© 1998 Griffin

In 1992 the A.M.A., backed by the Surgeon General, declared that violent men constitute a major threat to women's health. Between 22% and 35% of all visits by females to emergency rooms are for injuries from domestic assaults (Gibbs 41). In 1991, four million women were beaten and 1,320 were murdered by their male partners (Booth 41). More American women are likely to be injured by the men in their life than by car accidents, muggings and rapes (by strangers) combined (41). Additionally, women who live with their husbands and children are at greater risk of being murdered than women who live alone (Radford 10). Women who kill their batterers are usually acting in the sincere belief that their action is necessary to prevent death or serious injury and the above statistics confirm the validity of this belief. However, women who kill their abusers are likely to receive harsher treatment from the law than men who act in self defense against strangers. Furthermore, men who kill their wives in anger generally receive a lesser sentence than women who kill in self defense. For example, even today the average manslaughter sentence a woman who kills her mate receives is 15 to 20 years while men who kill their mates receive 2 to 6 (Booth 42). Even the letter of the law upheld this bias until very recently: for example, until the 1970's an aggravated assault against a stranger was considered a felony while assaulting a [female] spouse was considered a misdemeanor (Gibbs 41). The masculine assumptions inherent in the law and those who uphold it continue to disallow equal justice for women.

The laws that judge battered women discriminate against them because they embody masculine assumptions about the circumstances under which a woman has the right to defend herself. Equally problematic are society's biased attitudes regarding women's behavior and its acceptance of violence against them. Even when clearly acting in self defense, the law of justifiable homicide can not be made to fit the kinds of situations in which battered women find themselves because it does not take into consideration their unique circumstances. Even so, new laws do not need to be created for women or, specifically, battered women. The justice system, however, does need to find ways to fairly extend existing laws to women who must kill in order defend themselves from their batterers. This paper will contextualize the battered woman's legal situation within the larger scheme of legal discrimination and will analyze the ways in which our judicial system's laws and assumptions discriminate against battered women. Further, it will suggest solutions to the specific legal problems that battered women face in the courtroom.

The law, in its self proclaimed objectivity and neutrality, is thought to judge all people equally. The conventional legal view is that the law does not function with one type of individual in mind. The law however, is not neutral and functionally judges women defendants against a standard archetype of a very specific type of person. This model person is a male, financially secure, educated and middle-class. He is a "reasonable man" with a healthy sense of rivalry, he has knowledge of his own rights and understands how to stay within the limits of acceptable behavior. His behavior is restrained and calculating and the law respects his individualism. This middle class man is successful as a man and thrives in the competitive marketplace. The law values and protects his interests and offers a style of justice that mirrors his personal style. "Law and the man of the law are simpatico" (Naffine 7). This archetypal man of the law exists in stark contrast to the woman who is in effect omitted from the this legal model of humanity. The law therefore has failed to accommodate women in its legal model of humanity (8).

The model "man of the law" excludes and therefore disallows justice for women in many kinds of legal situations. In order to better understand the problems inherent in the way that our current judicial system is especially biased against women who kill their batterers, it is also necessary to understand the historical development of the law. While the law of self defense has evolved over some nine centuries, throughout this time its basic premise has changed very little (Gillespie 31). In 1532, Henry VIII established that once killing was deemed necessary as an act of self defense, it was not considered a crime at all. Persons who committed such an act were rarely required to stand trial and if they were required, they usually received an acquittal (33). It is important to note that the judges, juries and defendants in most of these cases were male. These cases usually involved situations in which men were likely to find themselves, and the excuses they offered made sense in terms of acceptable masculine behavior. In contrast, a wife owed her husband obedience, "If he killed her in cold blood, it might be murder; but if she killed him, she was guilty of treason" (37).

Many characteristics of these medieval laws apply to this day. One justification for killing in self defense was a sudden murderous assault which today is viewed as the imminence requirement. Understanding that much of the development of the law took place before firearms existed, and because robbing often involve a murderous attack with a large rock or some other deadly object, it was therefore not unreasonable to assume that the outcome of physical attack would be death. Therefore, the innocent victim set upon by someone intending to commit a violent crime could kill his assailant on the spot (38). Another premise on which our modern law is based is called the "against the wall law" which today is part of the requirement to retreat (38). This law originated in a medieval era where men commonly carried swords and knives and an argument might easily escalate into a deadly combat. This law defines killing as justifiable if the person who found himself in danger retreated until an impassable barrier or "wall" made further retreat impossible. This law later came to be defined more symbolically and required a retreat to any position of safety: only if none were available, was killing in self defense justified.

