In legal cases involving battered women who kill their abusers, the defendants often admit to the murder and reveal a history of physical abuse. The charge is usually first- or second-degree murder, which is murder with malicious intent either with or without premeditation. The outcome of these trials depends on three main issues: self-defense, equal force, and imminent versus immediate danger. Expert witnesses are crucial in an abused woman's trial to explain how these issues are different for cases involving battered women than for other homicide cases.
Women often plead that they killed in self-defense, a plea that requires proof that the woman used such force as was necessary to avoid imminent bodily harm. Self-defense was originally intended to cover unexpected attacks by strangers and did not take into account a past history of abuse or a woman's fear of renewed violence. Traditionally applied, a self-defense plea does not exonerate a woman who kills during a lull in the violence, for example, when the drunken abuser passes out.
Many observers feel that self-defense law is problematic, inadequate, and/or not appropriate for use in self-defense cases of battered women, according to Diane Follingstad et al. in "The Impact of Elements of Self-Defense and Objective versus Subjective Instructions on Jurors'Verdicts for Battered Women Defendants" (Journal of Interpersonal Violence, vol. 12, no. 5, 1997). Traditionally, self-defense permits an individual to use physical force when he or she reasonably believes it is necessary to counteract imminent or immediate danger of serious bodily harm. Furthermore, a person must use only a reasonable amount of force to stop the attack and cannot be the one who provoked the encounter or initiated the violence. To justify the use of reciprocal deadly force, most jurisdictions require that the defendant reasonably believes the attacker is using or is about to use deadly force. Some jurisdictions further require that before resorting to deadly force, the defendant must make an effort to retreat, although this is not required in most courts if the attack took place in the defendant's own home.
Advocates of battered women have succeeded in convincing many courts to accept a subjective standard of determining whether a battered woman who killed her husband was protecting her own life. This concession allows the court to judge the circumstances of the crime in relation to the special needs of battered women and not according to the strict definition of "self-defense." This looser definition is especially important for women who killed during a lull in the violence, because a strict interpretation of "imminent danger" does not provide legal justification for their actions.
A subjective standard asks a jury to understand what is reasonable for a battered woman. Susannah Marie Bennett, in "Ending the Continuous Reign of Terror: Sleeping Husbands, Battered Wives, and the Right of Self-Defense" (Wake Forest Law Review, 1989), explained the critical difference as viewing the appearance of danger subjectively, from the perspective of one who saw and knew what the defendant saw and knew. An objective standard still governs whether a reasonable person, in similar circumstances and with the same perceptions, would also have acted in self-defense. This is the "hybrid" definition of self-defense that supporters of battered women encourage the courts to adopt.
According to Gena Rachel Hatcher in "The Gendered Nature of Battered Woman Syndrome: Why Gender Neutrality Does not Mean Equality," in order for this hybrid definition to work, the court must first be subjective in understanding the woman's circumstances. Next, it must be objective in deciding that, given the situation, she truly did act in a reasonable manner (New York University Annual Survey of American Law, 2003). Courts have already accepted the notion that self-defense does not require perfect judgment in a violent situation, only reasonableness. Justice Oliver Wendell Holmes, in Brown v. United States (1921), said "[d]etached reflection cannot be demanded in the presence of an uplifted knife." Battered women and their advocates have asked the courts to revise their definitions of imminent danger and proportionate force in cases involving domestic violence.
Self-defense permits the use of equal force, which is defined as the least amount of force necessary to prevent imminent bodily harm or death. Women, however, who are generally physically weaker than men and who know the kind of physical damage their batterers can inflict, may justifiably feel that they are protecting their lives when shooting unarmed men. In State v. Wanrow (1977), the Washington Supreme Court ruled that it was permissible to instruct the jury that the objective standard of self-defense does not always apply.
Yvonne Wanrow was sitting up at night fearful that a male neighbor, who she thought had molested the child in her care, was going to make good on his threats to break into the house where she was staying. When the large, intoxicated man did enter, Wanrow, who was incapacitated with a broken leg, shot him. The court ruled, "The respondent was entitled to have the jury consider her actions in the light of her own perception of the situation, including those perceptions that were the product of our nation's long and unfortunate history of sex-discrimination…. Until such time as the effects of that history are eradicated, care must be taken to assure that our self-defense instructions afford women the right to have their conduct judged in light of the individual physical handicaps that are the product of sex discrimination. To fail to do so is to deny the right of the individual woman involved to trial by the same rules that are applicable to male defendants."
Imminent versus Immediate Danger
Traditionally, self-defense required that the danger be immediate, meaning that the danger was present at the very moment the decision to respond was made, in order to justify the use of force, as noted by Kimberly Kessler Ferzan in "Defending Imminence: From Battered Women to Iraq" (Arizona Law Review, 46, Summer 2004). Accepting imminent danger, or danger that is about to occur, as justification for action permits the jury to understand the motivations and dynamics of a battered woman's behavior. A history of abuse may explain why a defendant might react to the threat of violence more quickly than a stranger would in the same circumstances. In Wanrow, the Washington Supreme Court found that when the jury considered a woman's actions based on immediate danger, it was required to focus only on the time immediately before the defendant's actions. "It is clear that the jury is entitled to consider all of the circumstances surrounding the incident in determining whether [the] defendant had reasonable grounds to believe grievous bodily harm was about to be inflicted," the court wrote.
