Jan Feb Evidence

Planet Debate
January/February 2012 L-D Domestic Violence
January/February 2012 LD Topic........................................................................................4

**AFFIRMATIVE**.........................................................................................................5
Many Women In Prison for Killing Abusers.......................................................................6
Domestic Violence Homicides High....................................................................................7
Domestic Violence Harms...................................................................................................8
State Response to Domestic Violence Inadequate...............................................................9
Criminal Justice System Doctrines Unfavorable to Self Defense Claims.........................10
Self Defense Provides Basis for Moral Justification......................................................12
Self Defense Means That the Act Is Just/Actor Behaved Responsibly..........................13
Law Governing Domestic Violence Victims who Kill Abusers is Structurally Biased
Against Women..................................................................................................................16
Self Defense Law Fails Women.........................................................................................18
Self Defense Law Fails Child Abuse Victims....................................................................21
Imminence Requirement Biased....................................................................................24
Imminence Requirement Should be Replaced...............................................................25
Imminence Requirement Unnecessary...........................................................................28
AT: Arguments Against Reforming Imminence Requirement...........................................29
Deadly Force Against Private Tyrants Morally Justified...................................................30
Private Tyranny Worse than Public Tyranny.....................................................................32
Abusers Forfeit Their Right to Life...................................................................................34
Retribution/Vigilantism Against Batterers Morally Just....................................................35
AT: Arguments Against Vigilantism..................................................................................37
Retributive Theory of Justice: Moral Punishment Requires Focus on Desert...............39
Retributive Theory of Justice: Moral Punishment Requires Focus on Desert...............40
Retributive Theory of Justice: Moral Punishment Requires That the Offender Acted with
Knowledge and Free Will..................................................................................................41
Retributive Theory of Justice: Moral Punishment Requires Proportionality....................42
Retributive Theory of Justice: Context of Long-Term Abuse can Morally Justify
Individual Retribution........................................................................................................43
Context of Abuse Critical to Determination of Desert and Just Punishment....................44
Resort to Deadly Force Justified on Equality Grounds.....................................................47
Laws Governing Kidnap Victims Provide Moral Basis for Deadly Force Against Abusers
...........................................................................................................................................51
Should View Victims of Long Term Domestic Violence as Hostages...............................54
Viewing Abuse Victims as Hostages Relaxes Imminence Requirement...........................55
Reliance on Hostage/Kidnap Justification More Effective Legal Strategy.......................56
Should Revise Battering Syndrome as a Response to Coercive Control...........................57
Killing Abusers as a Response to Coercive Control Morally Justified.............................58
Coercive Control/Hostage Situation Framework More Effective.....................................59
Coercive Control/Hostage Situation Frameworks Avoids Victimization Effects of
Battered Woman Syndrome...............................................................................................60
Should Revise Responsible Actor Model to Account for Those who Kill Their Batterers
...........................................................................................................................................61
Executive Clemency for Those Killing Abusers Morally Just..........................................62
Planet Debate
Executive Clemency for Those Killing Abusers Morally Just..........................................63

Jury Nullification for those Killing Abusers Morally Just.................................................64
Failure to Examine Context Grounded in Scapegoating...................................................65
AT: Slippery Slope.........................................................................................................67
AT: Abuse Excuse Bad................................................................................................69
AT: Abuse Excuse Bad Theory of Responsibility Requires Recognition of Excuse
Defenses.............................................................................................................................70
AT: Abuse Excuse Bad Wilson Indicts.....................................................................72
AT: Abuse Excuse Bad Dershowitz Indicts..............................................................74
AT: Abuse Excuse Bad Fletcher Indicts...................................................................76
AT: People Will Fake the Defense.................................................................................78
AT: Battered Woman Syndrome is Disempowering/Bad Stereotypes...........................79
AT: Battered Woman Syndrome Discriminates Against Same-Sex Relationships........80
AT: Justification Defenses Discourage Alternative Solutions to Domestic Violence....81
AT: Deterrence Only Legitimate Basis for Punishment.................................................82
AT: Incapacitation Only Legitimate Basis for Punishment............................................84
AT: Rehabilitation Only Legitimate Basis for Punishment............................................85
AT: Killing Abusers Doesnt Meet Moral Basis of Justice............................................86
AT: Killing Abusers Doesnt Meet Self Defense Standards...........................................87
AT: Self Defense Limited to Imminent Attacks.............................................................88
AT: Deadly Force is not Justified...................................................................................91
AT: Your Arguments Are About Law not Morality........................................................92
AT: Presumption Against Legitimizing Deadly Force...................................................93
**NEGATIVE**..............................................................................................................94
Justice System Not Biased Against Women Now..............................................................95
States Have Improved Their Responses to Domestic Violence.........................................97
Gender-Based Excuses Increase Subordination..............................................................102
Battered Woman Syndrome is an Excuse Defense......................................................104
Battered Womans Syndrome Perpetuates Negative Stereotypes................................105
Victimization Impacts......................................................................................................112
Battered Womans Syndrome Grounded in Heterosexism...........................................114
Battered Womans Syndrome Grounded in and Perpetuates Racism...........................116
Abuse Excuse Bad For the System/Society..............................................................122
Responsibility/Accountability Basis of Criminal Justice System...................................124
Responsibility/Accountability Vital to Respect for Individual Moral Agency................125
Abuse Excuse Bad For the Defendant......................................................................126
Abuse Excuse Bad - Slippery Slope.............................................................................127
Killing Abusers Not Just..................................................................................................132
Killing Abusers Not Just..................................................................................................133
Killing Abusers Undermines Value of Life......................................................................134
Justification Defense Does not Mean the Act is Moral...................................................135
Excuse Defense Does Not Mean Act is Moral................................................................136
Planet Debate
Insanity Defense Does Not Find Killing a Moral or Just Response................................137

Presumption Against Deadly Force.................................................................................138
Legitimate Self Defense Requires Imminence................................................................139
Imminence Requirement Key to Maintaining State Monopoly on Violence/Force........144
Vigilantism Bad: Threat to Stable Society.......................................................................147
Self Defense Should be Narrowly Construed..................................................................149
AT: Societal Failure to Protect Domestic Violence Victims Justifies Relaxing SelfDefense Standards..........................................................................................................153
Violence Bad....................................................................................................................156
Faked Defense.................................................................................................................159
AT: Killing Private Tyrants/Forfeiture Theory Morally Justified................................160
Planet Debate
January/February 2012 LD Topic

Resolved: It is morally permissible for victims to use deadly force as a deliberate
response to repeated domestic violence.
Planet Debate
**AFFIRMATIVE**
Planet Debate
Many Women In Prison for Killing Abusers

MOST WOMEN IN PRISON FOR MURDER KILLED ABUSIVE PARTNERS
Evan Stark, Professor, Graduate Department of Public Administration, Rutgers University, 1995,
Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control, Albany Law
Review, 58 Alb. L. Rev. 973, p. 973-4
In the last decade, "the battered woman defense" has become a widely used courtroom strategy and a rallying cry for freeing women
charged with killing their abusers. And justifiably so. Several studies have shown that between 40 and 93 percent of
the women in prison for murder or manslaughter killed partners who physically assaulted them, most in
direct retaliation or to protect themselves and/or a child. Data from 1992, meanwhile, shows that one-third of all
female murder victims over age fourteen were killed by intimates, such as boyfriends, spouses, or exspouses. In the civil arena, all but two states have passed legislation recognizing the importance of domestic violence in custody
disputes.
Planet Debate
Domestic Violence Homicides High

DOMESTIC VIOLENCE HOMICIDES HAVE REMAINED HIGH DESPITE FALL IN GENERAL
HOMICIDE RATE
Ryan Elias Newby, JD Candidate Hastings, 2011, Evil Women and Innocent Victims: The Effect of
Gender on California Sentences for Domestic Homicide, Hastings Women Law Journal, 22 Hastings
Women's L.J. 113, p. 127
Thus, women and men are victimized by intimate partners at different rates; women are more frequently the
victims of fatal intimate partner violence, and women and men commit intimate partner homicide at
different rates. Intimate partner homicide makes up a higher proportion of the homicides committed by
women than of those committed by men. Further, while frequency of intimate partner homicide has dropped in recent
decades, the proportion of homicides of women attributable to intimate partners has remained roughly the
same. Thus, despite an overall decrease in homicide rates in the United States in recent decades, intimate partner
homicide remains a significant threat to women and to a lesser extent, to men. For this reason, it remains pertinent
to investigate how juries view women who kill their husbands, in particular, whether and how women's claims of spousal abuse affect
the jury's decision regarding culpability.
Planet Debate
Domestic Violence Harms

INTIMATE VIOLENCE EXTENSIVE AND HARMFUL
Jane Maslow Cohen, Professor Boston University School of Law, 1996, Self-Defense and Relations of
Domination: Moral and Legal Perspectives on Women Who Kill: Regimes of Private Tyranny, University
of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 757, p. 762
We have come to acknowledge that a large minority-perhaps even a majority-of intimate adult relationships in our
society incorporate physical violence within their terms. When such violence becomes a recurring part of such
relationships, and especially when it gives rise to reported or otherwise known injury, the violence is now known as
battering. Terrible and tragic things happen within the contexts of battering relationships, even beyond the
violence and resultant injury itself. These tragedies include the death of the battered victim; the physical
and psychological abuse of others, especially children, within the household; the destruction of
employment situations and opportunities; the withering away of basic trust, particularly trust in intimacy;
and, often, the waste of what might, and should, have been rewarding and productive lives.
VIOLENCE AGAINST WOMEN IS SYSTEMIC AND MASSIVE EVERY DAY IN THE US 4
WOMEN ARE MURDERED, THOUSANDS ARE BEATEN OR RAPED. THIS BRUTALITY
THAT PERMEATES OUR CULTURE OUTWEIGHS WAR AND IS ETHICALLY
UNCONSCIONABLE
National Organization of Women, 2006, Violence against Women in the United States,
http://www.now.org/issues/violence/stats.html, accessed 6-21-2006
Murder. Every day four women die in this country as a result of domestic violence, the euphemism for murders and
assaults by husbands and boyfriends. Thats approximately 1,400 women a year, according to the FBI. The number of
women who have been murdered by their intimate partners is greater than the number of soldiers killed in
the Vietnam War.
Battering. Although only 572,000 reports of assault by intimates are reported to fede4ral officials each year , the most
conservative estimates indicate two to four million women of all races and classes are battered each year.
At least 170,000 of those violent incidents are serious enough to require hospitalization, emergency room care
or a doctors attention.
Sexual Assault. Every year approximately 132,000 women report that they have been victims of rape or
attempted rape, and more than half of them knew their attackers. Its estimated that two to six times that many women
are raped, but do not report it. Every year 1.2 million women are forcibly raped by their current of former
male partners, some of them more than once.
The Targets. Women are 10 times more likely than men to be victimized by an intimate. Young women, women
who are separated, divorced, or single, low-income women and African-American women are disproportionately victims of assault
and rape. Domestic violence rates are five times higher among families below poverty levels, and severe spouse
abuse is twice as likely to be committed by unemployed men as by those working full time. Violent attacks on lesbians and
gay men have become two to three times more common than they were prior to 1988.
Impact on Children. Violent juvenile offenders are four times more likely to have grown up in homes where
they saw violence. Children who have witnessed violence at home are also five times more likely to
commit or suffer violence when they become adults.
Impact on Health and Social Service. Women who are battered have more than twice the health care needs and
costs than those who are never battered. Approximately 17 percent of pregnant women report having been battered, and the results
include miscarriages, stillbirths, and a two to four times greater likelihood of bearing a low birthweight baby. Abused women are
disproportionately represented among the homeless and suicide victims. Victims of domestic violence are
being denied insurance in some states because they are considered to have a pre-existing condition.
Planet Debate
State Response to Domestic Violence Inadequate

STATE GOVERNMENT RESPONSE TO VIOLENCE AGAINST WOMEN INADEQUATE
Casey L. Westover, Law Clerk to Murphy, US Court of Appeals 8th Circuit, 2003, The John Marshall
Law Review, Winter, 36 J. Marshall L. Rev. 327, p. 343-5
When Congress passed VAWA, violence was the leading cause of injury for women ages fifteen to fortyfour. "As many as four million women per year were the victims of domestic abuse," and one woman was raped every six minutes.
Because these problems do not fall within the scope of a federal enumerated power, State governments alone had the power
to protect women from these most fundamental deprivations of social liberty. Their response was
inadequate.
State legislatures failed to pass laws adequately protecting women from violent attacks. Although almost
every State passed hate crime legislation in the 1980s, few if any included gender as a protected group , and
less than a dozen states had done so when Congress began to consider VAWA. Some violent acts against women were not
even considered a crime. For example, in a few states it was not illegal for a husband to rape his wife. In several others, spousal
rape was not considered a crime barring an aggravating factor, such as the use of a weapon. Even when a man was convicted of rape,
most state sentencing statutes did not have much bite. "Almost one-quarter of convicted rapists never go to prison, and another
quarter [receive] sentences [averaging] . . . 11 months."
Even when state legislatures passed laws to protect women from violence, state executive and judicial
branches often failed to adequately enforce them. Crimes of violence that primarily affect women were treated less
seriously than comparable crimes that primarily affect men. Police sometimes refused to take reports, and prosecutors
allowed offenders to plead to less serious charges.
In certain counties, state's attorneys refused to file acquaintance-rape cases "because they
[felt] convictions [were] unlikely." n139 Police sometimes required that a victim pass a polygraph exam before they would pursue her allegations.
Even when charges were brought, rape prosecutions did not fare as well as other prosecutions in state courts. "[A] rape case is more than twice as likely to be dismissed as a
murder case, and nearly 40 percent more likely to be dismissed than a robbery case." While "69 percent of suspects arrested for murder are convicted of murder, and 61 percent of
arrested robbery suspects are convicted of robbery," less than half of suspects arrested for rape are convicted of rape. n142 These discrepancies can be attributed to deep suspicion
of victims' credibility and victim blaming attitudes unique to crimes against women. Judges and juries require more corroboration from rape victims than from victims of other
crimes, and trials often focus on the behavior of the woman, instead of the actions of her assailant.
Some examples will make the statistics more poignant. One probation officer questioned whether a nineyear-old girl was a "real victim," because he heard she was a "tramp." A judge stated at a hearing that a
victim of domestic violence "probably should have been hit." Finally, a prosecutor "badgered a 15-yearold: 'Come on, you can tell me. You're probably just worried that your boyfriend got you pregnant, right?
Isn't that why you're saying he raped you.'"
Congress had this record of state refusal and inability to protect women from violence before it when VAWA was passed in 1994.
State government had failed to protect the social liberty of women in the most basic sense, and the federal
government attempted to step in. Morrison, however, held that this was beyond the reach of congressional
power. Thus, because State governments would not adequately protect the social liberty of women, and the federal government was
prevented from doing so by the negative restraints on its legislative authority set forth in Morrison, government failed to adequately
protect women from deprivations of basic social liberty.
CANNOT SOLVE VIOLENCE VICTIMS HAVE NO ACCESS TO LEGAL SERVICES

Margulies, Professor of Law at St. Thomas, 1995 (Peter Margulies, Representation of Domestic Violence
Survivors as a New Paradigm of Poverty Law: In Search of Access, Connection, and Voice, 63 George
Washington L. Rev. 1071 , p. 1077-8
Survivors also encounter significant barriers to access legal assistance. Lawyers can help survivors in a variety of
ways, including obtaining orders of protection against violence (which is the main focus of this Article); representing battered women
in divorce, custody, public assistance, immigration, housing, and criminal defense matters; and working with battered women's
organizations on governance, financing, and community development issues. Many poverty law offices have, however,
limited their representation, particularly in the order of protection context, which often is the survivor's first
point of contact with the justice system. The 1980 Legal Services Corporation ("LSC") Annual Report states that 0.8% of the
caseload handled by the LSC concerned domestic violence. Other cases, such as divorce matters, have a domestic violence
component, yet tracking these cases is difficult because LSC historically has not kept statistics on which cases in other categories also
involved domestic violence.
Big city legal services programs , in particular, have been inactive. In New York, few legal services programs
perform any domestic violence work. In Miami, the legal services program does none. In Philadelphia, a
recent law graduate on a fellowship coordinates that program's domestic violence legal assistance efforts.
Planet Debate
10
Criminal Justice System Doctrines Unfavorable to Self Defense

Claims
SUCCESSFUL SELF DEFFENSE EFFORTS REQUIRE ADJUSTMENTS IN TRADITIONAL
CRIMINAL JUSTICE STANDARDS
Jody Armour, Associate Professor of Law-University of Pittsburgh, 1996, Self-Defense and Relations
of Domination: Moral and Legal Perspectives on Women Who Kill: Just Deserts: Narrative, Perspective,
Choice and Blame, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 525, p. 527-8
Women's self-defense work challenges the restrictions on narrative inscribed in traditional criminal law doctrine in
two crucial respects. First, women's self-defense work presses criminal law doctrine to depart from its
dominant tendency to focus narrowly on the criminal incident. Specifically, women's self-defense work
presses criminal law doctrine to broaden its time frame to take account of earlier events leading up to the
criminal incident, such as the abuser's history of threats and physical abuse, the escalation in violence over time, and the woman's
efforts to reduce her and her children's exposure to further violence. Moreover, women's self-defense work presses criminal law
doctrine to consider the contextual obstacles to a woman leaving a battering relationship, such as economic necessity; the frequent
inability of police, restraining orders, and even shelters to protect battered women; and the high incidence of separation assault in
which efforts to leave trigger more severe or lethal reactions by abusers.
Second, women's self-defense work stresses the importance of assessing the woman's decisions and actions
from the perspective of someone in her position. That is, it urges that the defendant's conduct be judged
against an individualized standard of reasonableness in which the fact finders ask themselves whether an
ordinary person "in the shoes of the defendant" could have reacted as she did. The so-called "objective" test of
reasonableness, which courts sometimes tell fact finders to employ in evaluating the defendant's reactions, directs the fact finders to
assess the defendant's situation from the perspective of an average person drawn from the general population. The "objective"
test, therefore, is a bed of Procrustes that directs fact finders to ignore the special attributes of the
defendant-such as a post-traumatic stress disorder or an enhanced capacity to predict the behavior of her
partner-which she developed from her history of abuse.
GENDER BIAS AND FAILURE TO RECOGNIZE SYSTEMIC NATURE OF DOMESTIC
VIOLENCE IMPAIRS EFFECTIVENESS OF COURTS
Weissman, Associate Professor of Law at UNC Law School, 2001 (Deborah M. Weissman, GenderBased Violence as Judicial Anomaly: Between The Truly National and the Truly Local, 42 Boston
College Law Review 1081 (September 2001)). p. 1123-5
The power of bias may also insinuate itself in the invocation of neutral rules which are implemented
according to values and assumptions of the judge, but which are often injurious to battered women. Legal
procedures that appear objective and neutral are neither, when the biases harbored by a judge are infused in their
application. Judges who do not understand that abusive behavior is a dynamic with connected and controlling characteristics, and not
isolated instances of assault, may apply the evidentiary requirement of relevancy in a fashion that precludes
women from testifying about their history of assaults. Judges thereby focus on an incident of alleged physical harm and
limit testimony and evidence to a specific event or to incidents which are closely related chronologically. This is particularly
problematic if the most recent episode, prompting the request for relief, is not the worst episode a woman
has endured. Thus, if a woman waits to seek relief until a subsequent assault--one that does not produce injuries or does not rise to
a sufficient level of outrage in the judge's perspective--she may be denied that relief because she is precluded from testifying about a
prior, more violent course of conduct she has experienced.
The result is a fragmentation of testimony which distorts stories in ways that negate the experiences of
battered women and deny a more complete understanding of gender-based violence. Without evidence
documenting the history of violence and the connections between emotional abuse, threats, and physical
harm, patterns of domestic violence rarely will be discernible . Furthermore, important connections between battered
women themselves remain obscured, impeding the recognition of domestic violence as a public problem with larger social
implications, and confining it to individual idiosyncrasies without larger meaning.
Planet Debate
11
Criminal Justice System Doctrines Unfavorable to Self Defense Claims

BATTERED WOMEN ARE DISADVANTAGED BY THE MARGINALIZATION OF DOMESTIC
VIOLENCE CASES IN THE COURTS
College Law Review 1081, p. 1125-6
Flawed and biased judicial processes and decision-making mechanisms coalesce to form a cultural system
with structures and practices that marginalize domestic violence in the courts . These mechanisms may
reproduce themselves in ways that are not overtly discriminatory, and that produce negative results unintentionally, but they
nevertheless perpetuate the inferior legal status of these cases. For example, bureaucratic responses and
administrative adaptations, shaped by a discourse and practice that devalue these claims, may diminish the
effectiveness of recourse to the court system even as that system attempts, in good faith, to respond to the
growing number of domestic violence litigants. Similarly, lawyers who handle domestic violence claims may unwittingly
conform their conduct and practices to the constricted culture of domestic violence law, thereby contributing to and reinforcing it
unintentionally.
These cultural practices may be insulated from correction by their very consequences within and outside
of the judicial system: The subordination of domestic violence in the courts prevents education of the trial
judge, who hears, at best, a disaggregated version of events. When civil domestic violence proceedings are limited at
the trial level, so too are the opportunities for a transformation in the law that might occur if these claims were allowed to be presented
fully, for the development of appellate law is hindered as well. The result is that individual cases may be predictably doomed, and
there is diminished hope of elevating domestic violence cases, as a group, to the class of respected legal claims. At the same time, in
and out of the courts there is evidence of a backlash toward battered women based on a perception that they have an unfair advantage
and play on public sympathy. Moreover, increased attention to domestic violence has resulted in unfounded
assumptions about progress in the courts and has produced skepticism, if not outright denial, that serious
problems persist, making needed reforms all the more difficult to achieve.
Planet Debate
12
Self Defense Provides Basis for Moral Justification

SELF DEFENSE CONCEPT PROVIDES THE MORAL JUSTIFICATION FOR KILLING ONES
ABUSER
Robert F. Schopp, Professor-University of Nebraska College of Law, 1998, Justification Defenses and
Just Convictions, p. 87-8
The moral justification of self-defense reflects broad underlying principles of public morality. In a liberal
society that vests fundamental value in the individuals right to self-determination and recognizes each
sovereign persons equal standing, any culpable criminal conduct infringes on the victims concrete
interests and violates her sphere of sovereignty. The aggressor imputes inequality of standing by culpably
violating the victims protected domain, and in a liberal society any violation of sovereignty constitutes an injury to a
fundamental interest. The victim may exercise any force necessary, therefore, to protect her sphere of selfdetermination against an aggressor whose culpable conduct extends beyond his own protected domain . She
has no obligation to observe rules of proportion or retreat against an aggressor, but she must consider the interests of innocent
aggressors or shields and must not violate the sovereignty of an innocent party.
Planet Debate
13
Self Defense Means That the Act Is Just/Actor Behaved

Responsibly
SELF-DEFENSE NECESSARY TO SIGNAL THAT THE KILLING IS JUST EXCUSES DONT
MAKE IT JUST
Robbin S. Ogle & Susan Jacobs, Professors of Criminal Justice at the University of Nebraska @
Omaha, 2002, Self-Defense and Battered Women Who Kill: A New Framework, p. 101-2
The distinction between justification and excuse may not seem important . Some commentators relegate it to a mere
academic distinction. Some declare it academic and without practical import in a particular case, but still theoretically important and
not to be ignored; and others advocate abandoning it altogether. Certainly, the distinction makes no difference to jurors who are
unaware of it; in that respect, it may appear not to play any part in cases as they are actually tried and decided. But, theoretically
and philosophically, the distinction is an important one. It has serious theoretical implications in battered women cases.
The question it thrusts upon us the question that makes it an important issue to consideris this: Are we prepared to
justify, hence in essence to positively sanction, homicide on the part of the battered woman who kills her
batter; or will we at most just excuse the act as one for which she should not be held responsible for
murder? If we are prepared to justify lethal force used by an abused woman against her abuser, then selfdefense should be seriously examined and refined to allow it to be presented and to operate as a complete
defense in these cases. As our review of the cases reveals in the material that follows, self-defense often does not operate
successfully in abused women cases because it is simply presented in its most traditional form. That form does not allow the use of
lethal force inflicted on an abuser under the conditions in which battered women typically defend themselves.
The justification/excuse distinction has been blurred in trials of battered women because most of them have arisen
in the context of Battered Woman Syndrome. Self-defense is really a justification defense, but reliance on Battered
Woman Syndrome tends to present the lethal response to battering more often as an excuse , an attempt to
explain why a battered woman should be excused from the legal consequence of homicide.
Since self-defense is really more than an excuse, since in its historical and theoretical development it really is a
justification, any approach that leans toward only excusing the conduct often falls short of persuading the
trier of fact that self-defense applies. The approach taken here, however, is one that places the homicidal act in a broader
context that is more likely to illustrate that the homicide was actually committed in self-defense, and hence was justified. In this
respect, our approach addresses the justification of the act in a fashion more true to the underpinnings of the
defense. This theoretical approach to understanding battering as a slow homicidal process promises to advance self-defense as a
viable defense for battered women, especially in nonconfrontational cases.
JUSTIFICATION DEFENSES LIKE SELF DEFENSE SAY THAT THE CONDUCT WAS
JUSTIFIED AND THE ACTOR BEHAVED IN A RESPONSIBLE MANNER
Anne M. Coughlin, Law Professor-Vanderbilt Law School, 1994, Excusing Women, California Law
Review, 82 Calif. L. Rev. 1, p. 13-4
Scholars often look to the field of criminal defenses, particularly excuses, for help in characterizing the model
responsible actor. The defenses that excuse an actor who has violated the criminal law are distinct from
those that justify misconduct in a way that is said to make the excuses the most helpful source for critics intent on delineating
the responsible actor. A plea of justification claims that the act was right or, at least, legally permissible, while a
plea of excuse concedes that the act was wrongful, but claims that the actor should not be blamed for it. In
this way, a justification defense directs our attention to the propriety of the act in the abstract, while an excuse
defense focuses on whether the personal characteristics of the accused support his plea that he may not
justly be held responsible.
Although the academy has not relied heavily on the law of justification when exploring issues of responsibility, justification defenses
nevertheless reflect the criminal law's model of the responsible actor. Justification defenses powerfully imply that normal
actors, even under the most deadly circumstances, possess the capacity for rational choice. In a case
involving the justification of self-defense , for example, a judgment that the force exerted against an aggressor
was justified announces that ex ante the accused, though subject to the tremendous pressure of what he believed might be
impending fatal harm, was able to exercise self-control sufficient to properly gauge the strength of the forces
arrayed against him and to extricate himself in a manner that inflicted the least overall costs . The actor who is
preparing to fend off an attack must calibrate his response by reference not only to his own rights, but also to the interests and
capacities of his attacker. Not surprisingly, given the ineluctability of the adversarial forces arrayed against the actor, George
Fletcher characterizes justification defenses as expressing the ideal of self-regulation . By finding that
a
defendant's conduct was justified, the decisionmaker not only announces that no wrong was committed, it
also expresses its confidence in the actor's capacity to behave responsibly in the future.
Planet Debate
14
Self Defense Means That the Act Is Just/Actor Behaved Responsibly

DISTINCTION BETWEEN EXCUSE AND JUSTIFICATION
Stephen J. Morse, Psychology Professor-University of Pennsylvania, 1998, Excusing and the New
Excuse Defenses: A Legal and Conceptual Review, Crime and Justice, 23 Crime & Just. 329, p. 333
A justification obtains if the otherwise wrongful conduct was objectively right or, at least, permissible
under the specific circumstances. The defendant is a fully responsible agent in such cases, but she is
exonerated because she did the right thing in this situation. Self-defense against a wrongful aggressor is the
classic example. Intentional harming is right or, at least, permissible if it is done by an innocent agent defending against what she
reasonably believes to be imminent wrongful aggression. Under these conditions, the agent has no reasonable alternative to defending
herself. In this case, the reasonableness of the agent's belief is what exculpates her otherwise intentionally harmful behavior. So, to use
the example provided above, if a federal agent was using clearly unjustified deadly force in the pursuit of her official duties with a
citizen, the citizen would be justified in using deadly self-defense to save her own life.
An excuse obtains if the defendant's conduct was objectively wrongful, but the defendant was not a
responsible moral agent. Infancy and legal insanity are classic examples of excuses . Suppose, for example, that a
citizen suffering from a severe mental disorder delusionally believes that a federal officer in pursuit of her official duties is really part
of a homicidal conspiracy to kill her and kills the officer in the delusional belief that she needs to do so to save her own life. In such a
case, the defendant's conduct is wrong -- there is no justification for killing the officer -- but her nonculpable irrationality marks her as
a nonresponsible agent, who does not deserve blame and punishment. Legal insanity would provide her with a doctrinal
excuse that reflects the moral ground for exculpation.