The only exception to the requirement of retreat was the "castle doctrine." Because the safest place a man could find himself in those dangerous days was his own home or castle, a man being attacked was therefore not required to retreat to find safety elsewhere (39). These laws have been modified, but not to a great extent. Hundreds of years later, the situation of a woman battered in her own home fits neither that of an assaulted stranger or that of a fight among equals. And yet, unfairly enough, the castle doctrine does not usually apply. Hence the inevitable question; "Why didn't she leave?".

The western frontier created additional self defense situations for the law to address. The introduction of the Colt revolver in the 1840's meant that killing people required neither size, strength, or, with six tries, even considerable marksmanship. Firearms created different circumstance for the law to address and the law maintained that it was not justifiable to use a gun to kill an unarmed man. Fists were to be defended against with fists and unless a man were attacked with a gun he could not use a gun to defend himself (43). This precept of a fair fight among equals is imbedded in the law which consequently harshly judges women who shoot the unarmed men who batter them. The laws mentioned above continue to influence self defense trails and have not become responsive to the unique circumstances in which today's battered woman finds herself.

Discrimination in the Modern Application of Law

On the surface, the law of self defense does not discriminate. Its modern application, however, treats men and women quite differently. The law judges defendants according to a manly standard of reasonable, honorable behavior that generally does not apply to the kinds of circumstances in which women find themselves. Too often, the law cannot be made to apply to a woman's actions even when there is no question that she is justified in her belief that she is in imminent danger. Thus, the application of the law effectively deprives women of the same right to self defense that historically men have always been entitled to because it does not take into consideration the battered woman's unique circumstances (50).

We have seen that the notion of a fair fight among equals heralds from frontier law, and means that an assault with the hands, fists or feet does not ordinarily constitute a threat serious enough to justify killing an attacker in self defense (51). Statistics reveal however, that many male abusers do use their hands, fists and feet with serious or deadly results. Therefore, it is logical to assume that a battered woman who kills her abuser commits a "reasonable" act of self defense. For example, a comprehensive study of female homicide victims in Philadelphia revealed that, of the 41 percent of women who were killed by their husbands and the 21 percent killed by their by their boyfriends, one-quarter of the women died by the use of hands, fists or feet (52). Despite these statistics, the law does not believe that an assault by an unarmed assailant is sufficiently dangerous to allow for a plea of self defense. The battered woman who faces an abusive partner is not engaging in a fair fight among equals because, while it is unlikely that she could kill him without weapon, he can kill her. Consequently, physical inequalities create a situation wherein a woman engaged in a fight with a man needs a weapon to make the fight fair.

The imminence requirement can turn a life and death situation into a game of timing. Even if an abuser has beaten a woman, caused serious injury time and time again and threatened to kill her, she cannot legally kill him unless he is actually attacking her at the time she kills him (83). This creates a problem for women who shoot their husbands through the doors of their homes, even if they are trying to break in and are threatening to commit murder. This requirement can also cause especially serious problems for a woman, if she must use the element of surprise in order to gain an advantage. For example in cases where a women , after years of abuse and escalating threats on her life, kills her husband while his back is turned. Presumably, if women waits until her attacker gains entrance and is in the act of murdering, self defense is justified, providing that he doesn't kill her first. The difference between justifiable homicide and nearly a quarter of a century behind bars can be determined by a matter of minutes, even seconds. A woman who has been repeatedly battered often learns to recognize the signals that build to a dangerous assault, but however reasonable she thinks her response may be at the time, the jury may not find her to have acted in legal response to an imminent danger.

