The Need for Expert Testimony
The jury was enabled [by expert testimony] to understand that JoAnne's perception that she and her children were in serious, ongoing danger was a reasonable one and that from her point of view, the only way to she could realistically defend them and herself from further harm was to seize the opportunity when her husband was off guard...NOT guilty.
We have seen that the woman who kills her batterer faces a prosecuter who uses every myth, stereotype and unanswered question; for example "why didn't she leave?" at his disposal to frame a woman as a violent murderer. In addition, they are subject to bias inherent in the law itself and may be subject to sexist attitudes on the part of judges, and their own defense attorneys. These factors are further compounded by the fact that the courts often disallow expert testimony that would counter problems such as these and allow juries to understand the economic repression, fear, and other circumstances that do not allow for women to leave in the first place. In order for a woman to receive a fair trail, she must be judged by an informed jury. For example, we know that it is essential for a jury to be informed that a woman's has the legal right not to leave her own home in order to escape her attacker, otherwise, an acquittal on the grounds of self defense is unlikely (Walker 260). Similarly, our legal system has recognized many cases which require expert testimony in order for juries to understand circumstances which are beyond common knowledge and in which defendants find themselves. Expert testimony in trials of battered women can be extremely important in order to shed light on the reasonableness of the battered woman's behavior. It can help the jury to understand how widespread domestic violence is, which can then help counter the disbelief that men ever treat women in such a violent and abusive manner. Expert testimony can explain why women do not leave, tell anyone or get help; which serves to counteract the duty to retreat. A battered woman has a better idea of what is in store for her than a dispassionate bystander and the jury needs to understand this fact. Describing the patterns of abuse can allow the jury to understand the situation the way that the battered woman sees it and can therefore help them to understand the reasonableness of her actions (Gillespie 159). Unless the defense is allowed to educate the jury by means of expert testimony, they will invariably fall back on what they know, which is predictably based in myth and stereotypes. The battered woman needs to be judged by a jury that is fully informed regarding the conditions she faced, otherwise they will be unable to understand the reasonableness of her response. Although opponents of the battered woman's defense think otherwise, battered women are not asking for special treatment. Battered women merely require the same right that under our system every defendant is guaranteed; the right to the most effective defense possible. Therefore, expert testimony is essential in order for a woman to receive a fair trial. While we understand that the reasons why women do not leave their abusers need to be explained to a jury by means of expert testimony, the constraints of this paper do not allow for a discussion of the multitude of reasons why women do not leave, seek or receive lawful protection from their batterers. These reasons are the subject of many comprehensive books on the subject, some of which are listed in the works cited at the end of this paper. However, there is nothing in the law of self defense that requires a woman to leave her marriage or relationship. Just because a battered woman does not leave, does not mean that she waives her legal right to self defense (Gillespie 188). The above discussion outlines that one of the main problems with the law is that women are judged in comparison with men who kill in self defense of strangers. The situation of a woman who kills her mate after a prolonged period of abuse and continuing threats on her life can not be logically compared to a man who kills a physical equal in a chance encounter. This inconsistency is compounded by stereotypes, biases and the masculine standard by which the battered woman is judged. Therefore, women on trial for killing their abusers have a myriad of discriminatory circumstances that work against rulings in their favor. Men and the Law Nicholas Boyce killed his wife, dismembered the body in the bath, cooked parts of it to disguise them, and dumped the pieces in several parts of the city. ..Served THREE YEARS.
The judge decreed that Patricia Burns had provoked her own murder. "She fooled her husband by cooking him breakfast, being nice to him, and then without warning, leaving him. This behavior would understandably drive any normal man to lose control and kill"... Suspended sentence - TWO years COMMUNITY SERVICE.
The preceding discussion plainly demonstrates that women face a multitude of unfair masculine legal and social standards which serve to condemn them unjustly. Conversely, laws, stereotypes, the "reasonable man" standard and the defense of provocation, work in favor for men who are on trail for killing their mates. The "reasonable man" standard is yet another factor which works against women who are on trail for killing their abusers. The "reasonable man" standard was created as a universally applicable standard by which a person could be judged. The "reasonable man" would supposedly take measures to prevent danger to himself, but if the same "reasonable man" believed that he could only save himself from death by killing his assailant, then his actions were seen as justified. This standard once again invites the jury to judge a defendants actions as if it were a fair fight between two men and calls to action all the precepts previously discussed in this article. Previous discussion illuminated the fact that evidence of past abuse is often not allowed in court. Consequently, this factor places women in the position of being unable to defend themselves against the standard of the "reasonable man" because any "reasonable man" would logically kill in response to an inescapable threat upon his life. However the "reasonable man" standard works in favor of men because social attitudes allow that this same "reasonable man" can supposedly be provoked in to killing by insubordination on the part of a woman (Radford 268).