EXCUSE DEFENSES DO NOT MAKE THE CONDUCT JUST
Gabriel J. Chin, Professor of Law, University of Arizona, 2009, The Nature, Structure, and Function of
Heat of Passion/Provocation as a Criminal Defense, University of Michigan Journal of Law Reform, 43 U.
Mich. J.L. Reform 79, p. 79
In recent decades, the distinction between justification and excuse defenses has been a favorite topic of theorists of
philosophy and criminal law. Paul Robinson offers this representative general definition:
Justified conduct adheres to the criminal law's rules of conduct and is to be encouraged (or at least tolerated) in
similar circumstances in the future... . An excuse, in contrast, represents a legal conclusion that the conduct
is wrong and undesirable, that the conduct ought not to be tolerated and ought to be avoided in the future,
even in the same situation. Criminal liability nonetheless is inappropriate because some characteristic of the
actor or the actor's situation vitiates the actor's blameworthiness.
EXCUSE DEFENSES SEND DIFFERENT MORAL MESSAGE THAN JUSTIFICATION
DEFENSES
Mich. J.L. Reform 79, p. 89-90
Although everyone not convicted of an offense is in the same position with respect to the criminal justice system, the law could be
structured to give more precise moral guidance about why an individual was not condemned. Professor
Dressler proposes that defenses should be categorized as justifications or excuses so that the law can send
accurate moral messages.
Justification defenses reflect society's judgment that certain conduct is tolerable or desirable while excuse
defenses recognize those circumstances in which society considers it morally unjust to punish and
stigmatize wrongdoers. When the law fails to focus on the justification-excuse distinction it risks sending a false message.
ONLY JUSTIFICATION DEFENSES SIGNAL THAT THE ACT IS MORAL
Justification defenses exempt certain defendants who do not merit the condemnation inherent in conviction
and punishment because their actions do not violate the fully articulated conventional public morality. Excuses,
in contrast, exculpate those who violate the public morality but not in the capacity of accountable agents .
Some excused defendants lack the capacities required to qualify as accountable agents, while others lack the
knowledge that would provide the opportunity to apply these capacities to the decision to perform the proscribed
conduct. This latter groups action-plan selection is internally justified by the reasons they are aware of, although their conduct is not
externally justified by all the relevant reasons that apply.
Planet Debate
15
Self Defense Means That the Act Is Just/Actor Behaved Responsibly

JUSTIFICATION DEFENSE SIGNALS THAT THE ACT WAS JUST
Professor Robinson agrees that "when an actor is acquitted under a justification defense, the message to the public
may be unclear, especially since the verdict of "not guilty' gives no hint that a justification defense is at work"; in excuse cases, "a
simple "not guilty' verdict" cannot always "convey the proper message." The moral message of "not guilty" verdicts based
on particular defenses is said to apply to individual cases. Thus, Professors Westen and Mangiafico
characterize a justification as "the state's declaring to an offender, "You did nothing that the criminal law in
any way regards as regrettable under the circumstances.'" According to Professor Dressler, a "defendant who raises
a justification defense in a criminal prosecution says, in essence, "I did nothing wrong for which I should
be punished.'" Professor Robinson asserts that "a finding of justification is a finding that the act was justified."
TO SAY AN ACT IS JUSTIFIED MEANS MORE THAN JUST NOT PUNISHABLE
Several arguments support the contention that justified conduct is right rather than merely permissible .
Justified cannot mean merely not liable to punishment because excused conduct is not punishable, yet it is
not justified. As an ideal guide for individual conduct, the law should provide a right answer for each
situation. If justified conduct is objectively right, the actor has a right to do it, and, thus, others have a duty not to interfere. This
formulation promotes the purpose of law by avoiding mutually justified violent conflicts. If justified conduct were merely
permissible, however, two or more permissible alternatives might conflict, leading to incompatible justifications. Although Fletcher
explicitly contends that justified conduct is right rather than merely permissible or tolerable, he does not specify a precise
interpretation of right. In one sense, the right act might be understood as the morally best or ideal act . Some
teleological moral theories identify the right act as that act that is such that no available alternative is
superior. Justification defenses that identified the right act in this sense would provide the ideal guidance Fletcher seeks in that they
would direct the individual toward the best action in the circumstances.
Planet Debate
16
Law Governing Domestic Violence Victims who Kill Abusers is

Structurally Biased Against Women
DIFFERENCE IN HOW LAW TREATS PROVOCATION DEFENSE VERSUS BATTERED
WOMAN SYNDROME DEMONSTRATES GENDER BIAS
V.F. Nourse, Associate Professor of Law, University of Wisconsin, 2001, Self-Defense and
Subjectivity, University of Chicago Law Review, 68 U. Chi. L. Rev. 1235, p. 1291-2
One of the deepest oddities in all the apparent concern about subjective defenses is that the objection is something of a phantom when
it comes to self-defense law. There is no jurisdiction in the United States that adopts a purely subjective self-defense standard (for
women or anyone else). Indeed, there are other defenses with far greater claims to nearly complete
subjectification--defenses about which few have complained. It is widely accepted , for example, that a man
who kills his wife in a "heat of passion" deserves to have his subjectivity considered favorably. As I have
written elsewhere, if one is concerned with subjectivity, then one's first target as an "abuse excuse" should be
the provocation defense. The only problem is that standard criminal law scholarship has defended , or at least
assumed as natural, the emotional subjectivity of men who kill because their wives cheat or leave them.
The claim against subjectivity typically made by the objectivist--that it contradicts established law--simply
dissolves once we consider provocation. Writing (quite sympathetically) of the disturbing events that led Judy
Norman to kill her husband, George Fletcher complains that Norman "put herself in the position of judge and
executioner," imposing a "death penalty" that no authority would have imposed. He concludes: "there may be justice in his dying,
but it is not a form of justice that the legal system can readily accommodate." The very same arguments, however, might be
said of Kenneth Peacock. When Kenneth Peacock found his wife in bed with another man, he got his
shotgun and scared his rival off; several hours and a gallon of wine later, Peacock shot and killed his wife.
Certainly, Peacock acted as "judge and executioner." We could insist, with even more fervor than Fletcher, that one
does not deserve the death penalty for having sex with another. The only thing that we could not conclude
is that the legal system cannot readily accommodate this kind of justice: provocation claims of Peacock's
variety are an everyday affair, sanctioned in many states and by the criminal law academy. Subjectivity is
neither new nor foreign to what most consider well-established and, for that reason, "objective" criminal law.
DIFFERENCE BETWEEN PROVOCATION AND BATTERED WOMAN SYNDROME

DEMONSTRATE SYSTEMIC BIAS IN THE LAW AGAINST WOMEN
Unfortunately, there is a good deal at stake in this kind of claimed objectivity. This is not about two cases with bad
judges but something a bit larger; it is about how the criminal law constitutes us and our relationship to the
political order. Deeply held views about women and their relationships to men as well as their position as
citizens reside in the criminal law. As I have argued above, every claim of defense is a claim not only between victim and
defendant but also between the defendant and the state (was she a vigilante, a traitor to the law, an aristocrat reenacting her
superiority?). When, in Watson, the trial court bars the woman's defense because she had the time to leave,
this is not only a claim that she should have left her husband, but also that she failed to defer properly to the
state (by choosing lawful alternatives). Similarly, the judgment of the court in Peacock is not only that he was
"right" to punish his wife but that he was right--did not offend the state--by "taking the law into his own
hands." Watson is a traitor and Peacock is a loyalist because the state measures allegiance by reference to
relational norms. The common law's overt judgment that a woman who kills her husband is fully traitorous,
and a man who kills to defend his marriage is partly patriot, remains two hundred years later . Time
transforms self-defense into a woman's treason; man remains aligned with the state. Blackstone: meet Catharine
MacKinnon.
If what is wrong with the law, for women, is the law's lack of sensitivity, its failure to sympathize, women's claims may be true but
they will fail to persuade. If subjectivity simply means that "my view counts, yours doesn't," it is as intolerant as an empty objectivity;
it can never go beyond an "apprehension of the world as self-evident" and risks becoming the privileged knowledge of a special body
of the clairvoyant. It is not sympathy that is required but humility (from both men and women), a recognition of the
ways in which the law absorbs and constitutes popular norms that it does not disclose and may even
disavow.
Planet Debate
17
Law Governing Domestic Violence Victims who Kill Abusers is Structurally Biased
Against Women
LAW HAS HISTORICALLY BEEN BIASED AGAINST ABUSED WOMEN WHO FIGHT BACK
Mira Mihajlovich, JD Candidate, 1987, Does Plight Make Right: The Battered Woman Syndrome,
Expert Testimony and the Law of Self-Defense, Indiana Law Journal, 62 Ind. L.J. 1253, p. 1256-7
As demonstrated, the number of wives killing husbands is low. Yet the law never has sympathized with abused wives
who fought back. This attitude was well articulated by the eighteenth century jurist, Sir William
Blackstone, who theorized that a husband killing his wife was comparable to killing a stranger; but a wife
killing her husband was comparable to killing the king and committing treason. Vestiges of this
anachronism remain, keenly evident in the disparity of media coverage of battered women who kill their male abusers and
batterers who kill their female companions. The "newsworthiness" of the trials of battered women who kill as
opposed to the killings of battered women is rather like the old adage that when a dog bites a man, that is
not news; but when a man bites a dog, that is news
Planet Debate
18
Self Defense Law Fails Women

SELF DEFENSE DOCTRINE BIASED AGAINST WOMEN
Joan H. Krause, Attorney-Hogan & Hartson, 1994, Of Merciful Justice and Justified Mercy:
Commuting the Sentences of Battered Women Who Kill, Florida Law Review, 46 Fla. L. Rev. 699, p. 7102
The doctrine of self-defense developed as a legal justification that, in limited circumstances, renders an
otherwise criminal act of violence acceptable . In order to limit this potentially widespread sanction of violence, the
application of the doctrine was limited to a narrow set of circumstances . Feminist scholars have charged that
these limitations reflect the development of self-defense doctrine as "a law for men," designed to apply to
the paradigm situations of sudden deadly attack or mutual combat. Thus, they have argued, the law is
unresponsive when women need to protect themselves. Under traditional self-defense doctrine, a woman may defend
herself only when she reasonably believes that it is necessary to use force against an imminent and unlawful threat of harm, and the
amount of force used must be proportionate to the threatened harm. In addition, many states require the defendant to retreat,
historically "to the wall," before responding with force.

Battered women have had trouble proving several of these elements. First, traditional self-defense law requires the amount
of the defendant's force to be proportionate to the threatened harm; thus, "deadly force may not be used unless the actor reasonably
believes that she is protecting herself against infliction of death or serious bodily harm." Often, however, abusers attack with
their hands, fists, or feet, or with objects not traditionally considered to be "deadly" weapons, such as chairs,
cigarettes, and hairbrushes. A woman who uses a gun or knife in response to such an assault may appear to
use disproportionate force, and may be prevented from arguing self-defense. The traditional concept of self-defense
does not recognize that hands, fists, and feet, not to mention various household objects, may indeed be deadly weapons when wielded
by an enraged man who is much stronger than his victim. Moreover, although many states are moving away from per se rules
prohibiting the use of a weapon against an unarmed aggressor, judges, juries, and prosecutors may retain traditional attitudes.
Second, self-defense may be invoked only when the actor reasonably believes that the threatened harm is
imminent. This requirement poses the greatest problem if the defendant acts when the abuser is not an immediate threat,
such as when he is sleeping (i.e., so-called "nonconfrontational" situations). To require a battered woman to wait until the
attack begins, however, may ignore her experience in the relationship. For example, the woman may be aware of preassault symbols, such as heavy drinking, that would not signify imminent danger to outsiders. In fact, the battered woman faces almost
the exact opposite of the traditional sudden attack: "the question is not whether he will beat her up again but when, and not whether he
will injure her but how badly or whether he will kill her this time." A court that allows the jury to consider past events as part of the
circumstances of the killing, rather than focusing solely on the moment of the killing, will be more open to battered women's selfdefense claims.
Traditional self-defense doctrine required the defendant to retreat from the encounter prior to using deadly force, unless the attack
occurred in the defendant's home (the "castle doctrine"). However, many jurisdictions invoked exceptions when the aggressor was a
cohabitant or had permission to be in the defendant's home, which clearly work against a woman who is beaten by her husband or
live-in companion. In addition, particularly at the trial level, the legal requirements of the duty to retreat are often
conflated with the question of whether the woman could have "retreated" from the relationship itself. A
court must be able to separate any applicable duty to retreat from the broader (and usually irrelevant)
question of "Why didn't she leave?"
Planet Debate
19

SELF DEFENSE LAW BIASED AGAINST BATTERED WOMEN
Elisabeth Ayyildiz, JD Candidate Chicago-Kent School of Law, 1995, When Battered Womens
Syndrome Does Not Go Far Enough: The Battered Woman as Vigilante, Journal of Gender and the Law, 4
Am U. J. Gender & L. 141, p. 144-5
Unfortunately, expert testimony on BWS is unavailable for many battered women who kill their abusers. Some feminist scholars argue
that current self-defense law is unable to deal fairly with battered women who kill because of underlying
gender bias. That is, the paradigms of self-defense law are not responsive to the circumstances under which
battered women kill. As a result of the bias inherent in the law and the myths held by society concerning battered women, such as
the "she could have just left" stereotype, judges often exclude evidence concerning the woman's perceptions and
circumstances. Moreover, even if there is not gender bias in the law itself, some commentators argue that judges do not admit
the evidence of BWS because they believe it impossible that a woman who killed her abuser acted
reasonably. Thus, even where BWS should have been available to a defendant, a judge may, in his or her
discretion, refuse to admit it.
Even if a judge admits evidence on BWS, a narrow interpretation of the self-defense theory may preclude the use of
BWS for some women. There may be a technical immanency problem. While some courts accept that immanency
need not equate with immediacy, others have rejected evidence of BWS where the abuser was asleep or the battered woman hired a
third party to commit the crime. Moreover, deadly force may be seen as an unreasonable and thus unjustifiable
response to a non-deadly threat. That is, using deadly force against an abuser who attacks with his fists, makes verbal threats
or is sleeping may be seen as excessive and, therefore, unreasonable.
SELF DEFENSE LAW DEVELOPED TO MEET THE NEEDS OF MEN

Gregory A. Diamond, JD Candidate, 2002, To Have But Not to Hold: Can Resistance Against
Kidnapping Justify Lethal Self-Defense Against Incapacitated Batterers?, Columbia Law Review, 102
Colum. L. Rev. 729, p. 736-8
Why does self-defense by battered women so strain the bounds of the general category of self-defense? "The law of selfdefense," notes Gillespie, "is a law for men." And, she continues, the common law doctrine of self-defense
developed in response to two types of situations: a sudden assault by a potentially murderous stranger, and
the escalation of a voluntarily undertaken fight from nondeadly to deadly force. The law of self-defense
evolved to authorize only that amount of force needed by an adult male facing dangerous circumstances.
That meant retreating if able; not reacting preemptively to threats; fighting, when necessary, solely with
one's fists, using no more force than necessary to repel an attack; not using a weapon unless a weapon was
being used against one; and then using a weapon to disable rather than to kill, if possible.
This model makes sense for its main purpose of deterring men from escalating barroom brawls into deadly
encounters, but it is predicated on several assumptions that translate poorly to the domestic sphere . The
antagonists are assumed to be strangers of comparable size, strength, and fighting ability, and are assumed
to lack any mutual history allowing either to assess the credibility of the other's threats. Retreat is assumed likely to be
effective if necessary, and comes at scant cost aside from embarrassment. Finally, of the two paradigmatic situations, it is assumed
that a robbery can generally be ended by either retreat or handing over things of value, and that a bar fight is an event in which one
participates voluntarily.
These assumptions apply poorly to battered women. Women rarely fight with strangers ; in self-defense they
generally kill intimates whom they know well enough to assess the credibility of their threats. Unlike strangers, their batterers
are motivated to exert lasting control over them. They are rarely equally matched physically with their
batterers and tend not to compete well in an unarmed fight. They often cannot evade a man posing a threat
to them; attempted retreat is more likely to escalate than end a conflict. Successful escape from the batterer
may come at enormous personal cost, as their physical and financial security and that of their dependents
may rest with him.
The significance of these distinctions is that the law poorly accommodates self-defense in the situations in which
women are most likely to require it. A woman's trigger for self-defense is usually not a stranger pointing a
gun at her or a combatant brandishing a broken bottle, but an intimate who may - often abruptly - exert violent
control over her. His initial unarmed attack may leave her unable to stave off escalating physical torture . She
cannot remove the threat by surrendering a thing of value; she is generally pursued and punished if she retreats . She is
not a voluntary participant in a fair fight; she is involuntarily the object of another person's desire to control her. She breaks
the law by defending herself using perhaps the only means not likely to fail.
Planet Debate
20

SELF-DEFFENSE LAW AND ITS APPLICATION BIASED AGAINST NEEDS OF BATTERED
WOMEN
Christine Noelle Becker, JD Candidate, 1995, Clemency for Killers? Pardoning Battered Women who
Strike Back, Loyola of Los Angeles Law Review, 29 Loy. L.A. L. Rev. 297, p. 302-3
Self-defense is the legal justification for the use of force in response to an imminent threat of unlawful
physical force. Generally, deadly force may be used only in response to a threat of death or serious bodily
harm. However, battered women are often treated unequally when they make self-defense claims. Two reasons
are generally suggested for such unequal treatment.
First, feminist scholars argue that there is an
inherent gender bias in the law of self-defense, rendering it

unable to deal fairly with the situation of battered women who kill their abusers . This inherent bias in the law
unfairly prevents battered women from presenting a self-defense claim.
Second, other scholars argue that it is not the law itself that is biased, but rather the way the law is applied and
interpreted. Thus, bias against women prevents judges and juries from seeing battered women's actions as
reasonable.
Therefore, battered women who kill their abusers often have difficulty making successful self-defense
arguments due to bias in either the law itself, or in its application. As a result of this bias, battered women are
often unable to convince the trier of fact that they had a reasonable belief in the imminence of the danger
and that deadly force was necessary, both of which are required elements for a successful self-defense
claim. Expert testimony on battered woman syndrome provides an explanation of the "reasonableness" of the battered woman's belief
in both the imminence of danger and the necessity of using deadly force.
SELF-DEFENSE LAW AS APPLIED INADEQUATE FOR BATTERED WOMEN

Cynthia K. Gillespie, Founder-Womens Law Center, 1989, Justifiable Homicide: Battered Women, SelfDefense, and the Law, p. 50
The law of self-defense, of course, is meant to apply equally to m en and women. Whatever ones sex, one has the right to take
anothers life if one reasonably believes that it is necessary to do so to avoid imminent death or serious bodily injury at the hands of an
assailant. On the surface, the law does not discriminate. In its application, however, the law treats men and
women very differently. The historical function of self-defense law (to spell out manly behavior in the kinds of
dangerous circumstances in which men traditionally have found themselves), together with the virtual ossification of the
law since its narrowing in reaction to the closing of the frontier era, have left it woefully unresponsive to
the needs of women defendants. Too often it simply cannot be made to apply to a womans actions
although there is no question that she sincerely believed she was defending herself against death or serious
injury. The result is that women are effectively deprived on the same right to self-defense that men have
always had under the law.
Three aspects of the modern law of self-defense in particular cause problems for women defendants : the
requirement that the threatened harm be sufficiently serious, the requirement that the threatened harm be imminent and,
in many states, the obligation to retreat or seek to escape from an attack before one can defend oneself against it.
SELF DEFENSE LAW DISCRIMINATES AGAINST WOMEN
Cynthia K. Gillespie, Founder-Womens Law Center, 1989, Justifiable Homicide: Battered Women, SelfDefense, and the Law, p. 182
The law of self-defense discriminates against women. The right to take an aggressors life to save ones
own is one of the oldest recognized by Anglo-American criminal law; and it is a right that must, of course, be
carefully limited. It is not in any civilized societys interest to encourage people to take the law into their
own hands or to sanction unnecessary killings. Over the centuries a number of rules limiting the right to selfdefense have been developed which seek to balance the private right against the public order. These rules ,
for the most part, have been written not by legislatures but by judges, virtually all of them male, in cases
predominantly involving male defendants. The result has been a law that permits men to exercise their
right to defend themselves in the situations in which men have customarily felt the need to do so, but it
does not permit women to exercise their right to self-defense in the situations in which they believe they
must do so.
Planet Debate
21
Self Defense Law Fails Child Abuse Victims

LEGAL SYSTEM POORLY SUITED TO ADDRESS KILLING BY CHILD ABUSE VICTIMS
Catherine S. Ryan, JD Candidate, 1996, Battered Children Who Kill: Developing an Appropriate Legal
Response, Notre Dame Journal of Law, Ethics & Public Policy, 10 ND J. L. Ethics & Pub Pol'y 301, p.
308-10
Shrouded for years behind the heavy veils of family silence and social ignorance, the battered child is slowly emerging as
one who presents a serious dilemma to the criminal justice system . The case of the battered child who kills an abusive
parent comes before the court in the enigmatic form of a violent murderer hidden beneath a facade of youth and innocence. As stated
above, the law has not contemplated a specific defense which would excuse a child who murders an abusive
parent. In fact, traditional self-defense theories presuppose that two adult males are involved in the conflict. Self-defense
theories have been slow to expand beyond this implicit scenario to embrace the realities of family violence.
Although self-defense was "one of the first exceptions to the Anglo-Saxon idea that the taking of a life is culpable regardless of the
circumstances," its "basic parameters were established very early and have changed remarkably little." One reason that self-
defense theories have been slow to expand is that life is the most highly venerated and protected right in
society. As a result, legally justifiable homicides have been carefully limited to instances of self-defense, defense of
another, defense of one's own habitation, capital punishment, killing in war, and some killings by police. These exceptions have
been narrowly carved out in an attempt to protect the sanctity of human life and discourage self-help and
personal vengeance.
Abuse-based defenses such as Battered Child Syndrome challenge this system of personal responsibility by
seeking to shift responsibility for a criminal act from the individual to an event or aspect of his or her
environment. This shift requires the law to abandon its credo that "the punishment should fit the crime" and
accept the belief that "the punishment should fit the criminal." These attempts to shift responsibility have
been met with judicial skepticism and social suspicion, yet they present legitimate challenges to the law's
responsibility to punish only those who are culpable for their acts and only to the extent of their culpability .
The challenge for the criminal justice system is to promulgate rules and standards that protect individual rights by promoting personal
responsibility while still providing the abused child who kills a fair trial that properly assesses his or her culpability.
CHILDREN KILLING ABUSIVE PARENTS HAVE DIFFICULTY MEETING SELF-DEFENSE

STANDARDS
311
Based on Justice Holmes' explanation of self-defense, the actor must have reasonably believed that he was
in imminent danger. Based on typical facts, it is clear why battered children who kill their abusive parents in nonconfrontational settings do not fit within the framework of traditional self-defense . The danger posed to the
child at the moment of the killing will often appear to be neither imminent nor reasonable to the average
person; but to the child involved in a long and continued cycle of abuse at the hands of a parent, the
constant and ongoing threat of abuse may make the child believe that the killing of his or her parent is
indeed necessary to ward off imminent death or great bodily harm.
Planet Debate
22