Remembering that duty to retreat puts the burden on those engaged in a fight to back off rather than kill each other, this rule further complicates the imminence requirement and creates a complex dilemma for the woman who kills her batterer (78). In a sense, it forces a woman to leave her own home because it requires that she try to escape from their attacker. The requirement for the person being attacked to find an avenue of retreat wherever possible is a significant factor in a jury's assessment of the legality of a woman's actions (79). Because most battering takes place in the home and most frequently at night, the battered woman who finds herself with no support system, no money, children to protect and a homicidal man in pursuit does not logically have the option to run (80). If she does retreat, she will only have to return to the house to face a wrath greater than the one she is seeking to escape.

Additionally, the duty to retreat has the effect of forcing women to take a beating because batterers who attack their spouses do so not to settle differences, but to punish. The situation of a battered woman cannot logically be compared to an ordinary fight between two men, because in the latter case, acquiescence of one to another tends to diffuse the situation by admittance that "the other guy is right." In the woman's situation, attempting to diffuse the situation by submissive or conciliatory gestures, may lead to an escalation of violence, not an end to it. This is because the submissive women is not saying "Let's not fight," she is in effect saying, "Go ahead and beat me; I won't resist" (79).The most common question one hears in a discussion of battered women is "why didn't she leave?" The real question should be "why didn't the batterer let her go?" In summary, we see that there are particular precepts of modern law which, in an unwritten sense, expect a woman to submit to abuse and, in a textual sense, commonly find the actions of a woman who acts in self defense as unnecessarily violent.

Linda Anya was beaten, kicked, stabbed, mutilated with a chisel and struck hard enough on the head to receive a concussion. Five times she required medical treatment. The prosecutor argued to the jury that these injuries were all part of a "loving game" and that consequently she had no reason to fear him...GUILTY of manslaughter.

Sexist attitudes in the courtroom further compound the problems inherent in the masculine assumptions and biases of the law discussed above. Even though anywhere from one-third to a half of female murder victims are killed by their spouses and lovers, women who defend themselves have become the focus of controversy because their actions are viewed as more extreme (Booth 41). Men who kill in self defense are seen as acting in a "normal" male fashion, whereas women who kill are often seen by society as masochistic, lying, calculating or vengeful women. Further, the trial "courtroom provides a forum for a biased or cynical prosecutor to [present] every myth and stereotype...that would encourage the jurors to ascribe the worst possible motive to her actions" (Gillespie 22).

Consequently, prosecutors use the masculine assumptions of the law and the bias of society in order to convict women of murder when they have been acting in self defense to a real threat upon their lives. Prosecutors know that they can get juries to convict women in circumstances under which they would not convict men (22). The misinformed bias of society allows the prosecutor to convince the jury that even if her story is true, her perception that she was in serious danger is untrue or that she is exaggerating or lying about her claims of abuse. A prosecutor may argue to the jury that if the woman had been abused as she claimed then she would have left long ago. A prosecutor may also claim that the woman would have called the police, and there would therefore be a record of her call. Prosecutors therefore use the isolation that is frequently imposed on a battered women against her. They claim that she would have told a friend, a neighbor, her minister or mother, which disregards the myriad of ways in which battered women seek to hide their perceived humiliating situation. If she drank with the man whose violence was accompanied by heavy drinking she is accused of exacerbating her situation, and is therefore not entitled to defend herself against it. Another common accusation is that the woman is a masochist who invites and somehow enjoys the brutal treatment she receives and therefore could not possibly have been motivated to kill because of fearing more of it. A prosecutor may even go so far as to accuse a woman of exaggerating her condition with cosmetics (24). In this way, the prosecutor tries to convince the jury that the woman's reaction to the violence was unreasonable and that therefore she used unnecessary violence in order to defend herself.

If the husband's abuse is proved beyond a doubt, the prosecutor may then argue to the jury that she killed him with a motive for revenge. If she is hysterical when she calls the police, it is the act of a person who is out of control; if she is calm, prosecutors claim it is a calculated, cold blooded murder. Often the prosecutor's accusations arise from the assumption that if a woman kills a man with whom she has been intimate, she must have some hidden motive for her actions. This accusation of lying about her motives is at the center of almost every prosecution of a woman's self defense case (25). Further compounding the problem, her own defense lawyer may also be a victim of these same deadly stereotypes and may, like the prosecutor, believe that she is guilty of using unnecessary violence. A defense lawyer who unconsciously holds these discriminatory attitudes may view a conviction of manslaughter as a victory, and therefore may advise a defendant to accept a conviction of manslaughter without making her aware of other avenues of defense that are available (25).