The defense of provocation is an insidious concept which allows that a "reasonable man" can kill his lover or wife providing he is justifiably provoked (Radford 271). Legal double standards are especially evident in the sexist ways in which this defense is applied. If a man is provoked be his wife's infidelity, bad housekeeping, withdrawal of sexual services, or even nagging he is justified in killing her (271). Yet the idea that a woman might be similarly provoked by a man who repeatedly beats, rapes or threatens to kill her is not seen as reasonable (272). Because of his greater physical strength a man has the ability to kill a woman without much forethought, which leads more often to a charge of manslaughter. But the woman who of necessity waits for an opportunity to kill or who buys and uses a gun and to protect herself, is seen as premeditating and is therefore accused of murder. Additionally men can use a defense of temporary and provoked loss of control whereas women cannot. For example, a man might be justified in killing his lover if he temporarily goes "out of his head" after seeing her in bed with another man, but a woman kills her abuser is often seen as acting out of revenge (272).
The defense of provocation excuses the "reasonable man" who is temporarily insane and kills in anger. Conversely, the woman who kills in self defense is accused of acting vengefully and is often found guilty of murder. In some cases, the defense of provocation is accepted solely on the evidence given by the accused or his friends. If this defense is accepted the judge has the power of discretionary sentencing and some men can literally "get away with murder" and walk away free (268). Additionally, when men are on trail care is taken not malign their character, but when a woman is in trail her reputation is on trail as well (282). For example, when a man kills his wife he is not asked if he were cheating on her. So we see that the law excuses men but blames the woman, even if a woman is in imminent danger and the man is in a jealous rage. The defense of provocation is based on what the "reasonable man" would do and because "reasonable men" are supposedly naturally violent at times, this standard serves to perpetuate the condoning of male violence (Walker 257). Finally, if a man should actually be convicted of either manslaughter or murder, statistics reveal that he will receive a sentence that is ten to fifteen years less than women accused of the same crime (Booth 42). Such evidence proves that discriminatory practices are deeply imbedded in the practical application of the law as well as inherent in the biased attitudes of personages who dispense the laws. Therefore, changes in the application of the law must be made in order for women to receive fair treatment for their unique situations.
Changes Suggested
The impression created -- that a 5'4" woman with a cast on her leg and using a crutch must, somehow repel an assult by a 6'2" intoxicated man without employing weapons in her defense, unless the jury finds her determination of the degree of danger to be objectively reasonable -- constitutes a separate and distinct misstatement of the law and, in the context of this case, violates the respondent's right to equal protection under the law. The respondent was entitled to have the jury consider her actions in the light of her own perceptions of the situation, including those perceptions which were the product of out nations long and unfortunate history of sex discrimination. Until such time as the effects of that history are eradicated, care must be taken to be sure that our self-defense instructions afford women the right to have their conduct judged in the light of the individual handicaps which are the product of sex discrimination. To fail to do so is to deny the right of the individual women involved to trial by the same rules which are applicable to male defendants. (Washington Supreme Court ruling)
In order for women to receive equal treatment there are certain laws that need to be adjusted so that the precept of justifiable homicide can be fairly applied to everyone who needs it. Changes need to be made in the way that the laws are interpreted, courts are conducted and testimony is allowed. Positive changes are beginning to appear and the above excerpt from the Wanrow decision exemplifies that courts are beginning to realize that a woman's reasonable perception of imminent danger may differ from a man's. It also is exemplary of the fact that courts are beginning to be aware of the effects of sex discrimination on women. A recent and positive trend toward admitting expert testimony is exemplary of how lawyers have been able to influence judges to reconstruct their view of justice (Gillespie 185). Changes in the law of self defense have been pursued through the legislatures, who have overruled judges' decisions (185). Below are some modifications that could be adapted in order for the law of self defense to be fairly applied to battered women.
The equal force requirement needs to be abandoned because it embodies two assumptions that have not even been true for all men. These underlying assumptions are that; every person can defend with his fists and that an unarmed assailant is incapable of killing his victim, neither of which are true. The amount of force one uses to defend oneself is more properly a question how serious the danger is; if a person's life is quite probably in danger, then the use of deadly force is a reasonable response (185).
The imminence requirement obligates a woman to wait until the assault has begun in order for her to justifiably kill her attacker. This serves to place her in great danger and often effectively denies her the right to self defense. If a woman's past experience has made it clear to her that her that the danger she is in is real or imminent, should not be made to wait until she is being murdered to fight back. Some states have adopted a code which opens up the time requirement and allows that anyone with a reasonable fear that an attack is about to commence, can act before it is too late -- this precedent should be followed by all states. Courts also need to distinguish between imminent and immediate, in order to allow juries to look beyond immediacy and allow a broader time frame for imminence (187).
The majority of abuse that a woman recieves occurs in her own home and therefore, the castle doctrine should apply to battered women. The law of retreat has come to require the victim to back away in any circumstance when one can safely do so, and can be used in conjunction with the castle doctrine which rationalizes that ones home is the place of ultimate safety. A woman forced to flee from her home places herself in more danger than a man alone on the street might be, and this fact needs to be taken in to account by an informed court. Furthermore, jury instruction needs to explain the difference between leaving ones home and retreating, which is not apt to be obvious to them. Uninformed juries may tend to impose the retreat requirement, which disallows women their right to live unharmed in their own homes (188).