CURRENT SELF-DEFENSE LAW INADEQUATE TO DEAL WITH BATTERED CHILDREN
WHO KILL ABUSIVE PARENTS MUST REFORM THE STANDARDS
311-2
The battered child lives in a world which is strikingly different from his or her non-abused counterparts. As a
result, the child's perceptions of normal family relationships become skewed . With specific regard to the self-defense
strategy, the child's perception of "reasonable belief" is formed in response to years of oppressive and violent
abuse. Traditional self-defense theories fail to take into account the years of abuse. By looking at only the
homicidal event and it alone, the court denies the battered child who kills in a non-confrontational setting the
opportunity to explain the reasonableness of the act. In many situations, the abused child has picked up on a signal or
subtlety in the abuser's behavior that threatens a beating. In the analogous familial abuse situation of the battered woman, it has been
observed that the abused "may reasonably believe that their lives are at risk because of changes in style of
assault, or because the abuser says something that, in the past, has signaled great danger." The failure of
social service agencies to intervene and the unwillingness of family members to report the abuse also
contribute to the abused person's reasonable belief that his or her life is in danger.
Given the frequent absence of an outward act that causes reasonable belief in imminent harm, Battered Child Syndrome, as a
defense, requires that the law accept an alternative form of "reasonableness" founded in the subjective
beliefs and fears of the abused child, including past abuse at the hands of the deceased.
JUDICIAL OPINIONS EXEMPIFLY BIAS AGAINST SELF-DEFENSE CLAIMS OF CHILDREN
KILLING THEIR ABUSERS
Hope Toffel, JD Candidate USC, 1996, Crazy Women, Unarmed Men and Evil Children: Confronting
the Myths about Battered People who Kill Their Abusers, University of Southern California Law Review,
70 S. Cal. L. Rev. 337, p. 365-6
Several judicial opinions of cases already discussed in Part I above exemplify the biases and stereotypes that
confront battered children who kill their parents. The majority, concurring, and dissenting opinions of State v. Jahnke, are
worth analyzing in greater detail. The majority opinion marginalizes the prior abuse that Richard Jahnke and his
sister suffered by hardly mentioning it. Not surprisingly, the Wyoming Supreme Court affirms the trial court's exclusion of
the battered child expert at Jahnke's trial on the grounds that there was no showing of self-defense. The court is completely
unsympathetic to considering imminent danger from the abused child's perspective and describes selfdefense doctrine in traditional, confrontational terms.
The concurring opinion by Justice Brown vilifies Richard Jahnke: "Appellant is handsome, personable, intelligent and ready of
tongue. He is an all-American boy, except that he has a predilection toward patricide." Justice Brown also focuses on the
immediate circumstances surrounding the killing and ignores the prior abuse: "By no stretch of the imagination was
this a case of self-defense. Arming and barricading himself and lying in wait for one and one-half hours for his father's return is not
self-defense under the law."
CHILDREN MOST DISADVANTAGED BY SELF-DEFENSE STANDARDS

70 S. Cal. L. Rev. 337, p. 367
In sum, children are the most defenseless and powerless abused group in society, yet they are often denied a
fair defense when they kill to protect themselves. Traditional self-defense doctrine may hurt children more
than any other abused group because abused children so rarely kill during confrontations . Without battering
syndrome evidence, judges and juries have a difficult time conceiving of these killings as instances of selfdefense. It is vital for the protection of children that states adopt the viewpoint embodied in Janes and in the dissent of Jahnke, rather
then follow the example of Crabtree and the majority in Jahnke.
Planet Debate
23

SELF DEFENSE LAW BIASED AGAINST THE NEEDS OF BATTERED CHILDREN
Elizabeth L. Turk, JD Candidate, 1997, Abuses and Syndromes: Excuses or Jusifications?, Whittier
Law Review, 18 Whittier L. Rev. 901, p. 925
Parricide cases present society with both a moral and legal dilemma. In cases of parricide, the child is not only the
perpetrator of murder, but also the victim of long term physical, emotional and/or sexual abuse. Lack of
compassion for battered children is evidenced by the inadequate response of the criminal justice system by
refusing to admit evidence of circumstances surrounding parricide cases. A child who commits parricide
usually asserts self-defense to justify his act, however courts summarily reject this assertion because it does
not fit within the traditional self-defense paradigm .
States are slowly acknowledging the validity of a self-defense claim by a battered woman who kills her
abuser. However a similar defense is generally not extended to a child who kills a parent after years of
abuse. The psychological effects upon a battered child mirror those of a battered woman, and self-defense claims in parricide cases
are essentially identical to those asserted by a battered woman who kills her abuser. Therefore, it is logical to extend self-defense
based on past abuse to children who kill their abusers.
Planet Debate
24
Imminence Requirement Biased

IMMINENCE REQUIREMENT DENIES BATTERED WOMEN THE DEFENSE OF SELFDEFENSE
Whitley R. P. Kaufman, Philosophy Professor-University of Massachusetts, 2007, Self Defense,
Imminence, and the Battered Woman, New Criminal Law Review, 10 New Crim. L. R. 342, p. 345-6
This ambiguity about the meaning of "imminence" has, of course, very real and concrete implications for criminal defendants. Of
particular relevance to this essay is the question whether the imminence rule has been misapplied, or even whether it should not be
applied at all, in the case of battered women. A number of advocates of battered women have argued that the
imminence rule in practice denies women their right to self-defense against their abuser . Cynthia Gillespie, for
example, in her groundbreaking work Justifiable Homicide, argued that the imminence rule "has proved to be a major
obstacle in framing self-defense pleas for female defendants who have killed violent men," and that the
rule "often has the effect of depriving her of her right to self-defense altogether."
It is the nonconfrontational cases in particular that have received special attention, even though these constitute only a tiny
percentage of the cases in which battered women kill their abusers. In such cases, the woman attacks her abuser while he is
not currently threatening her, indeed sometimes when he is asleep or unconscious. In a case where a woman
kills her sleeping husband, the imminence standard arguably cannot be satisfied as a matter of law: as Richard
Rosen suggests, "the threat of death or great bodily harm was not imminent when [she] shot her husband, not,
at least, by any reasonable interpretation of the word imminent." But the same problem arises in all nonconfrontational
cases, albeit not quite as dramatically. Hence a woman may be precluded from asserting self-defense solely on the
grounds of the imminence rule, even if she satisfies all the other requirements of self-defense, including the
necessity for the use of force. This apparent paradox--how can force be necessary if the threat is not imminent?--has puzzled
many a commentator. But in fact it is no paradox at all: indeed, the very situation is illustrated by the case of Judy Norman.
COURTS APPLY IMMINENCE IN WAY THAT DISADVANTAGES WOMEN AND IMPOSES

UNEQUAL BURDENS ON DOMESTIC VIOLENCE VICTIMS
It turns out that the battered woman cases in my survey, like their male counterparts, raise imminence most often in
confrontational situations, where the defendant kills when she sees a gun, where the victim is advancing, or
during an actual brawl. If that is right, then the problem of the battered woman case may not be one of fact, but
of law. We do not ask of the man in the barroom brawl that he leave the bar before the occurrence of an
anticipated fight, but we do ask the battered woman threatened with a gun why she did not leave the
relationship. If, when courts are saying "imminence," they import meanings that demand retreat before the
confrontation, they are applying a rule that the law itself disavows (for any defendant). And, if that is right, we need
not subjectify the law for the disfavored; instead, we must deal with the potential for objective rules to contradict themselves, to
perpetuate meanings that they disavow.
Planet Debate
25
Imminence Requirement Should be Replaced

IMMINENCE JUST A PROXY FOR NECESSARY SHOULD REPLACE IT WITH A
NECESSITY REQUIREMENT
The first account, recently developed but increasingly influential, asserts that the denial of a self-defense
justification to such women as Judy Norman on the grounds that the threat was not imminent, even if the force
was necessary, is based on a serious misunderstanding of the purpose of the imminence rule. On this theory,
the essential element of self-defense is the necessity of the resort to force; the imminence rule has no
independent significance, but is merely a "proxy" or an "indicator" or a "translator" for necessity (we will
henceforth call this the "Proxy Thesis"). Thus for Jeffrey Murdoch, imminence is "merely a way of measuring
necessity"; it is an indicator of whether action is necessary and is thus merely a subordinate rule and should not be used
to disallow defensive force when that force is necessary. For Richard Rosen, the "concept of imminence has
no significance independent of the notion of necessity" ; it is a mere "translator" of necessity. Imminence is required only
because "of the fear that without imminence there is no assurance that the defensive action is necessary to avoid the harm." Alafair
Burke concurs: "the requirement of imminence is an imperfect proxy to ensure that a defendant's force is
necessary." Richard Schopp and Shana Wallace also see imminence or immediacy as an "indicator" of the existence of necessity,
rather than as an independent restriction. Paul Robinson tentatively concurs that the imminence "restriction is more properly viewed as
a modification of the necessity requirement. That is, as a practical matter actions taken in the absence of an imminent threat may not
be necessary." David Rodin states the claim more forcefully: "The point is that we cannot know with the
required degree of certainty that a defensive act is necessary until the infliction of harm is imminent...
Imminence, like the duty to retreat, is simply a component and corollary of the requirement of necessity" Our legal
tradition has, on this view, mistakenly come to take imminence as a distinct requirement, to the great detriment of battered women.
IMMINENCE SHOULD BE VIEWED AS THE IMMEDIATE NECESSITY OF A RESPONSE

RATHER THAN THE IMMEDIACY OF THE ATTACK
Colum. L. Rev. 729, p. 734-5
But the gravest hurdle many battered women face involves establishing the imminence of harm . Cynthia
Gillespie notes that Caroline Scott, a battered woman imprisoned for murdering her batterer as he prepared to
torture her, was not legally "entitled to fight back with a weapon until he was actually beating her severely
enough to make it clear that he was going to beat her to death or nearly so. By that time, of course, she
would have been rendered helpless to resist at all ... ." The situation of a battered woman who kills accordingly offers the
imminence requirement its greatest test. Some criminal codes have moved from considering whether the attack is
imminent to whether the force required to stave off or end the attack is immediately necessary . A leading
theoretical proponent of this change, Paul Robinson, offers this scenario:
Suppose A kidnaps and confines D with the announced intention of killing him one week later. D has an
opportunity to kill A and escape each morning as A brings him his daily ration. Taken literally, the
imminent requirement would prevent D from using deadly force in self-defense until A is standing over him
with a knife.
Robinson concludes that what matters is not the immediacy of the attack, but the immediate necessity of a
response to an upcoming attack. "If a threatened harm ... cannot be avoided if the intended victim waits until the last moment,
the principle of self-defense must permit him to act ... as early as is required to defend himself effectively."
Planet Debate
26

MUST ADJUST SELF-DEFENSE LAW SO THAT IT PROTECTS WOMENS RIGHTS TO
DEFEND THEMSELVES FROM THE THREATS THEY ARE MOST LIKELY TO FACE
Cynthia K. Gillespie, Founder-Womens Law Center, 1989, Justifiable Homicide: Battered Women, SelfDefense, and the Law, p. 182-3
That is sex discrimination, and the solution is obvious: we must fashion a law of self-defense that allows both men and
women to defend themselves in all of the threatening situations that they are likely to face , but that still protects
societys interest in preventing the wanton or unnecessary taking of life. We do not need a different law for men and
women; still less do we need separate laws for battered women and everybody else. Women are not special
victims who need special treatment from the law. Women are equal citizens who need and expect the same
right to defend themselves that men have, in the circumstances in which women need to exercise that right .
It is not equal treatment to tell women that they may defend themselves if they should stumble into the
male scenario that the law contemplatesa one-time confrontation with an armed stranger of the same gender in a public
placebut that they may not defend themselves in any of the situations where they are most apt to be
threatened with serious injury or death. Women need and expect the same right to self-defense that men have, not just on
paper but in fact.
This does not mean that we must throw out the present law in its entirety and start over. Nor does it mean making radical changes in
long-established legal principles. What is needed is some adjusting of the present rules so that the law can more
fairly protect the right to self-defense of everybody who needs to use it. This would not be a novel undertaking.
Although the general principle of self-defense has remained the same for many centuries, the law has
shown itself to be remarkably flexible. As we have seen, it has changed a great deal in its details in response to societys
needs at different times and places. In the middle ages it was quite unfettered, reflecting the dangerousness of the times and the wide
availability of personal weapons. As England became more urban and orderly, the right to self-defense was gradually narrowed but
did recognize that it was sensible to apply different rules to different self-defense situations (the brawl that turns deadly and the sudden
assault by a homicidal stranger). The American frontier, facing conditions not unlike those of Medieval England, required a swing
back again to a much broader right of self-defense. Since then, the settling of the country, the growth of urbanization, and effective
law enforcement have caused an understandable narrowing of self-defense once again. It is my argument that justice requires a slight
easing of the rules once more to accommodate not new but newly acknowledged conditions.
FAILURE OF THE STATE TO PROTECT BATTERED WOMEN JUSTIFIES RELAXATION OF

THE IMMINENCE REQUIREMENT
Having set out the underlying rationale for the imminence rule, it remains for us to address the problem of the application of this rule
to battered women. This discussion must be more tentative, given the enormous complexity of the issue and the vast literature on the
subject, and there is no attempt here to settle this debate. Nonetheless, if the argument of this essay is correct, then the debate itself has
been so far conducted on mistaken premises about the rationale for the imminence rule. A proper understanding of the
imminence rule demonstrates that, even as regards battered women, there are strong grounds for retaining
the requirement in its present form. It should go without saying, of course, that to make such an argument is not in
any way to diminish the seriousness of the problem of domestic violence . The very limited issue here is whether the
solution to this problem is the suspension or alteration of the imminence restriction.
The thesis of this essay is that the imminence rule reflects a powerful presumption against the individual using
force in her own protection. Even if one accepts this thesis, however, it is possible to argue that certain individuals are entitled
to a waiver of the imminence rule. For there is an important corollary of the thesis not yet made explicit: if the imminence
restriction is premised on the fact that the state can otherwise provide protection against violence, it follows
that if the state is unable to do so then the imminence rule is suspended. In that case, the right to use
preemptive (or even retaliatory force) could, it might be argued, revert back to the unprotected individual or group.
Hence one way of interpreting (or reconstructing) the position of battered women advocates is that they can
endorse the thesis of this essay, but claim that battered women are not adequately protected by the state, and hence
should be exempted from the imminence rule.
Planet Debate
27

INABILITY OF SELF-DEFENSE DOCTRINE TO ACCOUNT FOR BATTERED WOMEN
KILLING THEIR ABUSERS JUSTIFIES ITS REPLACEMENT
Jeffrey B. Murdoch, JD Candidate, 2000, Is Imminence Really Necessity? Reconciling Traditional Selfdefense Doctrine With The Battered Woman Syndrome, Northern Illinois University Law Review, 20 N.
Ill. U. L. Rev. 191, p. 191-3
The application of traditional self-defense law to situations where battered victims have killed their attacker has proven problematic
and resulted in a lack of uniformity regarding the disposition of these cases. Since the late 1970s, courts have been forced to deal with
the question of whether and how the Battered Woman Syndrome can be used in a defense when a battered victim kills her abuser.
Many courts have refused to give a self-defense instruction to the jury in these cases when the killing occurred in a nonconfrontational situation and the danger was consequently not imminent. Other courts have admitted evidence of past abuse to help the
jury assess the reasonableness of a battered woman's belief that harm was imminent in the context of a traditional self-defense claim,
and some legislatures have codified this view. Another approach is to allow Battered Woman Syndrome evidence to support an
insanity defense. Such evidence has also been accepted when the defendant interposes duress as a defense to other types of charges.
Commentators have similarly recommended different approaches to the question of whether, and how, to use this sort of evidence.
Scholars have criticized traditional self-defense law as being gender biased. Conversely, the application (or misapplication) of the law,
rather than its substance, has been found to be the problem. When a theory seems incapable of dealing with situations
for which it was purportedly developed, a reexamination of the theory is warranted . Circumstances near the
fringe of a theory's scope typically reveal weaknesses, for theories are designed to deal with the ordinary
situations for which they have been crafted. The inability of traditional self-defense law's to handle
situations where a victim kills a batterer in a non-confrontational situation in a manner that is morally and
intuitively acceptable suggests that a look at its theoretical underpinnings is appropriate . This comment will
focus on whether imminence is a necessary condition in a claim of self-defense or if there are other legitimate ways to prove that a
killing was necessary such that we, as a society, would consider it justified.
Planet Debate
28
Imminence Requirement Unnecessary

PREEMPTION CAN BE MORALLY JUSTIFIED
Imminence, and the Battered Woman, New Criminal Law Review, 10 New Crim. L. R. 342, p. 353
Ferzan is right to insist on the distinction between imminence and necessity; however, she is wrong about the moral basis
for the imminence rule. It is certainly true that self-defense is justified because it is a response to an unjust
aggression. The problem, however, is that an act of aggression does not suddenly become unjust at the very
moment of imminence. Someone who is planning and preparing an unjust attack on me is already in the wrong,
and I have the high moral ground against him even before he commences his attack. It is not plausible to
insist that I must in every case wait until the attack is about to happen in order to be morally justified in
taking action to protect myself. It is certainly true that the earlier one intervenes, the more likely it is that one is mistaken about
the purported attacker's intentions (and the less chance a genuine aggressor will have to change his mind and withdraw his attack).
However, it is equally true that the longer one waits before resorting to defensive force, the more one risks missing the window of
opportunity to protect oneself. Surely there are some cases where preemption against a planned aggression is
morally justified. Indeed, this is just the argument of the battered woman: it is unreasonable to expect her to
wait until an actual or imminent attack in order to protect herself.

Even more damaging to Ferzan's thesis is the fact that, as she recognizes, the state is not prohibited from acting
preemptively in the use of its police power. But this would make no sense if she were right that morality requires
that the use of force not take place until the moment of imminence. It is compelling evidence against her
argument that morality does not in fact require police to wait until an attack is imminent , nor do we think that
the police thereby become immoral "aggressors." Quite the opposite: we insist that the police intervene as early as
possible, once it is determined that an unjust aggression is underway (i.e., there is some sort of overt act). Indeed, that
is just what it is supposed to do in protecting the battered woman (its failure to do so is precisely the reason that has been given for
allowing the woman to use force herself). But then of course there is no intrinsic moral argument against the morality
preemptive force. And this only raises the same question on which the Proxy Thesis founders: why should what is morally
permissible for the state be impermissible for the individual?
of
Planet Debate
29
AT: Arguments Against Reforming Imminence Requirement

IMMINENCE NOT STRICTLY CONSTRUED NOW
My survey shows that the important question is not whether the law has become too soft or subjectified but what we mean by its
objectivity. The case law shows that imminence has many meanings; indeed, imminence often operates as a
proxy for any number of other self-defense factors--for example, strength of threat, retreat, proportionality, and
aggression. Perhaps more importantly, my survey shows that the conventional image of imminence may be incorrect. It is widely
believed by scholars that the "problem" of imminence is one of too much time between the threat and the
killing. If my survey is right, however, most judicial opinions raising imminence do not involve long periods of
time between the threat and the killing. They are cases of weak threats and extended fights, cases in which
the defendant is struggling with the victim, is faced with a gun, believes that the victim is advancing, or
hears a stranger in the woods outside his home. This should confound traditional doctrinal understandings
of the term "imminence" (which presume imminence as relevant only in nonconfrontational "waiting"
cases). Indeed, it presents strong evidence supporting my hypothesis--that imminence carries undeclared meanings.
This has important implications for both the law of self-defense as well as our image of the problem of battered women. The law of
self-defense, if I am right, is far from as settled or coherent as it is assumed to be; its meaning and theory remain, in my
view, largely unresolved. What seems so objective--the status quo--turns out to be a good deal more complex and
contingent than has been assumed. Indeed, it is even possible that the law, through imminence, contradicts itself: for example,
if imminence is really asking whether the defendant had a means to escape the violence, it may function as a retreat rule in
jurisdictions that do not require retreat. What is more interesting is that this failure of objectivity--the potential for contradiction-predicts the possibility of injustice in the battered woman cases.
Planet Debate
30
Deadly Force Against Private Tyrants Morally Justified

DEFINITION OF PRIVATE TYRANNY
of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 757, p. 762-3
In instances where the very lives of the battered are threatened, these persons -the vast majority of whom are
women-occasionally respond by taking the life of the batterer. In the criminal cases that ensue, the claim of a
syndromic response to what is often a long history of battering may be attempted as the basis of an excuse ,
in order to offset the commonest infirmities that these matters tend to present as cases of self-defense-a lack of fulfillment of the
justificatory requirements of imminence, necessity, or proportionality.
Relationships that fit the mold of private tyrannies are not identical to battering relationships. Although battering may well play a role
in their maintenance, it is neither a necessary nor a sufficient condition of their existence. In fact, private tyrannies may be
organized and maintained on a variety of different terms. These terms may evolve, at the discretion of the person I am
denominating the tyrant, in response to an endogenous shift in preferences, an exogenous change in circumstances, or both. The
condition that is necessary to the maintenance of a regime of private tyranny is that the life of at least one
person who lives or formerly lived in the same household with the tyrant be subject to his domination and
control in respect to such objectively important elements of everyday life that a reasonable member of
society would not ordinarily consent to live under the same terms and conditions and would not view the
consent of any other person to live under such circumstances as a rational exercise of choice. As a matter of
rational reconstruction, then, the structure of private tyranny and its relationship to the concept of consent is
analogous to the much-referenced but little demonstrated example of voluntary slavery. It is not a subject to
which the idea of consent lends any justificatory distinction.
KILLING OF PRIVATE TYRANTS IS MORALLY JUSTIFIED
The claim I write to advance is, on first encounter, a claim about moral judgment. It is that the killing of a private
tyrant is, at times, a morally justified act. Later, I shall put what I take to be the more vexatious case: that tyrannymurder should sometimes be treated as a justified act under the criminal law . Within my account, it will become
clear that I intend such acts to be understood as both deliberate and rational, not, among alternative premises, as suddenly provoked or
the product of rationality overturned. The full logic of my position is that these killings should be a matter of neither
culpability nor excuse and that, because we should regret their necessity more than their occurrence, the actor should go free.
Planet Debate
31
Deadly Force Against Private Tyrants Morally Justified

KILLING PRIVATE TYRANTS IS MORALLY JUSTIFIED
To map the moral essence of the Norman case and all those like it, we must, for the moment, set aside the issue of legal
culpability when the subject of what I have been calling a regime of private tyranny kills her tyrant . There is no
doubt that the specific facts of particular cases may warrant different legal outcomes. Nothing I propose to consider here means to
shake that tree of doubt. Indeed, I am not suggesting that I am entirely free from doubt about where an analysis of Judy Norman's
actions and non-actions ought to be placed within the new legal schema that, in the next section, I will attempt to build. The issue
for now is the moral foundation on which any such attempt ought to be built, and it is that inquiry with which we
should begin. To do so, I want to hold up to normative scrutiny the claim that one who is the subject of a private
regime of tyranny may deliberately and knowingly kill her tyrant without moral condemnation . This act I shall
hereafter designate "tyranny-murder."
The moral foundation on which my claim rests is this: Public regimes of tyranny are humanly intolerable
and radically unjust. Consent does not maintain them, and the coercion necessary to replace consent must be made an operative
condition of people's lives. Coercion must therefore be fashioned into a set of devices that have reliable deterrent
strength. It must convince the subjects of the regime that freedom is unredeemable at any price that they can
afford to pay. Torture, surveillance, arbitrary invocations of authority, imprisonment or death for any
infraction or supposed infraction against the power of the regime-all these become the devices through which
the forces of deterrence against personal and collective freedom are maintained.
For the victims of tyranny, life under these regimes approaches and possibly even surpasses arbitrary death; it is,
in fact, a kind of death, the death of the soul. So evil are these regimes for what they take away from the
capacity to lead good lives that the moral permission that people have to liberate themselves from public
tyranny does not suffer the slightest revocation if the killing of the tyrant is its cost. Morally, his death may
be a misfortune but it has no effective cost.
TYRANNY-MURDER JUSTIFIED BECAUSE IT IS A MORALLY LEGITIMATE RESPONSE TO
THE TYRANTS ACTIONS
So much for moral forfeiture in the case of the private tyrant. The question remains, what is the moral status of a
subject of the regime who commits a tyranny-murder? When she cannot otherwise reasonably expect to
save her own life or that of others-those as or more vulnerable than she-or reasonably expect to secure her own or their freedom
and security, we should be prepared to wash her clean. The reason may sound as much in rational choice theory as in
traditional morality. It is this: Once a regime such as I have described clamps down on a life, the most crucial of its
attributes-freedom, personal safety, and on-goingness itself-are placed at deliberate risk. As I stipulated at the outset,
the consent of no one to such an arrangement should we take as binding, both because we cannot assume the consent to be voluntarythe epistemic problem, once again-and because we should not, as in the case of "voluntary" slavery, proffer the community's
benediction, whether the consent be voluntary or not. If this is so, then it cannot be morally objectionable for the
individual who has intentionally and unilaterally created these risks to find himself at risk. This dreadful state
of equivalence is the residue of his own acts, his will, his purpose. Which of these two should then suffer the
greater risk, the subject of the regime or the tyrant? What rational moral regime could prefer the tyrant?
None, it seems to me.
It would seem both just and proper for the criminal law to align itself with this moral stance.
Planet Debate
32
Private Tyranny Worse than Public Tyranny

PRIVATE TYRANNY WORSE THAN PUBLIC TYRANNYJUSTIFIES TYRANT MURDER
The force of that blunt insight may be dampened by legal, social or political factors in the terrible instance
of private tyranny. But its moral force is not averted by these or any other factors. Comprehensive private
domination is tyranny. It extracts from its victims the same costs as does public tyranny-perhaps a few
more. Indeed, at its very worst, private tyranny may be far worse than public tyranny.
Like its public counterpart, private tyranny is an abduction from liberty, from self-governance, and from the rule of
law. But this abduction is made more terrible by the knowledge of its subjects that all around them are people
otherwise like themselves, people leading free lives. Its terrors are likely to be worse than in the public case for at
least one other reason. Whatever the exactions of the tyrant, his paucity of subjects may raise the intensity and
regularity of suffering beyond that experienced by only an exceptional number of individuals within a public
regime. Its humiliations and the self-torture that they impose are most likely to be worse, as well, for out
beyond the confines of the regime is law and the hope, if not the promise, of just outcomes. But the tyrant's
subject cannot get to law, or, if she does, cannot be permitted to rely on law, if the tyrant is competent at
conducting the very centerpiece of his business. Since the essence of tyranny is that its rule is the only law, the tyrant
must ensure that his subject has no reasonable alternative to his law. If the subject of such a tyranny kills
her tyrant where there is no reasonable alternative to remaining his victim, her choice will have been
between her own spiritual death or his murder. If there is no greater moral defense of private than public
tyranny, then there is no moral basis for distinguishing the value of his life from that of the public tyrant.
OPPOSING PUBLIC TYRANTS NOT UNIQUELY MORE MORAL THAN OPPOSING PRIVATE
TYRANTS
There are, to be sure, important differences between public and private tyranny, though they should not deflect
the basal force of our moral judgment. One obvious difference that does not reduce to essential moral terms,
though it would be a convenient haven for our oncoming legal judgment were we to think so, involves the size of the afflicted
populace and the temptation to think that the numbers have moral relevance. We might well think that the killing of
a public tyrant is specially justified by greater numbers, by the liberation of an entire people. But consider the case of a single escapee
from a tyrannical regime. At the border, she faces an agent of that regime who undertakes to restrain her exit by force. Absent
reasonable options, the single victim of public tyranny is surely entitled to free herself by force, and if
necessary, to kill with equal justification the tyrant or his agent. Each life within the tyrant's regime is a
sufficient measure of moral desert: the justification of individual freedom does not depend on the
aggregate.
Planet Debate
33
Private Tyranny Worse than Public Tyranny