I recall a chilling conversation with a former judge, an avowed feminist, who argued that battered women were in need of counseling; thus, finding the defendant guilty and putting her on probation was an effective way of ensuring that she would get it. An acquittal, on the other hand, would effectively put her beyond the reach of the courts benevolence.

We have seen how the unique situations in which women find themselves are used against women by prosecutors and not understood by the defense. Likewise, judges hold the same prejudices and lack of informed decision making that the prosecutors and defense lawyers share. Although it is the jury who decides the fate of a battered woman, judges instruct the jury on the application of the law and therefore have a significant influence on the outcome of a trial. Some judges have refused the jury the option of finding that the defendant is guilty of manslaughter or acting in self defense, and because there is no question that the woman pulled that trigger, such refusals leave the jury no choice but to find the defendant guilty of murder (Gillespie 28). In some cases juries are instructed, in accordance to the precept of a fair fight among equals, that they must find a killing unjustifiable when it is in response to an unarmed attack (54). Even if a judge does inform the jury on the application of self defense, the instruction he provides may not allow the jury the ability to fit the facts to the case at hand. For example the "castle doctrine" which states that a women is not required to leave her home, is usually not explained to the jury. Further, the judge may not allow evidence of past abuse which is essential in order for the jury to understand the battered woman's situation. Finally, a judge may also refuse to allow expert testimony which in the case of battered women is essential in order for the jury to understand the circumstances in which the defendant finds herself. Judges therefore, have a significant impact on the outcome of a trail, and if they do not allow all the facts to be presented, a woman has little chance of her actions to be viewed as justifiable homicide.

We have seen how the attitudes of prosecutors, defense attorneys and judges work against women. In the same way, the interactions of law and bias serve to work against justice for women. Women who kill their batterers are not unreasonable in their belief that killing in self defense is justified. In 1991 for example, 4 million women were beaten and 1,320 were murdered by their male partners and yet women are labeled as crazy for fighting back (Booth 41). The law is unable or unwilling to recognize the circumstances that turn victims into defendants. If a woman has the courage or fear necessary to stand up to her abuser, once in the courtroom she faces a stacked deck. Men hold an age old belief that in an intimate relationship their rights supersede that of their female partners. This belief is supported by religion, social customs and the law. We have seen how our system of justice has inherited laws from an English system created by men. However this is not necessarily common knowledge and therefore one tends not to realize that common expressions such as "the rule of thumb" came originally from a system that upheld a man's right to beat his wife as long as the implement he used was no bigger than his thumb. It is interesting, and frightening to note that this statute remained on the books in some states until only recently (Walker 236). Such sexist statutes point to the bias that is still subliminally and irrevocably intertwined throughout our modern justice system.

Rulings in American courts continue to uphold these sexist marital standards of violence with a kind of benign neglect. Police action, or lack of it, in response domestic violence calls reflects this attitude. Additionally, only if a woman's injuries are severe or permanent may she be "lucky" enough to escape prosecution (237). Batterers believe that they have the "right" to discipline women, and the attitudes of those who uphold the law reflect this belief. The marginal position of women in society is one reason why they are judged harshly when they fight back against their oppressors. Stereotyping adds to this problem, because women who fight back are not conforming to a white middle class standard of feminine conciliatory behavior. Conversely, if the woman is black the stereotype of the strong black woman can also used against her. For example, in one case of a professional black woman who had killed her abuser, the prosecuter led the jury in the following pattern of thinking; "If you are a black woman, you must be strong, and if you are strong, you can't be battered" (Kandel 89). Juries do not expect a battered woman to be violently angry, therefore a woman's courage and anger, because they are not the "usual" modes of behavior for a women, can be used against her. Additionally, because women tend to see events in patterns rather than individual incidents, a woman's way of describing the world is also often at odds with the descriptive process required in the courtroom (Walker 256). Women often have trouble when judges or lawyers direct women to stick to the facts. Their own perception of the truth exists on a continuum, and they often have difficulty separating individual incidents from the general theme of their lives. These problems direct us to the importance of allowing expert testimony in order to counteract unfair perceptions of women and their actions in cases of battered women.

The Need For Expert Testimony