumes that
modern Anglo-American criminal law must accept the fact that people are influenced by their
environment and experiences. Accordingly, if people are affected in a way that creates understandable alterations in their perceptions of reasonableness, they cannot fairly be blamed
when they cannot shed these experiences in the face of a perceived threat to their safety.
Although physically voluntary, their actions may not be morally voluntary and they should not
be punished. At the same time, a criminal charge indicates to the public that there is some
question regarding the propriety of their conduct and that similar acts committed under the
same objectively identifiable circumstances are not permissible.
237. Mental instability created by the unbearable situation understandably may have influenced perceptions of pressure. Current law only allows us the option of mental health treatment as opposed to punishment or acquittal if the defendant meets the narrow legal definition
of insanity. Many persons who are not legally insane suffer from treatable mental illness or
from emotional difficulties. This may be true of some people who establish claims of excuse.
At least one author has suggested that it may be appropriate to retain some collateral consequences of conviction, such as requiring treatment, as potential dispositions for defendants
who establish claims of excuse. See Robinson, supra note 24, at 285-91 (suggesting alternative
sanctions for excused defendants).
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CONCLUSION
Battered women who kill their abusers in perceived self-defense
present a special challenge to the criminal justice system, especially
to the evolution of the law of self-defense. Although self-defense
first appeared in the common law as an excuse, in the twentieth century it has been classified as a justification. Justified conduct is
otherwise criminal conduct that under particular external, objectively identifiable circumstances did not harm society. Under these
circumstances it was the exact opposite of a discouraged criminal
act; it was an encouraged desirable course of conduct. Few cases in
which self-defense is claimed, however, fit the model of a justification. The problem is that self-defense constitutes self-help, and
self-help is inimical to the rule of law.
Battered woman's defense cases are illustrative of this policy conflict. Often battered women use deadly force in self-defense under
external circumstances where their act is not objectively reasonable.
The woman's status as a battered woman makes her resort to deadly
force understandable; it is subjectively reasonable. It is, therefore,
easy to conclude that the woman is not to be blamed for her actions
and should not be convicted of homicide. To hold that she acted in
self-defense, however, is a determination that her act was justified.
To justify such conduct may result in the encouragement of selfhelp as the preferred solution to domestic abuse. On the other
hand, to convict or to excuse women who act in self-defense is to
treat women as inferior to men whose defensive acts are justified.
The solution to this dilemma is to return self-defense to its original theoretical basis as an excuse in all cases. Excuse recognizes
that, even though self-help may not be desirable and may harm society, such conduct often results from a person's understandable inability to choose an alternative course of action due to
overwhelming external or internal pressures. Treatment of self-defense as an excuse accomodates the defensive needs of battered women and other individuals who act in subjectively reasonable fear
given their social reality. It allows the fact-finder to consider the
defender's subjective beliefs without risking the possibility that all
bona fide defensive acts, no matter how objectively unreasonable,
will be condoned by the criminal law. Concomitantly, it furthers the
criminal law's goals of preserving life and discouraging self-help.