PRIVATE TYRANNY JUST AS HARMFUL AS PUBLIC TYRANNY
In the first section of this essay, I described the structural elements of regimes of private tyranny. By means of such regimes, I
have been contending, individuals within our society may come to dominate one or a small number of other
individuals so extensively as to rule their lives, destroying their ability to exercise choice and personal liberty
within the ambit of autonomous preference that would otherwise be theirs. The person who arrogates to himself such power- the
private tyrant, as I have been referencing him-exercises his control over these others by creating a vicious and rigid
regime of personal politics and law. Within this structure, the tyrant becomes the sole executive, legislator and
adjudicator of those aspects of existence over which he chooses to exercise dominion. To maintain this system,
the tyrant polices his subjects' lives, securing obedience to his authority through the threat of force, the use
of force, or both.
A regime of private tyranny is a cruel mimicry of the role of the state, usurping its functions even as it
distorts them in the service of a single, illegitimate end. That end is the gross maldistribution of the benefits and burdens
of human existence, such that, as in the case of the public tyrant, the private tyrant is benefitted in whatever ways
and to whatever extent he may choose by burdening his subjects in whatever ways and to whatever extent
he may choose.
These burdens need not perfectly reinstate the tortures and terrors of the most extreme regimes of public
tyranny to be violative of our most basic social and political norms: that each person has an equal right to the liberty
of her person and property and to the legitimate pursuit of her own welfare, unless these rights have been overborne by the due process
of the law. The intentional destruction of liberty and welfare by someone who has substituted an entirely selfserving private system of rules for the legitimate processes of the law deserves our deep condemnation .
Planet Debate
34
Abusers Forfeit Their Right to Life

KILLING ABUSERS MORALLY ACCEPTABLE UNDER FORFEITURE THEORY THE
ABUSER FORFEITS THE RIGHT TO LIFE
Joshua Dressler, Law Professor-Ohio State University, 2006, Battered Women and Sleeping Abusers:
Some Reflections, The Ohio State Journal of Criminal Law, 3 Ohio St. J. Crim. L. 457, p. 465-6
What I think is going on here is an implicit assertion of one potential argument for justification, namely, the
moral theory of forfeiture. That is, a person, by his willful, ongoing, egregious conduct may forfeit his right
to life. Therefore, termination of his life constitutes no socially recognized harm to society. Thus, Judy Norman
was justified in killing her tormenter, not because her conduct was reasonable to the clouded mind of a
syndrome victim, but because J.T. Norman had it coming. By acting as a monster for all those years, he
forfeited his right to life. J.T.'s death constituted, as I have previously put it, "a mere blip on society's social-harm radar screen."
As one philosopher has critically expressed the significance of the forfeiture theory, the wrongdoer "no
longer merits our consideration, any more than an insect or a stone does."
Planet Debate
35
Retribution/Vigilantism Against Batterers Morally Just

BATTERED WOMEN WHO KILL ABUSERS ARE MORALLY JUSTIFIED VIGILANTES
Am U. J. Gender & L. 141, p. 142
Under a retributivist, or repaired crimes analysis, a batterer gains unfair advantages over a woman every time
he beats her; he gains domination, power and the right to disregard laws against battery. Thus, a woman who kills in selfdefense removes these unfairly won advantages. "Arguing that the man's death corrects past wrongs may
seem like vigilante justice. Indeed, those arguing that battered woman's syndrome is dangerous fear that it
allows "a private right to impose the death penalty.'" But is this necessarily bad? If a "morally justified"
person is one who acts after correctly evaluating all conflicting demands, can a woman be morally justified
in killing her batterer?
This paper first discusses battered women who kill their abusers and Battered Woman's Syndrome ("BWS") as an element of selfdefense. Section II contends that BWS is not the justice system's only appropriate response to battered women who kill. Section II
argues that battered women who kill their abusers are morally justified vigilantes . Section III of this paper concludes
that since battered women's acts are morally justified, the justice system should encourage jury nullification
for battered women convicted of killing their abusers.
VIGILANTISM PROVIDES MORAL JUSTIFICATION FOR KILLING ABUSERS

Am U. J. Gender & L. 141, p. 146-7
BWS is but one moderate reaction of the judicial system to the plight of battered women. As discussed above, BWS may not reach far
enough to help many women. It may not express the community's sense of outrage at the violence done to women and its sanctioning
of at last seeing justice done. Accepting the battered woman as a vigilante is one means by which the community
and justice system can find a battered woman morally justified in killing her abuser .
Vigilante is generally interpreted as a "pejorative word, and it is used to criticize or warn. It is a powerful word that suggests willful
violence masquerading as justice. It is a delegitimizing term ... [that is both] a reproach and a warning." To some, vigilantism equates
with racism.
As with any term, however, these negative connotations are not the only ones possible. Vigilant, for example, is an
adjective with positive connotations - society respects a watchdog that is ever-vigilant. A neutral definition describes
a vigilance committee as "a group of persons organized without legal authorization professedly to keep
order and punish crime when ordinary law enforcement agencies apparently fail to do so." Vigilantism is
thus equated with taking the law into one's own hands. In the context of battered women who kill, vigilante
should be seen as a word connoting justice and empowerment.
VIGILANTISM MORALLY JUSTIFIED METES OUT APPROPRIATE PUNISHMENT
Am U. J. Gender & L. 141, p. 147-8
Second, a distinction exists between organized and spontaneous vigilantism. That is, for some, organization is an essential part of
vigilantism while for others, vigilantism occurs when "bystanders not only apprehend a criminal but also mete
out punishment themselves." A spontaneous vigilante, thus, may be the actual or potential victim herself. The
battered woman is by definition a victim, one who has not received justice, one who has not seen her batterer
punished for the abuse he has heaped upon her. Thus, by killing her batterer, the battered woman becomes a
spontaneous vigilante - she apprehends a criminal that the law has failed to bring to justice and metes out
the punishment he richly deserves.
Planet Debate
36
Retribution/Vigilantism Against Batterers Morally Just

SOCIAL CONTRACT THEORY PROVIDES JUSTIFICATION FOR VIGILANTISM
Am U. J. Gender & L. 141, p. 151-2
Vigilantism as a permissible mode of self-help for battered women may be justified under social contract
theory in two ways. First, the breakdown of the social compact occurs when the state fails in its obligation to
protect the individual. This breakdown justifies the individual's resort to self-help. Second, women were not part of the
original contract and thus may not be required to adhere to its obligations.
Some theorists argue that law and legal systems developed as a desirable alternative to private justice. Social contractarians , in
particular, argue that the individual, in giving up the norm of private vengeance, is entitled to the state's
protection. Thus, the "central claim of contract theory is that contract is the means to secure and enhance individual freedom."
Under social contract theory, if the state fails in its obligation to protect citizens, the government is
considered dissolved and the people are entitled to provide for their own protection. One philosopher concludes
that where the state fails to protect its citizens, protecting oneself is not considered civil disobedience or vigilantism. One may
extrapolate this premise to conclude that vigilantism is morally justified by the state's failure to uphold its end
compact.
of the
If one accepts social contract theory, one accepts that individuals are members of the state and deserve
physical protection. One feminist, however, has argued that women are excluded from the original social contract
since only men consented, or were allowed to consent, to the social compact. Social contractarians such as John Locke and Thomas
Hobbes posited that women were a disruptive influence who could bring about the state's destruction because they were incapable of a
sense of justice. Women, therefore, were subjugated to men since they lacked the capacity, i.e., the sense of justice, to enter into the
social contract, and were thus naturally subversive of the political order. Since women are not part of this social contract,
they may not be bound by the contractarian stricture against self-help.

VIGILANTISM IS THE ONLY VIABLE RESPONSE TO DOMESTIC VIOLENCE GIVEN THE
FAILURE OF THE STATE AND SOCIETY TO PROVIDE PROTECTION
Am U. J. Gender & L. 141, p. 153-5
The Supreme Court, however, leaves abuse victims without recourse. While the Court discourages vigilantism, it also
holds that the United States Constitution provides no protection for victims of abuse:
Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of
its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a
guarantee of certain minimal levels of safety and security.
This absence of any affirmative duty by states to protect individuals against private violence, makes
vigilantism one of the few viable options for victims of domestic violence.
Stories about battered women are replete with failed appeals to police, courts, social service agencies,
churches, friends and neighbors.
Take, for example, Judy McBride, a victim of battering who repeatedly called the police only to be told that they would not get
involved because hers was a domestic violence case. She tried calling a family therapy organization, but the telephone number was not
in service. A Catholic social service group told her to try and work things out with her husband. McBride's husband continued
tormenting her after she filed for legal separation. Ultimately, McBride hired someone to hurt her abuser. The abuser was killed and
McBride was sentenced to life in prison without parole.
The failure of the criminal justice system, where the state does not or will not enforce the law, is one reason
vigilantism continues to garner sympathy from contemporary America . One author notes, "the American
tradition has been for citizens to trust themselves more than they trust the government." Why then is not
this same sympathy extended to victims of domestic abuse who become vigilantes?
One answer may be found in vigilantism's uniquely male tradition. Vigilante groups in the nineteenth century were composed of most
of the adult males in the community, with the wealthiest and most powerful men as leaders. Women, who were not part of the
community's civic life, were not members of vigilante groups. The modern bias towards the acceptance of the
archetypal vigilante as male may be seen in their portrayal.
Planet Debate
37
AT: Arguments Against Vigilantism

CONCERNS ABOUT VIGILANTISM IMPACTS NOT RELEVANT TO BATTERED WOMEN
VIGILANTES
Am U. J. Gender & L. 141, p. 159-60
Vigilantism raises the specter of anarchy, of society run amuck. As applied to the battered woman, however,
vigilantism may be more palatable because concerns about control, accountability and racism are not
applicable. One concern with vigilantism is the lack of control over a group's activities. This concern is not
applicable to a battered woman who will presumably kill only once. As a one-time offender, she is not likely to
form a group whose purpose is to search out and punish batterers . In fact, most battered women who kill have no
history of prior violent behavior and have far less extensive criminal records than other women charged with homicides.
Accountability is another concern for those opposed to vigilantism. Because it is no mystery who killed
when a battered woman kills her abuser, the battered woman will be held socially, if not criminally,
responsible; she does not escape unknown or unacknowledged . Moreover, the battered woman has already been
punished for years by her batterer. She will continue to be punished for killing her abuser in so far as the stigma, guilt and shame will
haunt her for years.
Racial concerns are similarly not applicable to the battered woman vigilante. While the term vigilantism
connotes the lynch mobs of the South, domestic violence begins and ends with the abuser and the abused. It
may be that there are instances where a white woman kills her black abuser; however, the impetus for most
vigilante behavior is not race but the battered woman's need to save her own life . Indeed, this proposal may
actually help more black women than white since all-white police forces traditionally ignore black-on-black violence. A black woman
may justifiably have less faith in the police than a white woman and may be more justified in resorting to self-help.
BATTERING SYNDROME DOESNT SPARK VIGILANTISM

70 S. Cal. L. Rev. 337, p. 375-6
Battering syndromes, however, do not provide a license to kill for vigilantes. The purpose of battering
syndrome evidence is to assist judges and juries in determining whether the defendant honestly and
reasonably believed that lethal force was necessary for survival. If so, it is not vigilantism . People may be
frustrated over the inability of law enforcement to curb domestic violence, and vigilante groups may develop in response, but the
purpose of battering syndrome evidence is not to incite society's frustrations and elicit sympathy for the
defendant. Battering syndrome evidence may indeed show that a lack of response by law enforcement and
other agencies factored into the defendant's reasonable perception of imminent danger, but again, the focus is
on the reasonable actions taken in the course of protecting oneself.
VIGILANTES DO NOT OPERATE OUTSIDE THE LAW
Am U. J. Gender & L. 141, p. 148
Third, "the line between self defense and vigilantism may be seen as both thin and negotiable ." A vigilante,
therefore, is not necessarily outside of the law. Rather, a vigilante may be one who does not wait for the state
when a crime has been committed, when the "moral order" has been ruptured. The battered woman should
be seen as operating within the law. Self-defense may be technically unavailable for the battered woman due to the reasons
discussed above. Moreover, the battered woman has often waited for the state to repair the moral order and bring
her abuser to justice, to no avail. Thus, rather than continue waiting for the state, all the while receiving
beating after beating, the battered woman, by killing her abuser, repairs the moral order herself .
Planet Debate
38
AT: Arguments Against Vigilantism

RELLIANCE ON SELF-DEFENSE JUSTIFICATION AGAINST KIDNAPPERS FOR BATTERED
WOMEN SOLVES VIGILANTISM CONCERN
Colum. L. Rev. 729, p. 758
This analysis will admittedly fail to reach many heinous examples of battering. A one time occurrence, or an extended series
of batterings in which a woman has a clear and viable opportunity to leave a situation - in short, situations where the batterer
does not exert a sufficient level of control over the victim - will not be readily amenable to construction as kidnapping.
That this analysis can distinguish between cases where self-defense is and is not justified is not a
deficiency, however; doing so may allay courts' concerns that instructing jurors to consider a self-defense
claim based upon kidnapping would be tantamount to authorizing vigilantism.
NO EVIDENCE THAT BATTERING SYNDROME DEFENSES PROMOTE KILLING
70 S. Cal. L. Rev. 337, p. 379-80
In sum, if society judges defendants only by the traditional self-defense doctrine, which looks at everything
from the perspective of what a typical male "stranger" would do to protect himself, then self-defense
killings by intimate partners or family members will never be understood, but instead labelled vigilante
justice. It is a limited perspective that finds battering syndrome defenses to be an evasion of responsibility,
irrelevant, and like all other abuse excuses. In addition, there is no evidence that battering syndrome defenses
promote killing. While the legal community needs to reform the current characterization of battering syndrome defenses, doing
away with them altogether would strip battered people of an effective way of communicating their experiences to nonabused members
of society.
Planet Debate
39
Retributive Theory of Justice: Moral Punishment Requires

Focus on Desert
RETRIBUTIVE THEORY OF JUSTICE
The new retributive ideal can be summarized as follows:
A just system of law imposes a fair burden of self-restraining obedience on its citizens, offering them in
return the benefits that flow from the law-abiding self-restraint of others . One who wilfully breaks the law
of such a system disturbs that fair balance of benefits and burdens. . . . Punishment restores that fair balance
by imposing on the criminal a burden which wipes out her unfair advantage. . . .
RETRIBUTIVE THEORY OF JUSTICE FOCUSES ON JUST DESERTS
The oldest theory of punishment, and ironically the one to which society most recently has returned, is retributive
justice. This theory, often described as a theory of "just deserts," requires that every crime be "repaid" in the form
of punishment, with the proper amount of punishment determined by the severity of the crime. Retributive
theories of justice can be traced back to the Code of Hammurabi, and are exemplified by the Biblical instruction to take "an eye for an
eye."
RETRIBUTIVE JUSTICE EVOLVES FROM KANTS CATEGORICAL IMPERATIVE

REQUIRES THAT CRIMINAL PUNISHMENT BE TIED TO AN INDIVIDUALS CULPABILITY
Peter Arenella, Professor of Law, UCLA Law School, 1992, Convicting the Morally Blameless:
Reassessing the Relationship Between Legal and Moral Accountability, UCLA Law Review, 39 UCLA L.
Rev. 1511, p. 1534-5
"Just desert" retributivists offer deontological justifications for what they perceive as a necessary
conceptual link between justifiable punishment and moral desert . Justice requires that individuals be
rewarded and punished on the basis of what they deserve. It is "right" to give people what they deserve, and
the "good" of this practice is that justice is being done regardless of whether blaming the deserving wrongdoer
generates desirable social consequences.
Some retributivists derive this principle of distributive justice from Kant's categorical imperative that moral
agents be treated as "ends" in themselves before they can be treated as a "means" of promoting others' objectives. Blaming a
deserving wrongdoer treats him as an end because we are respecting and responding appropriately to his
autonomous choice to do wrong.
Deontological retributivists tend to view the criminal law as a system of authoritative norms that binds
together a community of rational moral agents who must be treated with dignity and respect . Criminal
liability requires a demonstration of the actor's moral desert because the purpose of criminal punishment is
to give criminals their "just deserts." Determining what they deserve requires a backward-looking
assessment of what they did and the degree of culpability, if any, that can be fairly attributed to them for
committing the criminal act.
Since attributions of moral blame are only appropriate when the actor "deserves" moral censure for
breaching some community norm, criminal culpability doctrines must embody the criteria used to make
deserved attribution of moral blame. Thus, if moral blame presupposes that the actor is a moral agent who
has made a rational and voluntary choice to violate a community norm, the criminal should merit blame
only when the law demonstrates that he is such an agent and has made such a culpable choice.
Imposing criminal liability on an individual who does not qualify as a moral agent violates this principle. Accordingly, retributivists,
unlike utilitarians, must do more than offer an account of when individuals appear to be at fault for engaging in conduct that they
could have avoided. Retributivists must explain why offenders have the capacity to make the right moral choice
and thus "deserve" moral blame when they make the wrong one.
Planet Debate
40
Retributive Theory of Justice: Moral Punishment

Requires Focus on Desert
DESERT IS THE CONCEPT THAT MAKES PUNISHMENT MORAL AND JUST
Leigh Goodmark, Assistant Professor, University of Baltimore School of Law, 2007, The Punishment
of Dixie Shanahan: Is There Justice for Battered Women Who Kill?, The University of Kansas Law
Review, 55 Kan. L. Rev. 269, p. 290-1
The idea of desert is central to retributive theory. As C.S. Lewis explained, "The concept of Desert is the only
connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be
just or unjust." Desert is a moral concept, not a legal one. "[A] legal code cannot suffice to determine what a criminal
deserves to suffer as a penalty. The misery he deserves depends on the moral wrong he has committed." John Rawls concurs: "That a
criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of the
act." Desert should also be individualized; as no two crimes are the same, no two punishments should be .
Why is retribution preferable to other theories of punishment? Retributivists argue that retribution "promises the certainty which
utilitarianism cannot. The punisher can be sure that whatever else he may or may not be achieving he is at least
inflicting more or less what the offender deserves." Punishment in and of itself is the end of retributivists;
punishment need have no other benefit, either to the individual being punished or to society. As Herbert Packer
explains, "Man is a responsible moral agent to whom rewards are due when he makes right moral choices and to whom punishment is
due when he makes wrong ones. ... These imperatives flow from the nature of man and do not require - indeed do not permit - any
pragmatic justification." Others argue, however, that retributive theory debases individuals to serve a theory.
The retributive view of punishment justifies the infliction of evil upon a living soul, even though it will do neither him nor any one
else any good whatever. ... It is the retributive theory which shows a disrespect for human personality by proposing to sacrifice human
life and human Well-being to a lifeless fetish styled the Moral Law, which apparently, though unconscious, has a sense of dignity and
demands the immolation of victims to avenge its injured amour proper.
Planet Debate
41

That the Offender Acted with Knowledge and Free Will
HOLDING SOMEONE MORALLY RESPONSIBLE FOR A WRONG REQUIRES THAT THE
ACTOR MADE A KNOWING, RATIONAL AND VOLUNTARY CHOICE TO ACT
Peter Arenella, Professor of Law, UCLA Law School, 1992, Convicting the Morally Blameless:
Reassessing the Relationship Between Legal and Moral Accountability, UCLA Law Review, 39 UCLA L.
Rev. 1511, p. 1516-8
Our inquiry must begin by examining the meaning of our moral culpability judgments . An individual is not
considered morally culpable for his behavior unless he deserves moral blame for what he has done . Thus, an
account of moral culpability must identify the circumstances under which an individual (including criminal
defendants charged with mala in se crimes) deserves moral blame for engaging in conduct that breaches community
moral norms.
There are many different accounts of when individuals deserve moral blame for causing some undesirable state of affairs. Some
view moral blame as deserved even when the actor's breach of morality can be attributed to factors beyond
his meaningful control. In contrast to such visions, the liberal paradigm requires actors to have some form of
knowledge, reason, and control of their actions before they can be fairly blamed for what they have done .
Criminal law theory and doctrine has, for the most part, embraced this liberal paradigm for moral
responsibility and articulated a conduct-attribution version of it. According to this account, individuals deserve
moral blame for conduct that breaches community norms when that conduct can be fairly attributed to
them. The law's conduct-attribution model of moral responsibility generally requires a demonstration that
the actor made a knowing, rational, and voluntary choice to act in a manner that breached community
norms.
JUST PUNISHMENT MUST EVALUATE THE QUESTION OF DESERT AND WHETHER THE
OFFENSE WAS A PRODUCT OF FREE WILL
Traditional legal scholars and conservative courts oppose defendants' efforts to broaden and individualize their narratives
because they fear the potential impact of such considerations on our ability to treat the defendant's "choice" to violate the law as truly
"free." For traditional scholars must posit "free choice" to get their justifications of criminal punishment off the
ground. To punish a person, according to these theorists, we must first determine that he or she is blameworthy. In
the words of Professor George Fletcher, a leading traditional scholar: "(1) punishing wrongful conduct is just only if
punishment is measured by the desert of the offender, (2) the desert of an offender is gauged by his
character-i.e., the kind of person he is, (3) and therefore, a judgment about character is essential to the just
distribution of punishment." Normally, we can infer a blameworthy character from a decision by the actor to break the law. But
the inference from bad act to bad character only holds if the defendant's decision or choice to break the law was free. If the defendant's
choice was determined by external forces, that choice does not tell us what kind of person he or she is. Thus, " if a bank teller
opens a safe and turns money over to a stranger, we can normally infer that he is dishonest. But if he does
all this at gunpoint, we cannot infer anything one way or the other about his honesty." And if we do not know
what kind of person he is, we cannot blame him. Before we can condemn, therefore, we must conclude that the
defendant's choices were free.
Planet Debate
42

Proportionality
MORALITY OF CRIMINAL PUNISHMENT GROUNDED IN RETRIBUTION PUNISHMENT
MUST BE PROPORTIONATE TO THE CRIME
Review, 55 Kan. L. Rev. 269, p. 288-9
Retribution is the oldest moral underpinning for criminal punishment, dating back to the Code of Hammurabi,
developed by the Babylonians around the eighteenth century B.C. The lex talionis, or law of retaliation, limited all sentences to
punishment proportionate to the crime - an eye for an eye, a life for a life. Retributive theory has since evolved to include
a
number of different moral justifications for criminal punishment, all resting on the notion that punishment
is necessary to give the criminal what she deserves as a result of her wrongdoing. The notions of criminals paying
for their crimes, paying their debts to society, or getting what is coming to them all grow out of retributive theory. While modern
retributive theory no longer requires "eye for an eye" punishment, it continues to maintain that punishment should
be
proportionate to the crime committed.
"Retributive conceptions of criminal punishment rest essentially on the inherent propriety of punishment as
a consequence of wrongdoing, that is, it amounts to an obligation to be settled in an accounting among the
offender, the victim, and society." While that obligation is at the core of retributivist theory, theorists have posited a number of
different explanations for why that obligation exists. According to Emmanuel Kant, for example, punishment was a
categorical imperative; the imposition of punishment was not just permissible, but morally required simply
because wrongdoing had occurred. Punishment restores the moral balance that is upset when a crime
occurs. John Rawls states, "Punishment is justified on the grounds that wrongdoing merits punishment ."
Others have similarly argued that the punishment negates the wrongdoing, creating the sense that the wrongful act never happened.
Building on this theory, "punishment annuls crime in the sense that it establishes that the victim has ... rights, and hence the criminal's
denial of them is a mistake." Punishment, then, restores the rights intruded upon by the criminal to the extent that
the punishment is commensurate to the amount of intrusion created by the crime.
JUST SOCIETY CAN ONLY IMPOSE JUST PUNISHMENTS REQUIRES DESERT AND
PROPORTIONALITY
307-8
A just government rests on the consent of the governed . Thanks to a useful fiction, each person is assumed to
assent to be governed by the laws of his society with the expectation that others will abide by the same laws
and that those who do not will be punished. A further legitimizing feature of just government is that only
those who are deserving of punishment will be punished. Punishment is imposed upon only those who are
culpable for their acts, and that punishment is imposed to a degree commensurate with that culpability.
Planet Debate
43
Retributive Theory of Justice: Context of Long-Term Abuse

can Morally Justify Individual Retribution
THE CONTEXT OF LONG-TERM ABUSE MORALLY RELEVANT IN DETERMINING WHAT
CONSTITUTES JUST DESERT MORALLY JUST FOR THE VICTIM TO EXACT HER OWN
RETRIBUTION
Review, 55 Kan. L. Rev. 269, p. 297-9
The retributivist argument for punishing Dixie Shanahan might take the following forms: (1) criminal punishment is Dixie Shanahan's
just desert for killing her husband; (2) punishing Dixie Shanahan equalizes the moral balance upset by her actions; (3) punishing Dixie
Shanahan removes the unfair advantage she obtained by killing her husband.
First, consider the notion of just deserts in the context of this case. Historically, the idea of just desert was tied to the belief that the
punishment should in some sense be proportionate to the crime; the lex talionis measure of an eye for an eye. Jeffrie G. Murphy asks,
"What does it mean to say that a person deserves a certain level of suffering as punishment?" For battered women who kill, what does
it mean to deserve punishment when the victim of the ultimate crime has inflicted immeasurable damage on the person who finally
kills him? Although Scott Shanahan never quite managed to kill Dixie, he certainly inflicted a great deal of injury, pain, anguish, and
humiliation on her until just before the moment he died. Is it not fair to factor the suffering that Dixie Shanahan endured for nineteen
years into the calculus of just deserts? Imagine a ledger in which Scott Shanahan's many crimes against his wife were tallied. Looking
at all of the offenses for which Scott Shanahan was never punished (outside of six days in jail, which only led him to redouble his
attacks on his wife), Dixie Shanahan's actions may have simply brought them to even on that balance sheet. For Dixie Shanahan's
deserts to be just, her punishment should have been proportionate to her crime - the murder of an extremely abusive husband after a
horrific episode of battering - not to the generic crime of second-degree murder. A just punishment would have taken into account the
years of abuse she endured, the abuse she faced over those two days in August, the danger posed to her and her unborn child, and her
subjective belief that she would be killed before the end of that day. Because her punishment was divorced from the context in which
her actions took place, she did not receive her just deserts.
Linked to the idea of just deserts is the belief that punishment equalizes the moral balance disturbed by the commission of a crime.
Should an action still be punishable, though, when that action in some way restores the moral balance between the parties? Scott
Shanahan's continual abuse of his wife surely placed him in moral debt to her. Scott Shanahan never repaid that moral debt; the six
days that he spent in jail over a nineteen-year reign of terror hardly equalized the moral balance. Rather than upsetting the moral
balance, Dixie Shanahan's act arguably restored some of the dignity and agency stolen from her as a result of years of abuse by her
husband, and allowed her to escape from what promised to be many more years of abuse, had he not killed her sooner.
Moralistic retributivists believe that people deserve punishment when, by their crimes, they show themselves to be morally
reprehensible; simply put, "it is good when bad things happen to bad people." Even accepting the prosecution's version of events, in
which Dixie Shanahan shot her husband while he lay in bed during a lull in two days of abusing her, it is difficult to see how her crime
renders her morally reprehensible. By all accounts, Dixie Shanahan was not a bad person, a morally reprehensible person. Witness
after witness for both the prosecution and defense described her as a good mother, a person who cared for others both professionally
and personally, and who endured year after year of horrific abuse in part because of her love for the mother of her abuser and in part
because she continued to hope that Scott Shanahan could be a good husband and father. She had never been in trouble previously. She
finally acted to save her own life and that of her unborn child. When a person is not wicked - for example, acting under duress - that
person is not deserving of punishment. Dixie Shanahan's actions were unlawful, but she acted out of desperation, not wickedness.
From a moralistic retributivist perspective, Dixie Shanahan did not deserve to be punished.
Did Dixie Shanahan derive some unfair advantage from her crime? Was she able to enjoy some greater liberty than others as a result
of killing her husband? If so, legalistic retributivists would argue, punishing her is just. So what did Dixie Shanahan actually get as a
result of her crime? Freedom from abuse. The ability to carry her unborn child to term. Safety for herself and her children. All of the
benefits that Dixie Shanahan derived from her crime are taken for granted by most individuals in a free society. Legalistic
retributivists believe that if a crime allows the actor to enjoy a wider liberty than others, punishment is justified to rectify that
unearned advantage. But what if the crime simply restores the actor to the same state of liberty that others in the community enjoy?
Scott Shanahan had deprived his wife of rights that most people probably never consciously consider - the right to dignity, the right to
bodily integrity, the right to be free from violence. Killing him gave her no benefit not enjoyed by her neighbors. Dixie Shanahan
killed to restore herself to the state in which members of her community routinely lived, free from fear and abuse. Achieving such
parity can hardly be called an unfair advantage.
Planet Debate
44
Context of Abuse Critical to Determination of Desert and Just