Lenore Walker observed in Terrifying Love: Why Battered Women Kill and How Society Responds (New York: Harper and Row, 1989) that it is often hard for a jury to understand how a woman can be continuously afraid of a man with whom she lives. Walker insisted, however, that her own research and that of others had repeatedly demonstrated that battered women know their abusers' potential for violence and live in constant fear, even when they have developed coping skills that enable them to continue living with their violent partners. Fully 85% of the four hundred battered women Walker interviewed felt they could or would be killed at some time by their abusers.
Juries and Expert Testimony
Whether a woman will be convicted depends largely on the jury's attitude, or the judge's disposition when it is not a jury trial, and the amount of background and personal history of abuse that the judge or jury is permitted to hear. Juries that have not heard expert witnesses present the battered woman defense are often unsympathetic to women who kill their abusive partners.
Regina Schuller et al. in "Jurors' Decisions in Trials of Battered Women Who Kill: The Role of Prior Beliefs and Expert Testimony" (Journal of Applied Psychology, vol. 24, no. 4, 1994) found that jurors who learned about battered woman syndrome from expert testimony were more likely to believe the defendant feared for her life, that she was in danger, and that she was trapped in the abusive relationship. Equipped with knowledge and understanding of battering and its effects, jurors handed down fewer murder convictions than were issued by a control group of jurors who were not given this specialized information.
Using mock jury trials, Schuller et al. examined whether a potential juror's belief in a "just world" would influence how he or she receives and responds to expert testimony. A strong belief in a just world would lead a juror to reason that a person deserves his or her fate. Persons holding strong "just world" beliefs would decide that when a woman is abused, she must be responsible for the beating in some way or she must deserve and share responsibility for the outcome. The study found that women who did not accept the concept of a just world were especially receptive to, and influenced by, expert testimony. Men, however, independent of their beliefs, were generally more resistant to the influence of expert witnesses.
When judges opt not to permit expert testimony, it is frequently because they do not wish the expert to influence jurors about the specific circumstances and details of the case. In some states, an expert witness is only permitted to speak generally about battering and its effects and may not comment about the individual woman on trial. On the other hand, some states permit the expert to express an opinion on the ultimate question of whether the battered defendant's behavior was reasonable in view of her circumstances.
A CASE STUDY: STATE V. NORMAN. In State v. Norman (1989), the North Carolina Court of Appeals overturned a lower court's verdict of voluntary manslaughter for a woman who fatally shot her husband while he was sleeping, because the original court had failed to instruct the jury on self-defense. In the final appeal, however, the North Carolina Supreme Court reversed that opinion and reaffirmed the validity of the first court's traditional objective standard of self-defense, resulting in a conviction of voluntary manslaughter. Kimberly Kessler Ferzan discusses the case in "Defending Imminence: From Battered Women to Iraq," cited above.
The defendant, Judy Norman, had been continually abused during her twenty-five-year marriage to her husband, J. T. He had beaten her with every available weapon, forced her into prostitution, and required her to eat dog food from a bowl on the floor. He had thrown her down stairs when she was pregnant with their youngest child, causing her to give birth prematurely, and often threatened to "cut her heart out" or "cut her breast off." Dr. William Tyson, an expert witness at the trial, characterized her situation as "torture, degradation, and reduction to an animal level of existence where all behavior was marked purely by survival."
On this final occasion, J. T. was arrested for drunk driving. After his release from jail, he came home to vent his anger on his wife, beating her repeatedly over thirty-six hours. In the past, Judy had gone to Mental Health Services and the Department of Social Services for help, but her husband had always come to get her, reaffirming her belief that her husband was invulnerable to the law. In her mind, the only choices left were to kill him or to die.
The defense relied heavily on expert testimony about battered woman syndrome and the theory of learned helplessness. The court ruled that reasonable, deadly fear is not only theoretically possible, but also real, and may have been present in Judy's mind. Susannah Marie Bennett, in "Ending the Continuous Reign of Terror" (cited above), applauded the court of appeals decision to accept the special circumstances of battered women, asserting that, by recognizing self-defense as a concern, the court validated the view that a defendant may reasonably fear imminent harm from a sleeping person.
But Bennett argued that the court of appeals was wrong to claim that "therefore, a battered spouse who kills a passive abuser can satisfy the traditional elements of self-defense under an objective analysis." Bennett pointed out that the imminency requirement may stop the woman from employing the right of self-defense at the one time it would work: when the abuser is passive. Instead, the rule directs the woman to wait until she could be completely defenseless—during or just prior to a battering incident—before she can justifiably save her life. Thus, the court essentially recognized that the requirement of imminent danger may be met by events outside of an actual attack or a threat of attack, but only in the special circumstances of battered spouses. This recognition, Bennett contended, is a monumental exception to the general principle of self-defense.
By accepting this definition of self-defense, the court cannot claim to have used an objective standard. Bennett suggested that the reason the North Carolina Supreme Court overturned the court of appeals decision was because the latter court may have tried to mask its move to subjectivity and that it would have been better off to admit that it was relaxing its standard in order to accommodate killings that do not objectively meet traditional self-defense criteria.
Bennett concluded that instead of adhering to outdated concepts and a rigid interpretation of self-defense, the court of appeals made an honest effort to take up the legal aspects of spousal abuse. The court demonstrated significant insight by recognizing the plight of victims of battering—a predicament created by the deadly combination of battering and its effects and strict judicial adherence to standards that were never intended to address such situations. Accordingly, the court ruled with a compassionate and insightful opinion that is part of a growing trend in self-defense law.
On July 7, 1989, North Carolina Governor James G. Martin commuted Judy Norman's six-year manslaughter sentence to time she had already served.