Battered women's actions are judged by an inappropriate masculine standard of reasonableness. Therefore, a "reasonable woman" standard needs to be developed to replace, in the case of battered women, the "reasonable man" standard. For battered women, a purely subjective standard of a reasonable belief in the need for self defense needs to be adopted. In order to understand that a woman's fear of batterer is reasonable, a trial court should always allow testimony detailing all of the deceased's abuse and other past assaults that were known to the woman at the time (189). Further, a trial court should never give instruction to the jury using the masculine pronoun in a case involving a woman defendant. Telling jurors in such a case that a man has the right to kill in self defense if he is reasonable in his belief that his life is in danger invites the jury to judge a woman's actions by an inappropriate masculine standard (190). Furthermore, expert testimony should always be allowed in cases concerning battered women. Such testimony does not give special rights to women, but it is essential in order for the jury to understand the unique circumstances in which the battered women finds herself. Finally, those who are convicted justly of manslaughter or murder should be given equal sentences that reflect their crimes not their genders. In summary, women need and deserve the right to reasonably defend themselves against continued torture and threats upon their lives.
These proposals are not extreme, nor are they a remedy that will eliminate all of the unfair treatment that women receive under the law. They are however, a step toward equity for battered women. Judges, juries and the public need to be educated regarding the circumstances that place women in the position of needing to defend their lives against violent husbands and boyfriends. Judges, juries and the public needs to understand that it is the man who initiates the violence and that the woman who kills is acting reasonably in her efforts to prevent further violence or death. The police need to support women who call for protection from their batterers. Women who choose to begin a new life need a safe place to go, to live and be educated. Further steps need to be taken outside of the courts to reveal the general public the destructive and deadly nature of sexism and all forms of violence against women. And finally, the public needs to be educated on the widespread condition of women who suffer from domestic violence.
The Birdcage
The standardized "man of the law" creates injustice assumptions that are simply one condition in a larger continuum of the legal definitions of humanity that discriminate against women. The law, by its definitions and priorities, exclude women as a legal model of humanity (6). Therefore, the legal status of battered women who defend their lives exsists within a larger continum of legal inequality. The situation of battered women who kill is, as Marilyn Frye in her essay on oppression describes, just one of the bars on the birdcage (Frye 8). Frye explains that if we view these bars singly they do not allow for an understanding of why the bird does not escape. However, if the viewer steps back, they can see the cage in its entirety and can then easily see why the bird is not getting anywhere. As exemplified in the case of battered women, even when the law supposedly treats both sexes the same in practice, its application creates very different results for men and women. The laws that supposedly protect women do not discriminate in a textual sense, but those in power, namely men, remain in power by knowingly and unknowingly distributing justice in a discriminatory fashion. Consequently, individual problems like that of the status of battered women are only singular situations on a continuum of legal inequality.
Women who kill are often provoked beyond endurance by men's violence. Research on battered women indicated that women who kill their abusers genuinely believe themselves to be trapped in a kill or be killed situation and statistics prove that they are justified in their beliefs (Radford 282). However genuine in their belief, women are still not allowed to have their actions viewed as self defense because the laws and biases of society are unable, unwilling and too shortsighted to grant them the same right of self defense that is given to men. Two elements are paramount in the discriminatory application of the right to self defense. First, the law itself has evolved over many centuries and today has come to embody masculine assumptions regarding a persons entitlement to self defense. The second element is contained in society's attitudes regarding appropriate behavior for women and its acceptance of widespread violence against them (Gillespie 6).
These discriminatory attitudes are further compounded by the myriad of emotional and social issues that surround the woman trapped in an abusive relationship. Fighting has always been defined by our society as a masculine behavior and it therefore it is not surprising that a woman will react differently than a man when confronted by an attacker, especially if the woman is in an intimate relationship man who attacks her. The notion of a fair fight among equals cannot apply to men and women simply because they are not physically equal. Furthermore, the batterer is not interested in a fair fight, his purpose is to enforce his authority and vent his frustration. The law needs to take into account that women are not, nor are they socialized to be, as physically powerful as men. Women cannot be judged as men simply because they are not men. Society expects women to be different from men and yet it simultaneously penalizes them for not acting like "manly, or reasonable" men. It is likewise unreasonable to judge the unique circumstances of a battered woman against the situations in which a man might find himself in defense of a sudden attack from a total stranger. Women need and expect the same rights to defend themselves that men have, and any law that imposes an unfair masculine standard to measure woman's behavior needs to be reworked in order to allow justice for women. Someday perhaps, the guns of truth, wielded by the hands those who care about women's welfare, will prevail against a patriarchal system which has oppressed women for untold thousands of years.
Pray for the dead, but fight like hell for the living. - Mother Jones
Works Consulted
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Jones, Anne. Women Who Kill. New York: Holt Rinehart and Winston, 1980.
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