Punishment
EXAMINING THE CONTEXT OF ABUSE CRITICAL TO DETERMINATION OF JUST
PUNISHMENT
Review, 55 Kan. L. Rev. 269, p. 317
Battered women who kill "emphasize the circumstances of their actions, urging the criminal justice system
to look at the violence they endured, at their inability to separate from their batterers, and at the lack of
resources or solutions offered to them" - the context in which their crimes take place. Justice requires not
only that judges hear evidence about this violence when sentencing battered women who kill, but that they also use that
evidence to determine what a just desert would be. Like Dixie Shanahan, these women did not receive their just
deserts - not because of judges whose discretion was fettered, but because of judges whose discretion went
unused.
TAKING CONTEXT INTO ACCOUNT CRITICAL TO MAKE ASSESSMENT OF DESERT
Choice and Blame, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 525, p. 530
Once we see how the dominant theory of blame and punishment hinges on free choice, we also see why context and perspective are so
hotly contested in criminal trials. The more we ignore the events leading up to a choice, the more we disregard the
social realities surrounding the choice, and the more we refuse to take account of particular attributes of the
person making the choice, the more likely we are to judge the actor's choice free -and vice versa. An
extraordinarily telling illustration of the relation between our evaluation of a person's choice or consent and the amount of information
we have about the context of that "choice" comes from O'Brien v. Cunard S.S. Co., a century-old decision that appears in several torts
casebooks in the chapter on the defense of consent to a claim for battery.
JUST PUNISHMENT REQUIRES ASSESSMENT OF DEFENDANTS TRUE CHARACTER

What drives these and other determinist doctrines is the insight that in certain cases decision makers cannot
make the usual inference that a person is blameworthy from the fact that he chose to break the law . These
excuses turn on the recognition that the defendant's extraordinary circumstances drove a wedge between his
contingent self-the self that came forward under the unjust pressures of the situation in which he found
himself-and some underlying "true" self that could have manifested itself but for those unjust pressures . As
Martin Wasik puts it, in cases of duress, "the accused claims that there was no act by him." By this logic, it is unfair
unconditionally to condemn someone for the behavior of his contingent self, for the responses of this
unduly influenced self do not tell us anything about the defendant's "true" character . And we must ascertain
an individual's true character before we can hold him fully responsible for criminal acts.
Planet Debate
45
Context of Abuse Critical to Determination of Desert and

Just Punishment
IGNORING CONTEXT IN DETERMINING BLAMEWORTHINESS IS UNJUST
Judge David Bazelon proposed just such a defense, first in a separate court opinion in 1972 and then in a law review article
in 1976. Judge Bazelon's proposal grew out of his assessment that a number of defendants suffered the same kinds of cognitive and
volitional defects that constitute excuses in cases where mental illness is found, but that they could not meet some of the technical
requirements of the definition of legal insanity. Upon further reflection, Judge Bazelon realized that the mental impairments
afflicting these defendants were the product of social, economic, and cultural deprivations or of racial discrimination, rather than of a
clinically defined mental illness. Accordingly, he proposed a jury instruction that would permit acquittal where the
crime was caused by the defendant's disadvantaged background . Specifically, he would instruct the jury to
acquit if it found that, at the time of the offense, the defendant's "mental or emotional processes or behavior
controls were impaired to such an extent that he cannot justly be held responsible for his act." Although Judge
Bazelon did not expect that his new instruction would generate a flood of new acquittals, he hoped the instruction would force jurors
to confront the causes of criminal behavior and thus compel the community to own up to its responsibility for the crime and for the
plight of the accused. In Judge Bazelon's words, "It is simply unjust to place people in dehumanizing social
conditions, to do nothing about those conditions, and then to command those who suffer, "Behave-or else!' "
CONTEXT IMPORTANT TO DETERMINING ONES TRUE CHARACTER KEY TO JUST
ASSESSMENT OF BLAMEWORTHINESS
Professor George Fletcher, a leading exponent of the just deserts school of criminal punishment, offers as sophisticated an
account as can be found of why the law should not recognize a disadvantaged social background excuse. He makes several different
arguments against a social deprivation excuse. He begins his first argument with the now familiar point that legitimate excuses arise
from atypical circumstances that make it impossible for us to infer anything about the defendant's "true character" from his wrongful
act. Then he says that "whether a particular wrongful act is attributable either to the actor's character or to the circumstances that
overwhelmed his capacity for choice" is a question that can be answered in an either/or way. He contends that the problem
with excuses based on social deprivation is that these excuses "interweave" these two distinct ways of
accounting for wrongful behavior.

Merely asserting that wrongful acts can always be attributed either to a person's "true character" or to his
circumstances (that is, to his "contingent character") does nothing to advance Fletcher's claim that we
should ignore background conditions of deprivation in determining whether a wrongful act reveals
someone's "true character." Could any of us presume to know the "true character" of a child who suffers
unremitting rape or torture throughout his childhood? Then how can any of us presume to know that the wrongful acts of
a former battered child reveals his "true character"?
And it is no answer to say that because not every former battered child commits similar wrongful acts, the wrongful
acts of this particular battered child reveal his truly blameworthy character. For not every spouse who discovers adultery in
progress kills the adulterous mate. (In fact, the law presumes that the ordinary person would never be provoked to take
another life under any circumstances, which is why provocation is not a complete defense.) Nevertheless, we view the
decision to kill under such circumstances as significantly determined and thus partially excused because we
think such circumstances make the ordinary person more likely to kill. Hence, a defendant who appeals to
excusing conditions in his defense does not have to prove that most people who were exposed to those
same conditions would have committed a similar act. All the defendant has to show is that because of those
excusing conditions, the wrongful act does not reveal his "true character."
Planet Debate
46
Context of Abuse Critical to Determination of Desert and

Just Punishment
SHOULD EXAMINE THE ENTIRE CONTEXT OF THE BATTERING RELATIONSHIP TO
JUDGE A HOMICIDAL ACT
Omaha, 2002, Self-Defense and Battered Women Who Kill: A New Framework, p. 69
When a battering relationship results in a homicide, attention is naturally focused on the final murderous
encounter, but that final act is the last, not the only, homicidal encounter in a battering relationship. This chapter is
designed to explain a new social interaction perspective for understanding the battering relationship as a long-term ongoing homicidal
process that is very likely to end in the death of one of the parties.
We propose that to understand the battering relationship and its escalation to homicide, we must examine the
entire history and context of the relationship. Focusing only on a final homicidal encounter disadvantages
the victim because it ignores the batterers initiation of the acute violence and his escalation of the violence
in order to maintain complete control of both the relationship and the victim. Thus, it unfairly portrays the context
of the battering victims survival efforts. To more fairly and completely explore that context, we seek to understand the
cultural, social, structural, and situational forces, as well as the interaction process, that assist the batterer in maintaining the battering
relationship and result in the escalation to homicide.
MUST EVALUATE A SELF-DEFENSE CLAIM IN A BATTERER HOMICIDE BY LOOKING AT

THE CONTEXT OF THE BATTERING RELATIONSHIP
If battered woman homicide cases are to be decided fairly, in consideration of the circumstances facing the
defendant at the time she decided to use lethal force, those circumstances will have to be presented in
context. It will be necessary to understand the history of the relationship, especially the history of the battering
relationship; it will be critical to understand the events of the fatal day in the context of that battering
relationship because reasonableness and imminence and the perceived necessity for lethal force can only be
understood in the context in which the defendant acted. So, the question now becomes: How do we come to understand
the context of the battering relationship that preceded the homicide? Stated differently and in the language so critical to traditional
and modified notions of self-defense: How do we come to understand the facts of the homicide in context, so that we will be able to
judge the reasonableness of the defendants perception of impending harm (or, in its modified version, the perceived necessity for
force) and the imminence of the threat? The rules of evidence allow this kind of contextual evidence to come from expert testimony
as well as from lay testimony.
Planet Debate
47
Resort to Deadly Force Justified on Equality Grounds

EXTENDING SELF DEFENSE TO COVER ABUSE VICTIMS RESORT TO DEADLY FORCE
JUSTIFIED ON EQUALITY GROUNDS
Arthur Ripstein, Philosophy Professor and Law University of Toronto, 1996, Self-Defense and
Relations of Domination: Moral and Legal Perspectives on Women Who Kill: Self Defense as a Rational
Excuse, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 685, p. 686
This article looks at recent developments in the law of self-defense as an example of how the law can
provide equal protection in the context of underlying inequalities . In part II, I explore the rationale of the law of
self-defense. I argue that it is best understood in terms of the criminal law's aim of treating people as equals by
protecting them equally from each other. In part III, I look at cases in which women in battering relationships
have killed their abusers. I argue that these cases are best understood in terms of the same factors that make
sense of more traditional cases of self-defense. Rather than moderating the law's demands, the outcomes in these
cases are best seen as required by a consistent application of the law of self-defense in the context of
inequalities of power. In order to apply the law equally in such a context, the constraints imposed by those inequalities must be
taken into account. In part IV, I look at other cases in which women who have been abused have reacted violently to people other than
their long-term abusers. In those cases, the requirements of self-defense are not met. Nonetheless, punishment may sometimes be
inappropriate because the law's failure to treat a woman as an equal by protecting her from past abusers is
implicated in her reaction to her situation. I make no claim that all battered women who kill should escape punishment. I
claim only that pervasive inequalities cannot be ignored if the law is to claim that it is fair .
RECOGNIZING THE UNIQUE CONTEXT OF BATTERED WOMEN AND TAILORING THE
LAW TO IT JUSTIFIED ON EQUALITY GROUNDS
While there is no unanimous agreement that battered women who kill are, or should be, legally justified in
their actions, one must admit that such women are in a different position with relation to justice than are
other classes of homicide defendants. The fact that a woman was battered, and the extent and duration of
such abuse, is so relevant that it demands that such a woman receive some sort of specially tailored
treatment from the criminal justice system . The admission of battered woman testimony itself is one such specifically
tailored treatment that demonstrates "an underlying discomfort with not treating battered women who kill in a manner different from
other homicide defendants."
The justifications for tailored treatment of battered women who kill include the fault of society itself in the
creation of the problem of battered women and the historic discrimination against women claiming selfdefense in the criminal justice system. Of course, while not all battered women act in self-defense when they kill their
abusers, a substantially higher reversal rate on appeal is an additional indicator that they are often deprived of a fair trial. Advocates
for battered women are not asking for leniency or a lowered standard, but rather for equal treatment under
the law, which can only be achieved through specialized treatment. While substantive law methods attempt to address
this need for a specialized, tailored treatment, there are many flaws with current methods that can actually work against the women
they purport to help or exclude various classes of women from just treatment.
Planet Debate
48

GENDER BIAS IN ENFORCING LAWS AGAINST VIOLENT ASSAULT IS A CORE VIOLATION
OF THE EQUAL PROTECTION CLAUSE
Law Professors, Amici Curiae Brief, US v Morrison, 1999, 1999 U.S. Briefs 5; 1999 U.S. S. Ct. Briefs
LEXIS 217
After years of hearings, Congress concluded that "bias and discrimination in the [state] criminal justice system
often deprive[] victims of crimes of violence motivated by gender of equal protection of the laws and the
redress to which they are entitled." H. R. Conf. Rep. No. 103-711, at 385 (1994). The detailed testimony gathered, as well as
the numerous state task force reports examined in the legislative process, did not simply uncover a long history of
explicitly sex-based regulation. It established that, even today, state actors responsible for protecting citizens
against assault repeatedly engage in decision-making riddled with invidious stereotypical judgments about
women.
These congressional hearings established an ongoing, pervasive, and deeply entrenched pattern of official
state action that violated the core guarantee of the Fourteenth Amendment: that state governments afford
equal protection of the laws to all persons, regardless of their race or gender. Blacks as well as whites, women as
well as men, are entitled to protection by police, prosecutors, [**40] and the criminal justice system. Failure to provide such protection
on equal terms is [*24] a denial of equal protection of the laws in its most basic sense. This concern clearly motivated the framers of
the Fourteenth Amendment, who feared that state governments would fail to protect freed slaves from crimes of violence perpetrated
by private actors. n29
Affording women equal protection of the laws means treating crimes of violence perpetrated against women as seriously as crimes
against men. n30 Where state officials fail to do so because of archaic stereotypes about women's proper role in society, they violate
the clearest command of the Equal Protection Clause. n31 As this Court has often recognized, official discrimination against
women may take the form, not of overt hatred, but of outmoded and archaic views about women's roles and
their relationships to men. See, e.g., United States v. Virginia, 518 U.S. 515, 532-34 (1996); J.E.B. v. Alabama ex rel. T.B., 511
U.S. 127, 135-42 (1994); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982); Frontiero v. Richardson, 411 U.S. 677,
684 (1973)[**41] (referring to Nation's "long and unfortunate history of sex discrimination. Traditionally, such [*25] discrimination
was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage."); see
also Planned Parenthood v. Casey, 505 U.S. 833, 893, 898 (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.) (striking down
spousal notice requirement because it could provoke domestic violence, and perpetuate constitutionally offensive common-law
assumptions about a husband's dominion over his wife).
DOMESTIC VIOLENCE IS A MEANS OF ENFORCING MALE DOMINANCE OVER WOMEN

Sally F. Goldfarb, Associate Professor Rutgers School of Law, 2003, American University Journal of
Gender, Social Policy & the Law, 11 Am. U.J. Gender Soc. Pol'y & L. 251, p. 267-8
In reality, domestic violence by men against women typically operates at least in part as an expression of an
ideology of male supremacy and a means of enforcing male dominance over women. The presence of
additional motivations, including circumstances arising from the couple's relationship, does not negate this
fact. Violent crimes motivated by the victim's gender, including those that occur within ongoing
relationships, impose the same kinds of harm that have been recognized as justifying special legal penalties
for violence motivated by the victim's race, ethnicity, or religion. First, victims of discriminatory violence
suffer not only the physical and emotional injury of the crime itself but also the added psychological burden of
knowing that they were victimized because of their group membership. Second, group-based violence whether based on gender or on other types of discrimination - terrorizes not only the individual who has been attacked
but also other members of the same group who fear that they could be next. Finally, group-based violence
proclaims and reinforces the subordination of the targeted group. Thus, discriminatory violence - including
discriminatory violence against women - is an instrument of social control. Although gender-motivated violence
differs from other bias crimes because it takes place predominantly within intimate relationships, this
makes the effects of such violence more, rather than less, damaging.
Planet Debate
49

MUST CHALLENGE CONSTRUCTIONS OF MASCULINITY THAT EXCUSE SEXUAL
VIOLENCE FOR THE LAW TO EFFECTIVELY ADDRESS IT
Katharine K. Baker, Professor Brooklyn Law School, 2001, Yale Law Journal, June, 110 Yale L.J. 1459,
p. 1488-9
There are, again, important parallels to rape here. The most comprehensive study of general attitudes toward rape found that sixtysix percent of one sample group believed that women's behavior and appearance provoke rape. Another study found that "most
respondents, including victims, saw women's behavior and/or appearance as the second most frequent cause of rape." Published
reactions to various kinds of rape suggest that people are often reluctant to blame men who rape. Jurors and bystanders excuse men,
claiming that they "didn't want to ruin these boys' lives," that "the guys are human," and that what the men did was not really rape.
Because "boys will be boys," their behavior is accepted. As is the case with domestic violence, so in the case of rape; women who
transgress certain social gender roles deserve what they get, and the men who give it to them deserve to be excused.
Focusing on gender as an excuse for the conduct, rather than gender as the cause of the conduct, helps
avoid the debate about who beats whom more and why. It also suggests that the intractability of domestic
violence as a problem may have as much to do with gender norms as with notions of privacy. Whatever
norm or law tells men that battery is wrong is counteracted by gender norms that reaffirm their right to
control and their partners' duty to obey, just as whatever norm or law tells men that rape is wrong is
counteracted by gender norms that encourage male sexual aggression and limit the range of permissible
female behavior. In order to attack the problem, therefore, the law needs to do more than just label domestic
battery and rape wrong: It has to challenge the constructions of masculinity that excuse them.
Planet Debate
50

FRAMING BATTERED WOMEN ADVOCACY IN TERMS OF CIVIL RIGHTS FORCES
EXPLORATION OF THE POWER DYNAMICS THAT PRODUCE VIOLENCE AND
CHALLENGES VICTIMIZATION
Brenneke, civil rights attorney, 1992 (Andrea Brenneke, Civil Rights for Battered Women: Axiomatic &
Ignored, 11 Law & Inequality 1, p. 14-16
Civil rights legal advocacy for battered women provides a single forum to address directly the social and historical context of
gendered power relations as implicated in wife abuse and to hold individual abusers accountable for their actions. Civil rights
advocates can move beyond the "victim" characterization of battered women to stress the great survival
techniques and efforts such women use to overcome violent relationships. This "survivor perspective"
stresses the agency of battered wives and the complicity of the broader social forces that render their helpseeking efforts ineffective. It is important to link the single abused wife with the broader social context of male dominance to
establish a civil rights violation.
Plaintiffs' lawyers need not revert to the "victim" characterization theories of learned helplessness implicit in efforts to establish
damages in wife abuse civil rights cases. The "survivor" theory provides an alternative damages theory. The
psychological symptoms women experience in the abusive relationship often are temporary manifestations of traumatic shock,
experiences of failure in the "traditional female role of nurturing and domesticity" and an expression of separation anxiety and
reasonable fear of reprisal for leaving. There is a practical legal risk that characterizing battered women plaintiffs as "survivors" of a
system of male domination and wife abuse will not invoke the same sympathy of jurors that the victim characterization promises.
However, exposure of the context of abuse and the struggle to survive may provide greater damage awards because the
characterization is realistic and the effects of the husband's abuse are demonstrably more overwhelming than if the abuse were viewed
in terms of the relationship alone.
To demonstrate the existence of a civil rights violation, as opposed to random violence between two
people, advocates should explore the theory of gendered power relations, the role of wife abuse in
promoting subordination and the way in which violence is used to stifle battered women's assertions of
their rights. It is critical that plaintiffs are not portrayed as submissive victims. "Wife-beating arose not just from subordination
but also from contesting it. Had women consistently accepted their subordinate status, and had men never felt their superior status
challenged, there might have been less marital violence." Civil rights advocates must address the dynamic of power and control in
relationships to explain the empirical evidence that battered women face increased danger with their assertion of rights and
independence from their male partners. When battered women seek a divorce, obtain a restraining order or leave the abusive partner,
they face increased danger because batterers use violence when their dominance is challenged. The term "separation violence" has
been used to mark the abuser's desperate, post-separation assertion of power over the domestic partner who has sought freedom. As
such, separation assault is prime evidence of wife abuse as a civil rights violation.
Of all the civil legal remedies, civil rights concepts are best able to capture and marshall the survivor
theory and the concept of "separation assault" for the benefit of battered women. In the heterosexual context,
domestic violence qua control can be seen as part of the enforcement of gender dominance at home, just as rape serves that function
on the streets and sexual harassment serves it in the workplace.
Planet Debate
51
Laws Governing Kidnap Victims Provide Moral Basis for

Deadly Force Against Abusers
DEADLY FORCE IS JUSTIFIED AGAINST ONES KIDNAPPER
Colum. L. Rev. 729, p. 745-7
Why do most jurisdictions allow lethal self-defense to prevent or escape an attempted kidnapping? Kadish and
Schulhofer pose the question of why kidnapping is included in Model Penal Code section3.04(2)(b), but neither they nor the Code's
own comments answer it. It is clearly not because kidnapping necessarily entails serious bodily harm itself: A kidnapping may turn out
to be ephemeral, its victim emerging from it physically unscathed. As noted in Section II.D below, there is a stark lack of discussion in
case law about why kidnapping justifies lethal self-defense independently from serious bodily harm. Secondary sources provide little
better theoretical grounding for such a right, and its practical implications remain unclear.
In lieu of an explanation, LaFave and Scott categorize kidnapping with rape as among the "most extreme
intrusions on freedom of the person... even when the crime does not threaten death or serious bodily harm."
This can be interpreted in at least two ways. First, perhaps extreme intrusions on a person's bodily liberty warrant lethal
self-defense on their own accord due to the fundamental deprivation of self-determination . Another
interpretation is that kidnapping places one in a position of being unable to resist future imposition of serious
bodily harm at the kidnapper's will - even if he thus far neither threatens nor objectively intends to commit
serious bodily harm - and so one may freely exercise one's right to lethal self-defense while one can . This
latter interpretation is more consistent with the Model Penal Code's provision that "use of deadly force is not justifiable under this
Section unless the actor believes that such force is necessary to protect himself against" serious bodily injury, kidnapping, and the like.
The harm kidnapping poses can thus be construed as the imposition of ongoing vulnerability to serious
bodily harm whenever one's kidnapper wishes: It hangs a Sword of Damocles over the victim.
VICTIMS USE OF DEADLY FORCE AGAINST AN INCAPACITATED KIDNAPPER IS JUST
Colum. L. Rev. 729, p. 749-50
How does the imminence element apply to an ongoing kidnapping? Is the crime ongoing, like rape, or exhausted instantaneously at the
moment of asportation, like theft? If the harm a kidnap victim faces is continued vulnerability to serious bodily
harm at another's hands, that threat is always imminent, as the victim has no ability to prevent it. It extends
in time beyond the moment of abduction itself, continually renewing a state of terror and threat . In most
jurisdictions, given an honest and reasonable belief that one must kill one's kidnapper in order to effect
one's escape from the threat of serious bodily harm, one is legally justified in doing so.
No black letter law says that one can or cannot kill one's kidnapper while he is temporarily incapacitated,
but the following scenario suggests that one could: If a woman has been abducted by A and B, who she
honestly and reasonably believes intend to murder her, and A falls asleep while B is absent from the room,
presumably she may kill the sleeping A as part of a plan of escape if she fears that A may otherwise awaken and prevent her
from defending herself against the ambulatory B. This would be so even if A and B had not yet actually begun to
move toward committing the murder. The apparent standard would regard whether she had an honest and reasonable belief
that such force was necessary at that time for her security. If a sleeping A could be killed if doing so is truly necessary
to prevent him from waking and foiling an escape from B, one may fairly suspect that a sleeping, yet
powerfully threatening, A could be killed if doing so is truly necessary to prevent him from waking and
foiling her escape from A himself. No case law appears to address this question. As the next section will discuss, importing
kidnapping law into the debate over self-defense by battered women will solve the problem of justifying force against batterers.
Planet Debate
52
MORAL BASIS FOR DOMESTIC VIOLENCE VICTIMS KILLING THEIR ABUSER SAME AS
THAT FOR A KIDNAPPING VICTIM
Colum. L. Rev. 729, p. 756-7
Finally, David McCord and Sandra Lyons argue that the result of Norman was legally defensible but morally
unacceptable. Their analysis forms the foundation for the next Section. They identify ten factors which the Norman court
ignored, as have most other courts applying the traditional law of self-defense to battered women. These factors may be paraphrased
as follows:
(1) the husband's greater physical power,

(2) the wife's emotional upset at the husband's actions,
(3) the wife's mental state being affected by a cumulation of long term abuse,
(4) the husband's virtually constant access to the wife for the purposes of abuse due to their sharing a house,
(5) the husband's ability to attack his wife nonlethally at will with no police intervention,
(6) the wife's rational expectation that her husband will neither stop abusing her nor allow her to escape,
(7) the wife's inability to leave the vicinity for lack of job skills or a support network,
(8) the demonstrated ability of the husband to locate the wife if she remained in the vicinity,
(9) the failure of the police to protect her even when she contacts them,
(10) the husband's preventing her from further contacting the authorities for help.
These ten concerns describe a situation sounding very much like kidnapping itself. As McCord and Lyons make a
moral argument rather than a legal one, they never broach the possibility that Judy Norman had, in fact, been kidnapped, let
alone note that relevant preexisting law might thus have legally justified her actions. And yet, their list is a fair starting point for just
that argument. Points (1), (4), (5), and (6) support the presence of a continuing threat of serious bodily harm;
points (7), (8), (9), and (10) demonstrate a practical inability to flee or seek aid.
KIDNAPPING LAW APPLIES TO BATTERED WOMEN WHO KILL VICTIM HAS THE
RIGHT TO USE DEADLY FORCE TO ESCAPE
Colum. L. Rev. 729, p. 750-2
Still, some cases do exist, though most involve substantial factual disputes as to whether a kidnapping occurred at all. These are the
primary loci which indicate how courts interpret the rules of self-defense in kidnapping, even while generally deciding that those rules
do not exonerate the defendants. In Thomas v. State, the Court of Criminal Appeals of Texas upheld the murder
conviction of a woman who claimed to have been kidnapped and sexually assaulted by a group of four men
in a motel room. Prosecutors asserted that she was a prostitute who, after a failed attempt to coerce them to
pay for her services, ambushed and shot the men as she emerged from the bathroom, killing one. Thomas submitted a
jury instruction clearly eliminating the imminence requirement for a kidnap victim. The trial court adopted
the prosecution's less clear instruction. Thomas argued that "the court's charge was erroneous because it indicated that
appellant was justified in using deadly force only to prevent an imminent rape or kidnapping, but not in order to escape during or after
the commission of such a crime." Rejecting Thomas's argument that the latter instruction did not adequately reflect her theory, the
appellate court said the instruction clearly indicated that Thomas "had the right to defend herself if she were
the victim of such a crime or was about to become such a victim," and that it could not "reasonably be read
as allowing the use of force to escape before, but not after the crime." Thomas therefore lost not because the appeals
court applied an imminence requirement for kidnappings, but because it felt that the trial court had correctly stated that imminence of
serious bodily harm was not required.
The important implication of Thomas is that, notwithstanding the aforementioned debate over imminence
that has bedeviled discussion of battered women who kill, the general question of whether one must face
imminent serious bodily harm before engaging in self-defense has already been resolved. The victim of an
ongoing kidnapping may kill if it is necessary to extricate herself from the threat of harm. She still cannot kill
gratuitously; she must have had an honest and reasonable belief that she could only escape harm by killing. If she can flee in absolute
safety without killing, she must do so.
Planet Debate
53
BATTERED WOMEN SHOULD BE ELIGIBLE TO CLAIM THAT KILLING THEIR ABUSER IS
MORAL AND JUST UNDER THE LAWS COVERING KIDNAP VICTIMS
Colum. L. Rev. 729, p. 732
Norman has prompted substantial debate over this issue. This Note presents the novel theory that an existing self-defense
doctrine - governing how victims may react to a threatened or ongoing kidnapping - offers a fair basis for
determining what threshold level of exculpatory circumstances would justify homicides by battered
women. A few scholars have previously stated that some battered women resemble kidnap victims, or have
suggested without developing the proposition that kidnapping law should apply to battered women, or have presented moral
reasons as to why battered women who killed their incapacitated batterers might warrant acquittal , reasons
that in effect liken their status to kidnap victims. This Note fashions these disparate strands into a sustainable legal argument
that some battered women are entitled to kill their incapacitated batterers because by law they should
actually be considered kidnap victims, and offers rigorous criteria for determining whether such action is
justifiable in a given case.
KIDNAPPING ANALOGY PROVIDES BASIS FOR MORAL JUSTIFICATION EVEN IF IT
FAILS AS A LEGAL STRATEGY
Colum. L. Rev. 729, p. 761
Even if a court did not allow a defendant to argue that she was a literal victim of kidnapping, the above
analysis might bolster her moral claim to self-defense by use of that metaphor . This subsection evaluates when
women whose situations meet the elements of kidnapping might successfully claim that they had responded appropriately to literal
kidnapping. The motivational elements from the Model Penal Code are presumably met in most batterings. The "substantial period of
time" requirement is unlikely to disqualify self-defensive actions independently of the "confined in a place of isolation" requirement,
since the definition of the latter determines the extent of the former. The balance of this analysis, then, focuses on whether and when
one can cogently argue that a battered woman has in effect been confined to a place of isolation.
Planet Debate
54
Should View Victims of Long Term Domestic Violence as

Hostages
SOME COURTS HAVE DEFINED DOMESTIC VIOLENCE VICTIMS AS KIDNAP VICTIMS
Colum. L. Rev. 729, p. 753-4
1. Case Law. - Only one case, State v. Niemeyer, has addressed the issue of whether battered women confined at home by batterers
with whom they cohabit - rather than being abducted in public by husbands or boyfriends from whom they have separated or want to
separate - are kidnap victims. After a trial court convicted the defendant of kidnapping, an appellate court reversed the conviction.
Despite the fact that the battered woman had made no attempt to leave even during those moments when
her batterer was not in the room with her, the Connecticut Supreme Court reinstated the conviction. It found that
the combination of physical abuse and implicit threats to the victim if she left sufficed to constitute restraint
and abduction, and therefore kidnapping. This would seem, therefore, to justify lethal self-defense, at least
during the three hour course of the beatings.
REALITY OF MANY DOMESTIC VIOLENCE SITUATIONS IS THE SAME AS KIDNAPPING
Colum. L. Rev. 729, p. 760-1
The above elements address the characteristics surrounding restraint, but do not explain what restraint itself constitutes; that is
covered by the less straightforward phrase "confinement in a place of isolation." In essence, this conveys a person
being placed in a physical environment from which she can neither herself escape nor obtain help from
others to facilitate escape. Indeed, these seem like reasonable elements to include in a threshold level of
exculpatory circumstances that would justify lethal force by battered women against incapacitated batterers .
One foundation of this threshold level is that if a woman can escape safely without deadly force, she should. In
practice, this means removal of either the batterer or herself from the situation . But removal of the batterer,
possibly with the assistance of others such as the police, would not yield safety if the batterer would soon be
released and threaten her with serious bodily harm. Furthermore, the batterer may not allow her to remove
herself from the situation. Where a woman can follow neither course, the batterer has in effect confined her,
regardless of whether she is at liberty to travel around town to do chores, or even spend some "free" time as
she chooses. If the batterer always retains the power to bring her back to the situation where she faces
serious bodily harm, including the realistic prospects of rape or even murder, and if her reasonable and
honest belief is that this situation cannot be changed short of lethal force, then she has lost her freedom.
Intuitively, these will be the cases, like Judy Norman's, warranting greatest sympathy.
After all, the question that shapes the debate over battered women, especially
those who kill, is "why didn't

she leave?" If the answer is that she did not leave because doing so was either impossible at the outset, or
endangered others, or that it would not prevent her recapture and return to a (perhaps even more) perilous
situation, then that answer should suffice. She is a de facto victim of kidnapping, and thus has the right to
use lethal self-defense whenever it is available to her, imminence notwithstanding. It is likely that one important
difference between the lethal self-defense justification for battered women versus that for prototypical kidnap victims is that in
everyday life, if one is suddenly abducted, one may presume immediately that one is subject to the threat of serious bodily harm even
absent explicit threats, and may respond accordingly. It is hard to argue that confinement alone, in the absence of the threat of serious
bodily harm, would suffice for justifying homicides by battered women.
Planet Debate
55
Viewing Abuse Victims as Hostages Relaxes Imminence

Requirement
LAW JUSTIFYING KILLING ONES KIDNAPPER AS SELF-DEFENSE REQUIRES
DIFFERENT CONCEPTION OF IMMINENCE
Colum. L. Rev. 729, p. 748
The greatest complications regarding self-defense in response to kidnapping involve imminence . The
extended and indefinite time frame of a kidnapping raises the possibility that the kidnapper - as opposed to the person
actively attempting murder, mayhem, or rape - may for substantial periods of time during the criminal attack become
incapacitated (due, for example, to intoxication or sleep) at moments when the victim is not. Of the situations where a
victim knows that she is the target of a threat justifying lethal self-defense, kidnapping is thus the only one
where she may not always face imminent serious bodily harm. To the extent that a given instance of murder or rape
also raises this issue of imminence, it is by dint of the fact that it meets the criteria for kidnapping as well.
JUSTIFICATION TO KILL ONES KIDNAPPER LEGITIMIZES KILLING WITHOUT A

STRICT ADHERENCE TO THE IMMINENCE REQUIREMENT
Colum. L. Rev. 729, p. 754-6
Those commentators who have come closest to applying the model of kidnapping to the situation of battered women have deployed it
metaphorically, as a brief aside, or both. Battered women have been likened to hostages or kidnap victims, but largely
to explain the etiology of the symptoms typifying BWS. In discussing battered women who kill, Cynthia Lee cites Robinson's
hostage example to show why the imminence requirement should be relaxed , but does not apply the facts of that
example specifically to the situations of such women. In concluding a discussion of imminence in battering cases, Benjamin
Zipursky notes that kidnapping is the clearest form of the "nonimminence, no-access [to aid] cases" in
which the "assailant is intentionally trapping the attacked, and a fortiori believes that he is engaging in
conduct that would cause the defendant to believe herself to be trapped"; he adds that "kidnapping cases
often present the most tenable examples of the possibility of justifiable self-defense absent imminence."
Zipursky analyzes the idea only briefly, however, and he does not make the legal claim that, beyond being a useful metaphor, some
instances of battering may in fact fall within the ambit of kidnapping law.
Jane Maslow Cohen takes a stance somewhat akin to applying the model of kidnapping to battering by attempting to justify the killing
of batterers based on a philosophical justification rooted in the killing of tyrannical rulers. Cohen's justification of such
killings, which she bases on the unconscionable denial of freedom accompanying battering, could apply as
readily to a kidnap victim as to a slave or a victim of tyranny. Without engaging the merits of Cohen's proposal, it
seems more likely that judges, juries, and the public would accept a characterization of Judy Norman as the
de facto victim of kidnapping, with the self-defense rights attending such a status, than that they would
agree upon what constitutes private tyranny and label her a de facto slave. The former is more amenable to the
rigorous application of clear defining elements.
One work does anticipate the analysis presented in this Note, but only briefly and without the analytical structure necessary to support
the assertion that many battered women are de facto kidnap victims. Near the end of an excellent discussion of many of the matters
relating to the imminence requirement considered herein, Donald A. Downs and Evan Gerstmann state: "The law of
kidnapping [should] be applied to the domestic sphere. Where a person is being kept against her will by
force and threats, she should not lose her right to defend herself simply because the kidnapper is her spouse
or cohabitant." However, in making this assertion Downs and Gerstmann do not review case law on kidnapping. Nor do they
extensively examine the specific elements of kidnapping as they relate to battered women, factors that might either bolster or vitiate
such a legal defense.
Planet Debate
56
Reliance on Hostage/Kidnap Justification More Effective Legal

Strategy
ON-GOING NATURE OF KIDNAPPING AS A CRIME MAKES IT A MORE EFFECTIVE LEGAL
STRATEGY FOR BATTERED WOMEN TO USE
Colum. L. Rev. 729, p. 771
Judges often refuse to admit evidence regarding a battered woman's history of experiences with the batterer
she has killed. Many judges are unsympathetic to battered women who kill, and even more sympathetic judges may not believe
that such contextual evidence is relevant to a viable defense theory. In part, this may be due to their justified skepticism of defenses
based on BWS. Especially in nonconfrontation cases, however, judges may be unable to dismiss concerns related to the questions of
imminence and immediate necessity previously discussed. Because evidence of a prior history of battering is certainly
prejudicial towards the deceased - though perhaps not unfairly so, and perhaps not imputable to the state's
interest at a criminal trial - judges demand that it be sufficiently probative towards some viable theory of
self-defense before allowing it to be admitted. Failing to ground a theory in this way could in effect allow
the jury to consider a vigilantism defense stating that, even if no theory of self-defense is quite appropriate,
the killer should escape punishment because the victim deserved to be killed. Judges are loathe to admit
evidence on this basis, lest jurors become so inflamed as to see homicide as justified due to brutalities falling quite short of
serious bodily harm.
If judges are reluctant to admit evidence of prior assaults and batteries because they construe it as
impermissibly backwards-looking, this problem is eliminated under a theory of defense against kidnapping.
Kidnapping represents a continuing crime: A theory of self-defense grounded in it need not look back to
whether prior and completed assaults and batteries justified self-defense, but whether resistance to crime at
the moment of the killing did so. This is a much easier case to make.
Planet Debate
57
Should Revise Battering Syndrome as a Response to Coercive

Control
RECONCEPTUALIZING BATTERING SYNDROME AS A SURVIVAL RESPONSE TO
COERCIVE CONTROL BEST WAY TO JUSTIFY ACTIONS
70 S. Cal. L. Rev. 337, p. 374
A reconceptualization of battering syndrome evidence would change the image of battered women who kill
in self-defense from psychologically impaired people, who must be excused for their actions, to reasonable
people whose actions in the face of impending violence are justified. In short:
the coercive control model ... presents a survivor who is strategic, even aggressive, and asks the court to
imagine a pattern of harms sufficient to deprive her of liberty and autonomy ... The coercive control frame
opens a political space in which it is possible for women to command justice resources without being
psychologically disabled.
What should become more apparent is that abusive situations dictate the behaviors that reasonable people will adopt in order to
survive. A woman who adopts these behaviors does not do so because she is crazy, but because she is a
reasonable actor.
RECONCEPTUALIZED BATTERIING SYNDROME WILL LEAD TO MORE JUST OUTCOMES
70 S. Cal. L. Rev. 337, p. 374-5
The admission into court of gender- and age-neutral battering syndrome defenses should aid in this
reconceptualization. Gender-specific self-defense laws have encouraged the current characterization of BWS because society has
merely applied the traditional, negative stereotypes about women directly to the syndrome. By extending the battering
syndrome self-defense to men and children, it will be harder for society to associate the particular
stereotypes of women to the universal syndrome, for it will need to ask why battered women, men, and
children all respond in similar ways to their abusers.
In sum, traumatic bonding theory and Graham's Stockholm Syndrome are alternative models of domestic
violence that can assist society in reconceptualizing battering syndromes . The current model focuses almost
exclusively on the psychological traits of battered women, creating problems for those who use it and for
those who are excluded from using it because they do not fit the description. States should adopt a universal battering
syndrome, applicable to women, men and children, that highlights the situational behaviors, rather than the
inherent psychological traits, of abuse victims. Such a universal battering syndrome could portray battered
people who kill in self-defense as reasonable actors rather than mentally impaired victims.
Planet Debate
58
Killing Abusers as a Response to Coercive Control Morally

Justified
KILLING ABUSERS JUSTIFIED AS PART OF A LONG-TERM SURVIVAL PROCESS
Recently, battered women who have killed their abusers have begun to speak out, along with their advocates, about
the battering victims homicidal actions as part of a realistic and reasonable survival response rather than a
psychological problem. This position essentially asks us to think about battering homicides as part of a longterm survival process rather than a psychological aberration or a one-time overreaction based in spite or
revenge. Battering victims and their advocates believe that battered women who have killed their abusers do not need
a psychological excuse for their actions but rather are justified in proactively, lethally defending themselves
in a homicidal process. This position asks us to think about such behavior from a different perspective that takes into account
the complex context in which it occurs.
VIEWING BATTERING AS AN ON-GOING PROCESS MEANS THAT CONTEXT IS CRITICAL

IN ASSESSING SELF-DEFENSE CLAIM
Within this framework, the victim, in order to cope with the stress and danger, utilizes coping resources (i.e., personal
resources and social resources) to protect herself and end the violence . The batterer will perceive these actions as a loss
of control and will likely respond by increasing the frequency and intensity of the violence in order to make his
point and regain control. If resources accessed by the victim fail to protect the victim completely and end the
violence, then the batterers power has increased and the victims coping options have decreased such that
she might reasonably perceive herself as living in an ongoing lethal encounter. If battering is understood as
a homicidal process, battered women who kill should be able to present contextual evidence that explains
the entire confrontational interaction providing a firm foundation for self-defensive action.
Planet Debate
59
Coercive Control/Hostage Situation Framework More

Effective
VIEWING DOMESTIC VIOLENCE AS CRIMINAL COERCION RESULTS IN MORE
EFFECTIVE CRIMINAL JUSTICE SYSTEM RESOLUTION
Brooklyn Law Review, 1999, [Joan Erskine, JD Candidate], Winter, 65 Brooklyn L. Rev. 1207, p. 1220-3
The recharacterization of domestic violence as coercion gives prosecutors a powerful tool in their efforts
to make batterers accountable for their acts. The coercion statutes describe many of the behaviors that
constitute domestic violence. For example, instilling fear in a victim is an element of coercion in the first and
second degrees in New York. It is also an element of the class B misdemeanor crime of menacing in the third degree in New York, a
charge commonly used to encompass crimes of violence and the threat of future violence. To make out a case for a felony charge of
coercion, that is, to be able to bring a more serious charge, there need only be evidence that the victim complied with any perpetrator
demands as a result of her fear. By the same reasoning, a class A misdemeanor charge of menacing in the second degree, which
involves a more serious threat than that contemplated in the third degree level of the crime, could be upgraded to felony coercion.
There are, no doubt, cases where the defendant made no demand. However, given the coercive nature of domestic
violence, there must be numerous cases in which such a demand was made or understood from previous
interactions. Any evidence that the victim changed her behavior out of fear of future violence would be
relevant.
There are other situations where the charge of second degree coercion would apply and where there might otherwise be a lesser charge or no charge.
For example, the statute prohibits threatening to accuse another of a crime or cause criminal charges to be instituted against that person in order to compel
conduct. Under this provision, an abuser who prevents a victim from calling the police by threatening to have her arrested would be guilty of a class A
misdemeanor. Absent a charge of coercion, there might be no charge at all. The statute also prohibits threatening to "expose a secret or publicize an
asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule" as well as "performing any other act which would not
in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career,
the statute prohibits many of the control seeking behaviors

that batterers use to intimidate their partners. Many of these behaviors are not otherwise criminal or are
encompassed in statutes that assign them a lesser degree of criminality. Where there is a pattern of abusive
threats and control, but the violence has not yet escalated to such a degree that it warrants a high level
misdemeanor or felony charge, a charge of even second degree coercion might interrupt the cycle of abuse
before the violence becomes severe.
Where coercion has been charged, it has been useful in obtaining meaningful sentencing. Although the court's
financial condition, reputation or personal relationships." In short,
ruling in the intra-family coercion case discussed above indicates a lingering double standard in deciding coercion cases involving family members, the
court did not dismiss the case entirely. Upon retrial, the defendant still faced possible conviction of felony coercion or its class A misdemeanor
counterpart, coercion in the second degree. Under the facts presented, without a characterization of the conduct as coercion there would have been no
offense at all. Furthermore, in more recent cases, charges of coercion involving domestic violence have been brought and resulted in convictions.
Penelope D. Clute, District Attorney for Clinton County, New York, has successfully charged felony coercion in domestic violence cases. As a result, she
has won a felony conviction in a case where, without the charge of coercion, the defendant could be convicted of misdemeanor offenses only.
Specifically, in that case, where the defendant compelled his girlfriend to give him their infant son while threatening her with a gun, the defendant was
convicted of coercion in the first degree, for which he received a prison sentence of two to four years. No other felonies were charged. Thus, without the
coercion charge, the defendant could have been convicted of the lesser class A and B misdemeanor counts only. The misdemeanors carried maximum jail
sentences of one year and three months, respectively.
Planet Debate
60
Coercive Control/Hostage Situation Frameworks Avoids

Victimization Effects of Battered Woman Syndrome
BEST ANALOGY FOR JUSTIFYING KILLING OF ABUSERS IS THAT OF A HOSTAGE OR
KIDNAP VICTIM DOESNT REPRESENT THE ABUSE VICTIM AS MENTALLY IMPAIRED
70 S. Cal. L. Rev. 337, p. 354-6
The advantage of hostage survival strategy is that it recognizes that the behavior of the victim is an
adaptive way of surviving, not a mental impairment. In other words, hostage survival strategy describes what
the average, rational person would do in the same abusive situation. It better characterizes the way in which
many battered people behave than does Walker's theory.
Graham's Stockholm Syndrome theory is a variant of classic Stockholm Syndrome or hostage survival strategy that researchers have
applied to nontraditional "hostage" groups, such as battered women and abused children. Numerous studies have found
similar forms of psychological bonding in traditional and nontraditional hostages including: concentration
camp prisoners, cult members, civilians in a Chinese prison camp, pimp-procured prostitutes, incest
victims, physically and emotionally abused children, battered women, POWs, hostages, and prisoners .
Similar to traumatic bonding theory, Graham's theory is not unique to adult women, but rather cuts across gender and age groups. It is
an instinctive phenomenon that "plays a survival function for hostages who are victims of chronic interpersonal abuse."
As described above, Graham's Stockholm Syndrome theory uses a situation-centered, as opposed to a personcentered, approach to explain why people bond with their abusers and remain in violent relationships. In
other words, the psychological characteristics of the abused are a survival strategy or "result" of being in a
dangerous situation. They are not the "causes" of being in the relationship. Battered women, however, more than other groups, are
prone to having their behaviors considered personality traits. An observation about the 1978 hostage study mentioned above explains
this phenomenon:
McClure's message to potential hostages is strikingly similar to the messages young women receive on relating to young men. In a
sense, McClure is teaching femininity and avoidance of a concomitant problem, loss of sense of self. But in the case of battered
women, these behaviors are often described by mental health professionals and legal personnel as masochistically motivated and as
traits battered women possess apart from the context of their abuse. In contrast, the same behaviors engaged in
by hostages are seen as situation-typical rather than trait-typical.

In reality, the behavior of battered women does not differ from the behavior of men or children in life
threatening situations. For all the behaviors are those that any reasonable person would develop if placed in
the same situation.
Planet Debate
61
Should Revise Responsible Actor Model to Account for Those

who Kill Their Batterers
SHOULD RETHINK RESPONSIBILITY MODEL RATHER THAN CREATING EXCUSES TO
FIT BATTERED WOMEN INTO IT
In short, special excuses for women, in whatever form, reinforce incommensurable gender differences, in
which the qualities characterized as male inevitably are privileged over those characterized as female; such
excuses obscure feminist efforts to clarify our understanding of gender as a patriarchally constructed
hierarchy of social differences and behavioral expectations. By the same token, our practice of excusing women
reveals the inadequacy of the theory of responsibility presently endorsed by the criminal law. The theory is
inadequate precisely because it is not capable of accommodating women's experiences without judging
women to be deviant from and inferior to the model human actor the theory describes. Our practice of
excusing women reveals that the ostensibly human traits and psychological processes privileged by the
model of responsibility are those that culture construes as male. Therefore, the task we must undertake is to
reconceive and revise the model of responsibility so that it values characteristics traditionally associated
with women, as well as with men.
REVISED THEORY OF RESPONSIBILITY BETTER THAN TRYING TO SITUATE EXCUSES
INTO THE CURRENT THEORY
Review, 82 Calif. L. Rev. 1, p. 93
Moreover, if we adopt a new theory of responsibility - for example, one that transvalues the morality of
individual autonomy to affirm the perspective of those to whom such freedom is sheer indifference and,
therefore, enlarges the field of ethical responsibility - then our experience of intervention will be
reconstructed from the perspective of that revised theory. Perhaps Judge Bazelon's proposal now appears to be a
theoretical, as well as a practical failure, simply because he situated it within the constricting and weakly undertheorized
propositions of our present model of responsibility, a model dependent on a trenchantly antisocial and, again,
undertheorized model of human free will. The challenge is to find a way to revise our understanding of
personal responsibility for conduct so that we may continue to lay claim to our achievements and good
works, as well as our misconduct, while at the same time alleviating the conditions that lead to crime
without condemning the recipients of our assistance as less than full human subjects. Perhaps, then, intervention
may be intended and perceived as helpful particularly if it arrives in time to avert forms of physical and psychological misery that
inevitably erupt in violent, criminal transgressions.
Planet Debate
62
Executive Clemency for Those Killing Abusers Morally Just

STATE EXECUTIVE CLEMENCY FULFILLS PRINCIPLES OF JUSTICE
It is my belief that executive clemency is an appropriate means of granting relief to battered women who kill
their abusers, and that such exercises of the clemency power comport with commonly accepted principles of
retributive and utilitarian theories of justice. These principles provide a framework for analyzing when punishment or
clemency may be appropriate. Careful attention to the requirements of such a framework and a careful examination of the Ohio and
Maryland commutations may identify methods of improving the clemency process for battered women who kill their abusers.
Ultimately, my message is two-fold: (1) state executives both can and should use accepted principles of justice to
justify clemency for battered women who kill, but (2) there may be ways of structuring the clemency process so as to
lessen the backlash against decisionmakers, advocates, and the women who receive clemency.
The clemency power has been described as "an instrument of equity in the criminal law designed to
promote the general welfare by preventing injustice." Historically, American law has recognized several types of
executive clemency. A "pardon" is an executive action that mitigates or sets aside punishment for a crime; it is used most often to
restore the reputation and civil rights of someone who has led an exemplary life subsequent to punishment. "Amnesty," which usually
is granted to a group of people, in essence "overlooks" an offense because the conduct served to benefit the public good.
"Commutation" substitutes a milder punishment for the one imposed; it does not remove the legal or moral guilt of the offender. At the
federal level, the United States Constitution vests the clemency power in the President, and the majority of state constitutions vest
similar powers in the state executive. Clemency actions are generally nonreviewable, and "regardless of the reasons an executive may
have for granting clemency, the scrutiny of this discretionary act will be left to the political process rather than to
the courts."
PARDONS SHOULD BE EMPLOYED TO ACHIEVE MORALLY APPROPRIATE PUNISHMENT

Strike Back, Loyola of Los Angeles Law Review, 29 Loy. L.A. L. Rev. 297, p. 321
A retributive theory of punishment asserts that people should get what they deserve . Translating the retributive
theory of punishment to the pardoning arena is simply to state that since punishment is justified only when it is deserved,
so should pardons be granted only when they are deserved.
Based upon the retributive theory of punishment, the basic justifications for pardoning can be stated as follows:
Pardons are required when a convicted person is not liable to punishment on retributivist grounds; ...
pardons are justifiable when a convicted person is liable to punishment, but not morally deserving of
punishment; and ... pardons are unjustifiable when a convicted person is both liable to punishment and morally deserving.
Under this analysis questions of mercy and pity are irrelevant to the exercise of the pardoning power . Other
improper uses of the pardoning power include pardons for the public welfare, pardons to promote the private welfare of the pardoner,
pardons to reward past action, and pardons based on the respectability of the criminal's family.
Therefore, under a retributivist theory of pardon, all persons should get their just deserts. Any pardon that is
not based solely on what that person deserves is improper and thus should not be granted .
PARDONS FOR BATTERED WOMEN CONVICTED OF HOMICIDE ENHANCE JUSTICE

In order to satisfy the justice-enhancing goals of pardoning, a battered woman who has killed her abuser
must fit into one of the four categories outlined above: factual/legal innocence, technical guilt with significant
mitigating factors, technical guilt with moral innocence, or disparities in punishment and sentencing . Many
battered women who are convicted of homicide fit into one of these four categories, and thus deserve a pardon
according to the justice-enhancing goals of pardoning.
Planet Debate
63
Executive Clemency for Those Killing Abusers Morally

Just
ESTABLISHMENT OF A CLEMENCY COMMISSION BEST WAY TO ENSURE BATTERED
WOMEN WHO KILL ARE TREATED JUSTLY
To ensure that justice-enhancing uses of the pardoning power are kept free from political pressures and the
whim of the executive, a separate clemency commission should be established that is free from "the
political pressures which inevitably distort the decisions of elected officials. " This commission would be
responsible solely for determining whether the use of the executive pardon is justified under justiceenhancing rationales. "Such a board could ... be appointed during good behavior, and be selected based on expertise in various
areas relevant to assessing the fairness of the punishment imposed." The membership of the board should also include minorities,
"who traditionally have made up a large percentage of those incarcerated or sentenced to death," and "representatives of the citizenry,
victims of crime, and perhaps philosophers or clerics." Finally, "the process for selecting members of the commission would need to
be insulated from politicization as much as possible," and the members should be appointed by the executive in conjunction with some
other branch of government "to ensure that the appointees do not reflect a single political persuasion and are not beholden to a
particular individual or faction."
Ideally, any battered woman who has been convicted of homicide - and presumably any other criminal as well - would
be able to apply to the commission for a review of their case . Although it could be argued that such a procedure would
absorb too many limited administrative resources, at least seventeen states already operate special commissions, or boards, which
examine cases for the exercise of executive clemency.
The creation of such a clemency commission would benefit battered women who have killed by providing
them with the chance to retell their story to a group more focused on justice and less susceptible to the
biases of many trial courts and juries. The diverse membership of the commission would ensure that the
abuse and history of every woman is taken into account and not just those who fit into the paradigmatic or
good battered woman stereotype . Finally, this commission would be able to assess the punishment meted out to a particular
battered woman and determine if it was fair in relation to other punishments given for similar crimes.
Planet Debate
64
Jury Nullification for those Killing Abusers Morally Just

JURIES CAN ENDORSE MORALITY OF BATTERED WOMEN KILLING THEIR ABUSERS
THROUGH NULLIFICATION
Am U. J. Gender & L. 141, p. 163
Another reaction reflecting the community's sense of morality and justice - the sense that a battered woman
may be morally justified in killing her abuser - is jury nullification . The power of the jury is evident in the case of
Judy McBride, discussed supra in Section I. McBride arranged for a friend to "hurt' her batterer and he was found stabbed thirty-eight
times. A journalist covering the story said, "[the jury] hated her ... They were very unforgiving. They somehow didn't buy the battered
woman thing ... Crowds would be waiting at the courthouse door to yell things like, "I hope you hang.'" In 1982, a jury convicted
McBride of conspiracy to kill her husband and sentenced her to life in prison with no opportunity for parole. Rather than hate, as
manifested by this community through its jury, the justice system should urge compassion for battered women who
kill. Such compassion should be manifested in the form of jury nullification.
The Supreme Court observed that ""one of the most important functions any jury can perform' in exercising its
discretion ... is "to maintain a link between contemporary community values and the penal system .'" Jury
nullification is "not a "defense' recognized by the law, but is rather a mechanism by which a jury, acting as the
community conscience, effectively is permitted to disregard the letter of the law by determining that applying
it to a particular case would not be justified."

Juries, while finding that a defendant is technically guilty, may nonetheless refuse to convict . For example,
jurors may be willing to regard acts that are excessive or punitive as self-defense. Some call this an expansive view of self-defense,
others call it the popular acceptance of vigilantism. Whatever the label, juries should be encouraged to refuse to convict
when law and justice conflict. That is, they should be encouraged to refuse to convict a battered woman who
kills her batterer, especially when BWS evidence and self-defense are unavailable to the defendant .
JURY NULLIFICATION UNLIKELY TO SNOWBALL

Am U. J. Gender & L. 141, p. 165
Fears of juries running rampant are excessive. When carefully instructed, a jury should still act reasonably and
with full respect for the law and its own power. Courts should have faith in a jury's "sense of justice ." Faith in
the jury reflects that the jury is the final arbiter of justice, that the "law, in the last analysis, must reflect the general community sense
of justice."
Planet Debate
65
Failure to Examine Context Grounded in Scapegoating

RELUCTANCE TO ACCEPT DETERMINISTIC DEFENSES GROUNDED IN DESIRE TO
BLAME THE VICTIM AND SHIRK ANY RESPONSIBILITY FOR CREATING THE CONTEXT
A second reason many shrink at determinist perspectives is that such perspectives shift the focus in a case from
the individual actor to the harsh circumstances in which she found herself and to the fact that her crime may
be (at least partly) attributable to those circumstances. Many start to squirm when responsibility for a problem is
traced to social, economic, and political circumstances, because this implies that responsibility may
ultimately rest with those of us who help maintain those circumstances . Many of us would rather scapegoat
the victims of untoward circumstances than share any responsibility for their victimization and its
consequences. An instructive example of this scapegoating tendency comes from a borrowed exercise I go through with my
students.
BATTERED WOMEN OFTEN SCAPEGOATED

Ugly scapegoating also infects popular perceptions of battered women. Hearing that a woman repeatedly
"chose" to return to or stay in a battering relationship, some (perhaps many) conclude that she masochistically
invited further beatings, or at least "assumed the risk" of them . In either case, she-and not her circumstances-is
held fully responsible for her "choice" not to leave. And she alone is held responsible for the fatal
consequences of her "choice." To consider the possibility that her choice was severely constrained or illusory
requires us to factor her circumstances into our assignment of responsibility, which may ultimately mean
accepting some responsibility ourselves for what happened to her and the person she killed . For example,
assume that (as often happens in these cases) the battered woman kept going back because of economic necessity, or out of fear for her
safety and the safety of her children: Who is responsible for the discrimination against women in the workplace
(especially mothers who cannot afford decent day care on depressed wages) that breeds such economic necessity? Who is
responsible for the failure of courts and police to protect battered women who want to leave-a failure that
results in thousands of stalkings and deadly separation assaults each year? Perhaps we as a society bear
responsibility. But owning up to our collective responsibility for the plight of battered women deprives us of
the moral purchase to self-righteously condemn them for their so-called choices .
SOCIETY BEARS RESPONSIBILITY FOR THE CONDITIONS THAT FORCE BATTERED
WOMEN TO KILL
An example of a social condition that prosecutors would prefer fact finders not to hear about in self-defense
cases involving battered women is the lack of adequate protection from courts and police for battered
women. As Professors Schneider and Jordan note: "Women are forced to defend themselves against abuse because
they do not receive adequate protection from the courts or from the police." Elizabeth M. Schneider & Susan B.
Jordan, Representation of Women Who Defend Themselves in Response to Physical or Sexual Assault, 4 WOMEN'S RTS. L. REP.
149, 151 (1978). Economically, moreover, "many women are forced to remain with their husbands out of
economic necessity."
Planet Debate
66
Failure to Examine Context Grounded in Scapegoating

SOCIETAL FAILURE TO PROTECT ABUSE VICTIMS RENDERS DEADLY FORCE A JUST
RESPONSE
Excuse, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 685, p. 685-6
The prohibition against murder protects a vital interest . But when the danger of death or grievous injury is
imminent, private citizens are entitled to use deadly force to protect themselves . Looking at self-defense, we come
to understand why the exception, far from being a concession to some competing interest, in fact discloses the way the law of murder
protects the interest in life. Recent developments in the law of self-defense make this underlying structure
particularly clear. The pivotal cases involve women who kill their abusive partners. These cases are not
examples of the law permitting juries to excuse killers with whom they may sympathize. Instead, they show
that, in a certain class of cases, takings of life are justified .
The battered woman defense is easily misconstrued as a demand for special concessions for parties not competent to behave
responsibly. But expanding the reach of self-defense need not rest on compassion or seek to make up for felt
wrongs. Those who are unable to use ordinary remedies are entitled to extraordinary remedies because of
the extraordinary circumstances in which they find themselves. Such circumstances may present
themselves in unfamiliar settings.
DEADLY FORCE JUSTIFIED WHEN THE STATE FAILS IN ITS DUTY TO PROTECT
The exception to the law of murder marked out by self-defense illuminates the law of murder itself. In ordinary circumstances,
one cannot take the life of another. Ordinary circumstances are marked by clear alternatives to murder:
getting out of harm's way or invoking the protection of the state. The alternatives are linked because retreat is a viable
option precisely because one can normally depend on the state to provide protection. Those options are available to
virtually everyone, virtually all of the time. Only when they fail is private enforcement of justice warranted . And in
those circumstances, its justification is exclusively preventative. Considerations of revenge or desert are
ruled out; taking another's life is only acceptable if there is no other way to protect oneself or a third party. As highly as legal
systems value property, protecting it does not legitimate taking another's life.
Planet Debate
67
AT: Slippery Slope

MORALITY AND JUSTICE OUTWEIGHS THE THREAT THAT NEW DEFENSES POSES TO
OUR GENERAL ASSUMPTIONS ABOUT ACCOUNTABILITY
Fletcher's argument contains numerous deep flaws. First, his primary jurisprudential premise that the
criminal law-or any other branch of the law, for that matter-should merely reflect popular assumptions and "express the
way we live" is wrong. Popular assumptions sometimes reflect nothing more than ingrained stereotypes , and
the way we actually live may contradict our aspirations for the way we ought to live. To vindicate important values
such as racial and sexual equality, courts frequently make decisions that challenge prevailing stereotypes and
disrupt "the way we live." In the words of Professors Lon Fuller and Melvin Eisenberg, "the law has always to weigh against
the advantages of conforming to the laymen's assumptions, the advantages of reshaping and clarifying those assumptions." If
popular assumptions about personal responsibility contradict important moral norms (such as it is unfair to
punish someone for a wrongful act unless it reveals his "true character"), it is within the province of the
courts to focus the community's attention on the contradiction by recognizing an excuse that forces jurors,
sitting as representatives of the community, to confront this contradiction in reaching their verdict .
Furthermore, Fletcher's point that "our culture is built on the assumption that, absent valid claims of excuse,
we are accountable for what we do" is tautological. The argument merely states that "our culture holds actors accountable
unless they are excused." But such a statement begs the fundamental question: What constitutes a valid claim of excuse, and does
social deprivation qualify? If "our culture" is also built on the moral norm that only the blameworthy are justly
punished (as Fletcher elsewhere says that it is), then social deprivation might qualify as one of "our culture's"
"valid claims of excuse."

Finally, his argument that "it is difficult to resolve [the problem of determinism and responsibility] except by noting that we all blame
and criticize others, and in turn subject ourselves to blame and criticism, on the assumption of responsibility for our conduct," ends up,
in the words of Professor Mark Kelman, "as nothing more than the proud assertion of complacency." As Kelman points out, "it asserts
no more than that "our culture' (whose culture?) holds certain people accountable because that's what we have always done."
Disadvantaged and socially marginalized groups have especially good reason to regard such arguments with suspicion, for "what we
have always done" has produced and continues to perpetuate their desperate plight.
BATTERED WOMEN WHO KILL ABUSERS ARE UNIQUE AMONG CRIMINALS DO NOT
POSE ONGOING THREAT TO OTHERS
Review, 55 Kan. L. Rev. 269, p. 279-80
Battered women who kill share a number of characteristics. Few have resorted to violence against their
abusers in the past. As Angela Browne notes, "Women charged in the death of a mate have the least extensive
criminal records of any female offenders." Most have endured repeated, severe abuse over a period of years. At some point,
the violence against them escalated to a level where the battered woman believed that if she did not kill her abuser, she would be
killed. Lenore Walker explains, "Battered women who kill their abusers do so as a last resort ." Sue Ostoff, who has
represented more than 350 women who have killed their abusers, agrees: ""I've met only one woman who wanted to kill her husband.
Battered women don't want to do it. And they won't do it if they don't absolutely have to.'" One battered woman who killed her partner
described her experience: ""I would have been dead, in a short time, Tommy would have killed me. I know he would have. I know he
would have.'"
Battered women who kill have frequently tried to leave their abusers but have found that police, clergy,
courts, shelters, or other resources were either not available or not helpful in stopping the violence . In
addition, battered women are aware of the tenuous nature of the protection available through the legal system .
They read newspaper stories and watch television accounts about women who have called the police and obtained
orders of protection, only to be killed by their abusers. "When "media tragedies' like these hit the news, battered women
get the message: the system that fails to protect them from assault at home will not protect them when they leave."
Planet Debate
68
AT: Slippery Slope

NO EMPIRICAL EVIDENCE SUPPORTS ARGUMENT THAT ACCEPTANCE OF BATTERED
WOMEN KILLING THEIR HUSBANDS WILL CREATE AN OPEN SEASON ON HUSBANDS
Review, 55 Kan. L. Rev. 269, p. 317-9
Recall the words of the Des Moines Register columnist who urged that Dixie Shanahan serve a lengthy sentence: "Open a loophole for
one woman to kill an abusive spouse and pretty soon you've got dozens of dead husbands." Is there truth to this statement? Or does it
reflect the unfounded fear that abused women everywhere will rise up to slay their abusive partners if given the chance?
In a number of cases, abused women who have killed their partners have been acquitted. The media have
not reported an uptick in the number of murders of abusive partners in those communities. Just as battered
women are unlikely to be deterred from killing their abusive partners by the punishment that other women
who kill receive, they are equally unlikely to kill their partners because other women are acquitted - or receive
less than the maximum sentence. Battered women kill in very specific circumstances and for very specific reasons .
They kill when their individual assessments of their own situations make them believe that they have no
other choice but to kill or be killed. Luckily, relatively few battered women find themselves in situations that desperate.
Compared to the number of women in the United States who are battered each year, the number of battered
women who kill is very small.
Look at trends in the homicide rates among intimate partners. Over the past thirty years, the number of women being
killed by intimate partners has fallen by about 1% per year. Over that same period of time, however, the
number of men being killed by their partners has declined by about 4% annually. Of the 1830 murders attributable
to intimate partners in 1998, women made up nearly 75% of the victims, an increase from just over 50% of all victims of intimate
partner murder in 1976. The decline in the number of men being killed by their abused partners may be
attributable to the greater availability of services and support for battered women. Improved services
provide most battered women with options other than killing a partner to escape an abusive relationship.
The notion that battered women are simply waiting for a sign, in the form of reduced punishment, that it is
socially acceptable to kill their abusers is ridiculous. But it is also possible that this widely held notion prevents judges
from imposing just sentences on battered women who kill.
Planet Debate
69
AT: Abuse Excuse Bad

REJECTION OF ABUSE EXCUSES WOULD REJECT ALMOST ALL DEFENSES
Victoria Nourse, Law Professor-University of Wisconsin, 1998, The New Normativity: The Abuse
Excuse and the Resurgence of Judgment in the Criminal Law, Stanford Law Review, 50 Stanford L.R.
1435, p. 1446-7
All of this will sound plausible, no doubt, to many lay readers. For those who know something about criminal law defenses and
theories of self-control, however, Wilsons claims quickly unravel. For several decades, scholars have argued that most
of our excusesand some of our justificationsare based on defendants inability to freely choose a
course of action. Duress, self-defense, provocation, and insanity are widely understood as defenses that
exculpate because the defendants practical ability to choose, and thus to exercise self-control, has been
impaired. If this is right, how is it possible to draw the line between the abusive excuses where we should
encourage self-control and the non-abusive excuses where loss of self-control is permissible? If one takes
Wilsons theory to its logical conclusionthat we need to increase defendants self-control then why not demand
that those who act under duress or provocation also exercise self-control? If most defenses seek to excuse
based on defendants lack of self-control, the Wilsons theory has the potential to wipe the slate cleanto
bar almost every excusing feature of the criminal law. Explained another way: If the point is to encourage self-control,
and the law excuses defendants lack of self control, then almost all excuses become abuse excuses .
NO PRINCIPLED WAY TO DISTINGUISH FROM THE DEFENSES THAT WILSON WOULD
ALLOW AND THOSE HE OPPOSES
1435, p. 1447
The difficulty with this argument is that we have no idea why the small number of narrow excuses differ from
the rest. Although Wilson urges that we eradicate some defenses, like intoxication, to increase self-control, he
approves of other defenses precisely because the defendant has lost self control. He embraces claims based on a
reasonable lack of self-control grounded in provocation or duress. How can Wilson demand that defendants exercise
self-control when they are drunk but not when they are provoked or threatened? If we are to encourage
self-control, why not treat the defendant provoked by anger like the one driven by fear and tell both that
there is something that they can do? If the battered woman must control herself, why should the
cuckolded man be permitted to let his emotions run free?
COMBINATION OF PROVOCATION DEFENSES FOR MEN AND REJECTING ABUSE
EXCUSES FOR BATTERED WOMEN LEAVES WOMEN WITH NO OPTION
1435, p. 1454-5
At the same time, there are real differences in these cases: Whereas mens claims of provoked distress may be
triggered by lawful and protected rejections (e.g., filing for a divorce), womens claims of self-defense are
typically triggered by something the law unequivocally condemns (i.e., violence ). As a result, the
combination of these doctrines can, in some jurisdictions, lead to a cruel dilemma for the battered woman:
If she leaves and is killed, the law may say that the very act of leaving provoked her killers distress. But if
she acts on her own fears and kills, the law may question her claim for compassion precisely because she
did not leave.
Planet Debate
70
AT: Abuse Excuse Bad Theory of Responsibility Requires

Recognition of Excuse Defenses
THEORY OF LEGAL RESPONSIBILITY ASSUMES RATIONAL RESPONSIBLE ACTORS
IMMORAL TO PUNISH THOSE UNABLE TO ACT AS RESPONSIBLE LEGAL ACTORS
Excuse Defenses: A Legal and Conceptual Review, Crime and Justice, 23 Crime & Just. 329, p. 340-2
The law's concept of responsibility follows logically from its conception of the person and the nature of law
itself. Once again, law is a system of rules that guides and governs human interaction. It tells citizens what
they may and may not do, what they must or must not do, and what they are entitled to. Unless human beings
were creatures who could understand and follow the rules of their society, the law would be powerless to affect human action. Rule
followers must be creatures who are capable of properly using the rules as premises in practical reasoning.
It follows that a legally responsible agent is a person who is so capable, according to some contingent, normative
notion both of rationality itself and of how much capability is required. For example, legal responsibility might require the
capability of understanding the reason for an applicable rule, as well as the rule's narrow behavior
command. These are matters of moral, political, and, ultimately, legal judgment, about which reasonable people can and do differ. I
offer below an interpretation of criminal law's requirement of rationality, or "normative competence" (terms I use interchangeably),
but there is no uncontroversial definition of rationality or of what kind and how much is required for responsibility. These are
normative issues, and whatever the outcome might be within a polity and its legal system, the debate is about human action -intentional behavior guided by reasons.
Criminal law criteria exemplify the foregoing analysis. Most substantive criminal laws prohibit harmful conduct.
Effective criminal law requires that citizens must understand what conduct is prohibited, the nature of their
conduct, and the consequences for doing what the law prohibits. Homicide laws, for example, require that citizens
understand that unjustifiably killing other human beings is prohibited, what counts as killing conduct, and that the state will inflict
pain if the rule is violated. A person incapable of understanding the rule or the nature of her own conduct,
including the context in which it is embedded, could not properly use the rule to guide her conduct . For
example, a person who delusionally believed that she was about to be killed by another person and kills the other in the mistaken
belief that she must do so to save her own life does not rationally understand what she is doing. She of course knows that she is killing
a human being and does so intentionally. And although in the abstract she probably knows and endorses the moral and legal
prohibition against unjustified killing, in this case the rule against unjustifiable homicide will be ineffective because she delusionally
believes that her action is justifiable.
The general incapacity properly to follow the rule is what distinguishes the delusional agent from people who are simply mistaken but
have the ability to follow the rule. The person capable of rational conduct is at fault if she does not exercise her general capacity for
rationality. In sum, rationality is required for responsibility, and nonculpable irrationality or lack of normative
competence is an excusing condition. Blaming and punishing an irrational agent for violating a rule she was
incapable of following is unfair and an ineffective mechanism of social control. The lack of a general capacity for
rationality or normative competence is the more general theory of excuse that explains the so-called cognitive test for legal insanity.
Responsibility also requires that the agent act without compulsion or coercion, even if the agent is fully rational, because it is also
unfair to hold people accountable for behavior that is wrongly compelled. Consider again the example of a
desperado who threatens to kill you unless you kill two innocent people. The balance of evils is clearly negative: you can save your
own, single innocent life only by taking two innocent lives, so the killings would not be justified. But they might be excused because
they were compelled. Compulsion involves a wrongful hard choice that a threat produces that a rational, otherwise responsible agent
faces. If she yields to the threat, it will not be because she does not understand the legal rule or what she is doing or because the threat
turned her into an automaton. She knows it is wrong and acts intentionally precisely to avoid the threatened harm. The killing is
clearly action and satisfies most normative notions of rationality. Still, society, acting through its legal rules governing such cases,
might decide that some choices are too hard fairly to expect the agent to behave properly and that people will be excused for making
the wrong choice. Deciding which choices are too hard, that is, which threats might cause a person of reasonable firmness to yield and
to do wrong, is of course a normative matter. Once again, the subjective reaction of the threatened person is not the issue. The excuse
obtains only if the agent's conduct meets normative expectations and even if the agent is quite cool and composed as she makes the
wrong choice. (Of course, if the hard choice renders the person incapable of rationality, then there is no need to resort to notions of
compulsion to excuse.) In sum, a moralized hard choice theory is the more general theory of excuse that explains
duress.
Planet Debate
71
AT: Abuse Excuse Bad Theory of Responsibility Requires Recognition of Excuse

Defenses
SOME EXCUSES ARE MORALLY REQUIRED
My explanation and justification of holding people responsible and blaming them is an internal account, an interpretation of our
practices as I find them. My task is to determine if our practices are internally coherent and consistent with moral theories that we
accept. Although I accept that responsibility and blame are social constructs, my account is not purely pragmatic. I am concerned with
when it is fair to hold people responsible, to blame them, and to express our blame through sanctioning responses. This will depend on
facts about the agent and the situation and on moral theory. Thus, assuming that a coherent and consistent moral account
of our practices is possible, assertions about responsibility and blame will be propositional and have truth
value. For example, we believe that it is unfair to hold small children genuinely and fully morally responsible
for their misdeeds. Whether a harmdoer is of a certain age and whether he or she has juvenile attributes are
determinate facts, and a rich, morally defensible theory about fairness compels excusing small children . In
other words, I believe that, viewed internally, we are not just expressing an emotional preference when we exempt
small children from responsibility.
The internalist account I am defending asserts that to hold someone morally responsible and to blame them is to be susceptible to a
range of appropriate emotions, such as resentment, indignation, or gratitude, just in case that agent breaches or complies with a moral
obligation we accept and to express those emotions through appropriate negative or positive practices, such as blame or praise (see
Wallace 1994, from whose full explanation of this account I draw liberally). Moral responsibility practices are not simply
behavioral dispositions to express positive and negative reinforcers. They reflect moral propositional
attitudes toward the agent's conduct. So, for example, an appropriate responsive expression of blaming
language is rarely intended simply as a negative reinforcer, emitted solely to decrease the probability of a
future breach of this or a similar moral expectation. It also essentially conveys the judge's attitude that the
agent has done wrong. Because holding an agent morally responsible expresses a morally propositional
attitude, it is not a species of noncognitive and purely emotional response. Moral responsibility practices are not
solely propositional, however; they are not just descriptions of wrongdoing, of the breach of expectations. Again, holding people
morally responsible involves the susceptibility to a set of reactive emotions that are inherently linked to the
practices that express those emotions. It is one thing to say that behavior breached a moral expectation. This is an example of
objective description. It is another to hold the agent morally responsible for that behavior, which involves a complex of emotions and
their expression that have the force of a judgment. This, I believe, is what we are doing when we hold people morally responsible.
Planet Debate
72
AT: Abuse Excuse Bad Wilson Indicts

WILSON AND DERSHOWITZ FRAME THEIR INDICTMENT OF ABUSE EXCUSES IN
GENDERED DISCOURSE AND ASSUMPTIONS DELIBERATELY MISLEADING
1435, p. 1453-4
The provocation cases not only cast doubt on the consistency of Wilsons claims, they also expose a
commonly mistaken assumption about the proper villains in the abuse excuse drama . Professors Wilson and
Dershowitz both suggest, obliquely at times and overtly at others, that womens claims have helped to promote abuse
excuses. Wilson devotes more pages to battered womens syndrome than any other defense. Indeed, he
organizes his treatment of the defense in such a way as to suggest, contrary to historical fact, that battered womens syndrome led to a
general expansion of criminal law defenses under the rubric of imperfect self-defense. In this way, he implies a slippery
slope from Judy Norman all the way to the Menendez brothers.
Indeed, Wilson finds it hard to refrain from sensationalizing the role of gender, despite expressions of
sympathy for female victims. Wilson repeatedly uses womens claims to dramatize the failures of the
system: Throughout the book, we are treated to accounts of baby-bashing mothers, PMS-prone recidivists,
and battered women who assassinate their husbands. But what of the men who kill their sleeping wives?
If one is going to discuss intimate executions what about the numerous cases in which men pursue and kill wives who are trying to
leave them? To emphasize cases involving battered women who kill their partners in fear without even
mentioning cases involving men who kill their partners in anger seems almost calculated to distort.
Portraying women as the villains in the abuse excuse drama ignores parallels in the legal doctrines
governing men and women who kill their spouses. For example, Wilson and others have criticized battered
womens syndrome for failing to treat women as moral agents. But this is nothing new: Men have claimed for
decades that they should be partially excused from spousal homicide when their emotions get the better of
them. Few scholars, however, have urged that we eliminate the provocation defense because it diminishes
mens moral agency. Similarly, while battered womens self-defense claims have increased in scope and intensity in the past two
decades, the same is true of mens provocation claims. While mens provocation claims used to focus on a wifes adultery, todays
allegations may as easily depend on far more attenuated claimsthat the defendant became upset when his partner moved the
furniture out, took the kids, or argued about a messy house.
WILSONS INDICTMENT OF THE ABUSE EXCUSE BIASED LEGITIMIZES

PROVOCATION EXCUSE FOR MEN BUT NOT DISALLOWS BATTERED WOMENS SELF
DEFENSE CLAIMS
1435, p. 1437-8
In the end, Wilsons judgment disappoints. Wilson wants to blame the abuse excuse on a conceptual flaw in
modern defenses. But, if taken seriously, Wilsons argument extends much further, indicting a theory of excuse that now governs
understandings of both traditional and modern defenses. And, if that is true, the abuse excuse turns out to be a rather
empty ideathe abuse is everywhere the failed theory is and, in this sense, nowhere in particular. Wilson
is unable to see this because he is convinced that modernity is to blame. He wants very badly, for example, to
indict modern social movements for their role in creating excuses he considers abusive, such as battered
womens syndrome. Wilsons blistering critique of battered womens claims, however, leaves out an important parallel:
What of men who claim that they were provoked to kill their wives? Wilson does not appear to be
disturbed by such claims, embracing provocation as a traditional defense despite its obvious potential for
abuse. If Wilson is to take judgment seriously, he cannot indict some defenses for failing to judge demanding that
battered women, for example, show more self-controlbut not otherspartially excusing provoked men
precisely when they do lose self-control. Indeed, this selectivity risks leaving the impression that Wilsons
judgment is simple a conceptual peg upon which to hang political predilections . This is unfortunate, for the
revival of interest in evaluative approaches may be of enormous importance to criminal law theory: The new normativity deserves
more than a vague dismissal as politics wrapped in judgmental garb.
Planet Debate
73
AT: Abuse Excuse Bad Wilson Indicts

WILSONS SCHOLARSHIP SUFFERS FROM THE INTELLECTUAL PRACTICES HE INDICTS
1435, p. 1438
All of this poses a serious challenge to Wilsons greater intellectual aims . For many readers, I suspect, the cases
overwhelm Wilsons argument, obscuring his theoretical distinctions between hard and soft science, good and bad evidentiary
rules, or explanation and judgment. On one level, Wilson recognizes this danger. At the opening of the book, he
remarks that the true complexities of criminal behavior are lost when a particular trialhas caught the
publics attention. On another level, Wilson seems caught up in the very sensationalism he rejects. Like others
before him, Wilson cannot resist the lure of the popular trial gone wrong. He freely interweaves references to Dan White,
Bernhard Goetz, and the Menendez brothers throughout his analysis, supporting his argument by anecdote
while urging repeatedly the need for more rigorous intellectual analysis.
WILSONS ENDORSEMENT OF PROVOCATION DEFENSES UNDERMINES HIS CRITIQUE
OF THE ABUSE EXCUSES
1435, p. 1451-2
I suspect that Wilson, like many, would find these case disturbing. But, if so, none of Wilsons theoretical claims account for it.
Consider Wilsons argument that abusive excuses rely upon dubious syndromes. There is no male
rejection syndrome associated with the provocation cases I listed above. Men do not have to call expert
witnesses to explain that a reasonable person would lose self-control when his wife cheats or leaves; the
reasonableness of such arguments is assumed. Or consider Wilsons claim that too many excuses invite
jurors to consider group generalizations rather than the facts of a particular case. Provocation is not overtly
styled as a defense about any particular group even thought it surely does require jurors to make
assumptions about that group we call reasonable males. Finally, if Wilson is worried that defenses like
intoxication do not encourage self-control, why does he embrace the provocation defense precisely when it
does reward defendants lack of control?
Perhaps Wilson should not be blamed for this omission accounts of the abuse excuse have typically ignored or
misunderstood the provocation cases. And, although feminists have long decried the defense, sustained analysis at a
theoretical and empirical level has only recently emerged. The problem is that Wilson seems both to know something
about the provocation defense and to approve of it. Indeed, he specifically tells us that murder law should define
manslaughter as a killing that was the result of provocation, defined as behavior that would make a reasonable person immediately
lose self-control. In these cases I described earlier, however, that was precisely the defendants claim.
WILSONS ATTACK ON ABUSE EXCUSES WHILE DEFENDING TRADITIONAL

EXCUSES IS INTERNALLY CONTRADICTORY
1435, p. 1455-6
The truth is that if Wilson were to apply his theory consistently he would be forced to acknowledge that the
abuse excuse is an empty idea. If, as he urges, the problem is the use of behavioristic causal explanation, then
as the provocation cases make clearany excuse adopting that intellectual approach, traditional or not,
can become an abuse excuse. This is not simply a cute intellectual pointit is essential to understanding the nature of the
debate about the abuse excuse. Wilson clearly believes that we can surgically remove the abusive excuses,
leaving other traditional excuses safe form harms way. But if the abuse excuse is not a set of excuses but a
symptom of a disintegrating theory of excuse based on self-control, then Wilson cannot safely squirrel
away some self-control based excuses and reject others. If the problem is that the law has encouraged the
explanatory rather than the judgmental mode of thought, as Wilson asserts, then it is as much a problem with
the provocation defense, duress, and other traditional defenses should exculpate because the defendant
lacks self-control while condemning the laws failure to encourage self-control in other excuses . In the end,
Wilson applies his own theory of judgment selectively, leaving us to wonder, once again, how we are to
know the real abuse excuse.
Planet Debate
74
AT: Abuse Excuse Bad Dershowitz Indicts

DERSHOWITZ WRONG THAT TRADITIONAL SELF-DEFENSE LAW IS SUFFICIENT TO
COVER BATTERING VICTIMS
70 S. Cal. L. Rev. 337, p. 377-8
Another shortcoming of Dershowitz's criticisms of battering syndrome evidence is that he does not
adequately explain how traditional self-defense can encompass the claims of battered people who kill in
self-defense, though he argues that it can. He states:
Under traditional rules of self-defense, [a] woman would have the right to protect herself from being beaten up by her husband. So, if
he came home drunk one night and started to punch and kick her in the head, she would be legally entitled to grab his gun and - if
necessary to protect herself from imminent injury or death - shoot him. There would be no need in such a case to invoke the battered
woman syndrome. Traditional rules of self-defense would justify her use of deadly force.
The above example would fit under traditional self-defense doctrine because it describes a situation that
resembles stranger-to-stranger, man-to-man confrontational killings. Many battered people , however, would
not be able to defend themselves when directly confronting their abusers. Size and strength differentials
often matter when battered children or women are defending themselves against abusive men. Consider the
typical parricide, which would hardly qualify as a confrontational killing. Traditional self-defense doctrine defines imminence too
narrowly as confrontation and thereby excludes many battered people who kill to protect their lives. The Supreme Court of
Washington demonstrates a more enlightened viewpoint about the meaning of imminence in the self-defense context: "That the
triggering behavior and the abusive episode are divided by time does not necessarily negate the reasonableness of the defendant's
perception of imminent harm." Battering syndrome evidence would inform judges and juries of the threats and signals to which
battered people are attuned, indicating when they will be abused next.
DERSHOWITZS CONFLATION OF ABUSE VICTIMS WITH OTHER EXCUSE DEFENSES

TRIVIALIZES THE ISSUES OF THOSE WHO KILL ABUSERS
70 S. Cal. L. Rev. 337, p. 378
An additional problem with Dershowitz's discussion of abuse excuses is that he lumps the battering
syndrome self-defenses in with a list of other excuses, such as the legal abuse syndrome, premenstrual
stress disorder, the "television made me do it" defense, UFO survival syndrome, the adopted child
syndrome, and the black rage defense, to name a few. The battering syndromes, however, are distinct from these
other "abuse excuses." Battering syndrome self-defenses are raised when an abuse victim kills the batterer:
the actual person responsible for the abuse. Many of the other abuse excuses Dershowitz refers to, by contrast,
are incidents of people killing or committing violent acts against an innocent person, often a stranger, in
response to some generalized phobia or fear the person has acquired. It is quite different to kill a stranger
based on a generalized fear, than to kill one's longtime abuser in order to prevent future harm or death to
oneself.
Planet Debate
75
AT: Abuse Excuse Bad Dershowitz Indicts

DERSHOWITZS CLAIM THAT PRIOR ABUSE IS IRRELEVANT BASED ON FALLACIOUS
REASONING
70 S. Cal. L. Rev. 337, p. 378-9
In yet another criticism of battering syndrome evidence, Dershowitz claims that prior abuse is not always relevant to
why an abused person kills because most abused people do not commit violent crimes. This is fallacious
reasoning. While most abused people may not kill their abusers, various studies show that whenever
intimate killings do occur, a history of former abuse is usually present . Of the 254 parricides committed in 1982, of
which Richard Jahnke's case was one, nearly all involved prior abuse. A 1978 survey of women in a California state prison revealed
that twenty-nine of the thirty women incarcerated for killing their mates had been repeatedly abused by them. Similarly, "[a] review of
homicide records in Detroit and Kansas City revealed that, in 85 percent to 90 percent of the [homicide cases between partners], police
had been called to the home at least once during the two years before the incident, and in half (54 percent) of the cases, they had been
called five or more times." A history of former abuse would help to explain why the defendant believed that his
or her life was in imminent danger at the time the killing occurred. It is critical for a fair assessment of the
self-defense argument. These reasons make prior abuse extremely relevant in intimate killings .
Planet Debate
76
AT: Abuse Excuse Bad Fletcher Indicts

FLETCHERS ARGUMENT THAT IT IS IMMORAL TO EXCUSE VICTIMS WHO KILL
ABUSERS IS CONFUSED AND INCOHERENT
Lynne Henderson, Professor of Law, Indiana University, 1996, Crime and Punishment: Whose Justice?
Which Victims?, Michigan Law Review, 94 Mich. L. Rev. 1596, p. 1603-4
To the extent that Fletcher gives any content to the terms "victims' rights" and "justice," he appears to believe, simply, that a
real victim has a right to the defendant's conviction. A failure to convict a defendant is injustice to the
victim if, on Fletcher's view, the defendant should have been found guilty (pp.177-80). This thesis is provocative to
say the least, although Fletcher never fully develops or defends it. Fletcher's use of the word "justice" is equally
elusive. His conception of justice appears to rest on an underdeveloped notion of corrective justice, based loosely on a Kantian "just
deserts" formula, for morally blameworthy conduct. The book contains numerous, loose, Durkheimian and Kantian
allusions to the need to condemn wrongful acts, and to the premise that the accused acts autonomously and ought to be
punished because of moral guilt. It also contains a third, confused notion of criminal convictions as expressions of
community solidarity with the victim - the alternative apparently being collaboration with the offender and with evil - and a
notion of the community itself having some metaphysical claim to the defendant and the trial.
Untangling Fletcher's various conceptions of victimhood, we find him discussing individual victims of
particular crimes, past victims of crimes who raise that victimization as a defense, victims who are
members of victimized groups or groups that identify with some characteristic of the victims, and
defendants who belong to groups that have suffered discrimination. While each category of victim involves
fascinating issues, Fletcher fails to deal with any very well ; his main focus in the latter part of the book is on individual
victims. Individual victims (or their surviving relatives) constitute a category that he believes suffers particular injustice under the
current system and in whose name he advocates many of his reforms.
FLETCHERS PROPOSALS TO PROTECT VICTIMS UNDERMINE JUSTICE AND DUE

PROCESS
Which Victims?, Michigan Law Review, 94 Mich. L. Rev. 1596, p. 1604
"All courts, in all cases," Fletcher asserts, "[ought] to act as though the victims were organized and
demonstrating outside the courthouse doors" in this new political trial (p.243). Judges can prevent violence only if they
approach their work in this manner (pp.242-43). This proposal collapses individual victims and groups identifying
with victims: not only does it suggest that judges become victim advocates, but also that the amount of - or potential for outrage, turmoil, or publicity surrounding a case should affect judges. That these factors ought to affect
determinations of guilt is a surprising, and unsupported, assertion. Fletcher's model denies rule of law
aspirations to justice through due process, equal treatment, impartiality, and coherence, and supplants those
ideals with a kind of hip judicial vigilantism. Moreover, Fletcher's proposal highlights his error of using protest
demonstrations in individual cases to measure the level of injustice. Riots and demonstrations may be more attributable to patterns of
injustice rather than a specific case, as some trials, for complex reasons, become symbols of past injustice. Violent reactions to a
verdict in such symbolic cases can be poor indicia of justice (to attribute the violence in Los Angeles solely to the verdict in the King
case, for example, overlooks the decades of injustices perpetrated against the people of South Central).
Planet Debate
77
AT: Abuse Excuse Bad Fletcher Indicts

FLETCHERS ARGUMENTS REFLECT HIS GENDER BIAS
If we are to stand in "solidarity with the victim" (p.203), which victims count and why? Although Fletcher accuses
others of failing to empathize with or understand victims, and points to prejudice against homosexual men, African
Americans, and Jews, his own unreflective empathy for men and stereotyping of women lurks just below the
surface of his text. Superficially sympathetic to rape victims and victims of battering, Fletcher denigrates
data, selectively uses facts, and resorts to the current popular trend of scapegoating feminists throughout the
book. He uses the threat of Lorena Bobbitt's mutilation of her husband and the trope of male innocence and female guilt to argue that
feminists and women have gone too far and have distorted justice. Feminists, according to Fletcher, are responsible in
large part for injustices perpetrated against men, who have no lobby to "protest their victimhood" (p.243).
This is a revealing proposition, as every legislature and court system is dominated by men in sheer
numbers, not to speak of their likely empathy for men or attitudes to women. Yet Fletcher seems to believe
prosecutors, legislators, and judges deeply fear a feminist juggernaut that has distorted justice beyond
tolerable levels in cases involving female victims.
Fletcher's book contains two particularly troubling parts for those concerned about violence against women. First, he implies that rape
reform laws have gone too far in easing prosecutions (pp.115-17). Second, he misrepresents the extent and effects of
battering. In a book on victims' rights, the denial of the extensive victimization of women is shocking and
wrong.
FLETCHERS PRESENTATION OF THE PROBLEM OF DOMESTIC VIOLENCE IS BIASED
AND DISTORTED
Fletcher agrees that women who are killed by their partners deserve the solidarity of the courts and law enforcement as they are "real"
victims. However, Fletcher also states that because women also kill their partners (at about half the rate of men) the blood of men
stains their hands, and the courts must not be complicitous with the evil of killing men (p.132). Fletcher overlooks
the fact that women frequently kill their partners for different reasons than men, in different circumstances,
as well as the fact that for years, the criminal law averted its gaze from male violence against women.
In a section titled "Battered Women Strike Back" (pp.132-40), Fletcher minimizes the extent of violence against women
by casting doubt upon the data indicating high rates of abuse and upon the researchers in the area. Fletcher
implies that reports indicating that one in four women will be assaulted by "their men" at least once in their lifetime are misleading
because the figure includes "hostile contact that varies from a slight slap to life-threatening attacks" (p.132). Fletcher's suggestion
is that "slight slaps" are more prevalent than other forms of assault and, as such, are not violent, but minor,
undamaging, contretemps. He also calls into question the accuracy of emergency room data indicating a high
rate of admissions of women for injuries inflicted by intimates, citing Christina Hoff Sommers for the proposition that women
may over-report such assaults. He nowhere mentions the substantial empirical evidence indicating that
women underreport intimate violence to health care providers and others. And, lest we be tempted to believe the
extensive literature on battered women and domestic violence, Fletcher cautions: "the professional writing in this area is
motivated largely by political solidarity with women like Judy Norman, " a battered woman convicted of murder in
North Carolina (p.135).
Planet Debate
78
AT: People Will Fake the Defense

UNFAIR TO DENY JUSTIFICATION DEFENSE TO TRUE BATTERING VICTIMS BECAUSE
SOME PEOPLE ABUSE THE DEFENSE
70 S. Cal. L. Rev. 337, p. 376
Dershowitz's argument that abuse excuses are an evasion of responsibility is also based on the assumption
that abuse excuses are often concocted stories. He discusses the Menendez brothers' trials and the likelihood that their
stories of prior abuse were false. It is a gross error to generalize from the publicized Menendez brothers' case to
battered people in general. Dershowitz's concern is that the emotional evidence of abuse will "muddle the jurors' thinking" such
that they will not be able to make proper credibility judgments. He wants to protect juries, in whom he has little faith,
from defenses he thinks they cannot handle. It is unfair, however, to deprive legitimately battered people of a
valid defense based on this lack of faith in juries. This is especially so, given that traditional self-defense
doctrine is inadequate for handling domestic self-defense killings.
BETTER STRATEGIES FOR DEALING WITH THOSE WHO WOULD ABUSE THE DEFENSE
70 S. Cal. L. Rev. 337, p. 376-7
The better strategy for combatting concocted stories is to admit battering syndrome evidence where selfdefense is alleged, and allow the judge to limit the jury instructions on self-defense if the circumstances
show implausible evidence of self-defense. Beyond this strategy, society should rely on juries to fulfill their
traditional function of making credibility judgments. It is essential to allow battering syndrome evidence ,
because the evidence itself may affect the judge's or jury's decision about whether there was imminent
danger. Without such evidence, as Jahnke v. State and State v. Crabtree demonstrates, judges may make premature decisions about
why the defendants killed, based on traditional self-defense doctrine with its bias towards stranger-to-stranger, man-to-man
confrontational violence. Juries are likely to make the same mistake.
Planet Debate
79
AT: Battered Woman Syndrome is Disempowering/Bad

Stereotypes
JUDICIAL ACCEPTANCE OF BATTERED WOMANS CLAIMS IS EMPOWERING
CHALLENGES MARGINALIZATION
College Law Review 1081, p. 1137-8
The indifference with which domestic violence claims typically are treated affects women beyond the
potential deficiencies of a court order. In domestic violence matters, the law has the potential to serve as a
therapeutic agent in helping to restore emotional well-being and physical safety to battered women. Many
battered women are beset by self-blame and shame. They have repeatedly been told by their abusers that no one
will believe them. The very act of seeking court intervention demonstrates a woman's determination to
challenge that message. Perfunctory justice denies battered women the benefits of the impartial but authoritative judicial
recognition that they have suffered harm.
Victims of domestic violence who seek orders of protection are not only asking for an acknowledgment of the wrong to which they
have been subjected, they are also asking for a forum where they can be heard and confront their abusers. When the process affords
victims procedural fairness, including participation, dignity, and a sense of trust, the court process is transformed into a value unto
itself. The validation of a battered woman's claim is then an "inescapable by-product" of judicial process and review of the problem.
Within the enclave of the public courthouse, a battered woman may experience a redistribution of power in
her favor. Marginalization of her claim, however, destroys this opportunity. Judicial conduct which
undermines her efforts confirms an outcome predicted by the abuser and denies any transformative
possibility.
Planet Debate
80
AT: Battered Woman Syndrome Discriminates Against SameSex Relationships

CHALLENGING VIOLENCE AGAINST WOMEN ALSO CHALLENGES HETEROSEXISM
Brenneke, civil rights attorney, 1992 (Andrea Brenneke, Civil Rights for Battered Women: Axiomatic &
Ignored, 11 Law & Inequality 1, p. 108-9
Thus, it is clear that not all battered women will have similar immediate interests in, or direct benefits from, the use of the civil rights
remedies. There is, however, a connection between male dominance in society and the use of violence in the
struggle for power and control in all relationships. Violent attacks on lesbians because of their gender and rejection of
traditional gender roles might be actionable pursuant to the VAWA. Furthermore, the dominant culture's pressures and
stereotypes influence lesbian intimate relationships, even if the results do not replicate heterosexual practice. Lesbians
acknowledge the influence of the male dominated society on them. The lesbian community has internalized many societal messages
about women's roles. We need to be alert, questioning and helping each other to learn which of these roles to accept and cherish, and
which to let go. The attention we devote as a lesbian feminist culture to sensitivity, to processing problems, and to mutual emotional
support, emphasizes our recognition of the value of many of the traditional areas of women's skill.
The values of solidarity and support, relative isolation from the heterosexist culture, reluctance to being
"out" in that culture, lack of particularized community resources and the discrimination many lesbians face
when they are open about their sexual orientation perpetuates the isolation experienced by lesbian survivors
of battering. Such isolation prevents battered lesbians from seeking assistance. American culture "teaches women to be
nonassertive, dependent on others for validation, and nurturers of their relationships ;" the culture supports battered lesbians
in accepting blame for the abuse, sustaining hope that it will stop and seeing no alternative in the greater
community. Promotion of civil rights remedies for gender-motivated violence would serve lesbians
targeted because of their sex. By not articulating the experience of battered lesbians, use of the civil rights remedies by
battered women may risk battered lesbians' further isolation and danger in this area. But by challenging gender-motivated
violence in heterosexual relationships, battered women challenge the construct of gendered power relations
which would have positive ramifications in the lesbian community.
Planet Debate
81
AT: Justification Defenses Discourage Alternative Solutions to

Domestic Violence
RATE OF DOMESTIC VIOLENCE DECLINES IN AREAS WHERE JUSTIFICATION
DEFENSES FOR KILLING ABUSERS SUCCEEDED LEGAL RESPONSES AND SERVICES
INCREASED
70 S. Cal. L. Rev. 337, p. 379
Finally, Dershowitz states that battering syndrome self-defenses encourage people to kill before seeking help
and perpetuates domestic violence. Obviously, killing is not a pleasant or convenient alternative when there are others.
Moreover, Dershowitz presents no evidence that shows that domestic violence killings are increasing as a
result of the introduction of battering syndrome evidence into court. At least one study has found that since
1979, when evidence of battered woman's syndrome began to be introduced in court, the homicide rate for
battered women killing their abusers has decreased by approximately twenty-five percent. The decrease
may be correlated with the rise of emergency shelters and state legislation on domestic violence, which
implies that alternatives to killing are still encouraged.
Planet Debate
82
AT: Deterrence Only Legitimate Basis for Punishment

SPECIAL DETERRENCE DOESNT JUSTIFY PUNISHING BATTERED WOMEN WHO KILL
Review, 55 Kan. L. Rev. 269, p. 300
One function of punishment, according to deterrence theorists, is to prevent the individual being punished from
reoffending by showing that person that her wrongful actions will result in some form of deprivation. But if
the offender is particularly unlikely either to recidivate or to be deterred because of the situation in which
she finds herself, special deterrence is a weak justification for punishment.
Some believe that battered women are recidivists - that is, they tend to move from abusive relationship to abusive relationship. If this
were true, a greater likelihood would exist that a battered woman who had killed her abuser would find herself in a position where she
might kill again and punishment that deterred her from engaging in that behavior might be justified. But there is no empirical
evidence to support the claim that battered women engage in serial abusive relationships, and there is no
evidence that battered women who kill are likely to kill again. Most battered women who kill , like Dixie
Shanahan, have never been in trouble before. As Jean Harris noted,
It is one of the many ironies of this prison that many of the women with the longest terms are the least dangerous, and led the most
useful lives before coming here. ... They were good daughters, good wives, good mothers and good citizens until the day or night the
final straw of cruelty was piled on top of all the other straws ... .
Because battered women who kill are unlikely to be in a position to or be inclined to kill again, deterrence
does not justify their punishment.
Legal philosophers have explored whether there are situations in which individuals will not be deterred by the threat of punishment.
Nigel Walker contends that fear can make "normally law-abiding men and women become temporarily
undeterrable and do things whose consequences would usually deter them." Walker further argues that homicides
are "usually committed in undeterrable states of mind." Herbert Packer adds that "deterrence does not threaten those whose lot in life
is already miserable beyond the point of hope." Dixie Shanahan's actions are consistent with these arguments. In her testimony, she
described the fear that she felt for both herself and her unborn child, fear springing from the absolute certainty that she and the fetus
would be dead by the end of the day, as her husband promised. She also described the relentless abuse, injury, and humiliation she
suffered, an existence that would surely create the kind of hopelessness contemplated by Packer.
Before killing her husband, Dixie Shanahan was not thinking about the punishment she might endure for killing her husband; she was
thinking about the punishment he would surely mete out if she took no action. Only afterwards did Dixie Shanahan realize that she
was going to go to jail "because I had just shot somebody."
Consider again the four questions Bentham posited that individuals ask when they consider committing a crime: "How much do I
stand to gain by doing it? How much do I stand to lose if I am caught doing it? What are my chances of my getting away with it? What
is the balance of gain and loss as discounted by the chance of apprehension?" Bentham believed that punishment operates
to "reduce ... the attractiveness of the possible gain" by "injecting into the calculus a sufficient prospect of
loss or pain." This model assumes an offender with the time, clarity of mind, and access to other options to
make such a calculation. Dixie Shanahan never considered these questions, because the immediacy and
dangerousness of her situation did not permit her to do so. The threat of punishment did not deter her from
shooting Scott Shanahan and would not, in the extremely unlikely event that she found herself facing a similar situation, deter her in
the future.
Planet Debate
83
AT: Deterrence Only Legitimate Basis for Punishment

GENERAL DETERRENCE DOES NOT MORALLY JUSTIFY PUNISHING BATTERED WOMEN
WHO KILL THEIR ABUSERS
Review, 55 Kan. L. Rev. 269, p. 302-4
"Open a loophole for one woman to kill an abusive spouse and pretty soon you've got dozens of dead
husbands." This statement, made by an Iowa newspaper columnist shortly after Dixie Shanahan's sentencing, captures the
general deterrence rationale for punishing battered women who kill. The theory of general deterrence is
grounded in the assumption that potential offenders are deterred from committing crimes by their
awareness of the punishment that others have received for committing the same offenses. Jurors relied on that
rationale to convict Elaine Mullis, a battered woman who killed her husband with a four-inch paring knife
as he choked and mauled her while she prepared dinner. After the trial, one juror explained the verdict: "We
couldn't let her go ... . It would have been open season on husbands in Atkinson County." Elaine Mullis was
sentenced to life in prison.
The idea that all women - not just battered women - will begin indiscriminately killing their husbands if
battered women who kill are not punished drives the justification for punishing women like Dixie
Shanahan. But just as it is doubtful that Dixie Shanahan would have been deterred from her crime, it is also
doubtful that other women in the same position would be deterred by knowing that she was punished.
Deterrent effects have been linked to a number of variables, including "the type of crime, ... the incentive to commit the crime, the
severity of the threatened punishment and the extent to which the penalty is known [to the offender], and the likelihood of being
caught and punished." Legal philosophers believe that some crimes cannot be deterred, regardless of the
severity of the penalty.
Deterrence assumes that the potential offender has options other than committing the crime and can
therefore make a reasoned choice not to offend. But the context in which battered women make decisions
about offending is often one in which no other options are available. For battered women who kill, the
incentive is often to save their own lives or the lives of their children, and though they may be aware of the
penalties, they often believe that no other option is available to them, particularly because most kill after "numerous
other efforts to fight back, escape, or appease the abuser [have] failed." Battered women are frequently isolated from both formal and
informal sources of help - the legal system, shelters, clergy, family, and friends. Even if the woman is able to reach out, services may
be inaccessible for any number of reasons, including location, language, or culture. Further, although services that purport to stop the
violence may be available, they might not be particularly effective. Battered women who ultimately kill are aware of the
stories of women who have done everything "right" - called the police, sought protective orders, cooperated
with prosecutors - only to be horribly abused or killed by their attackers. Which is likely to have a greater
effect - seeing battered women who kill go to prison, or seeing women who have done all the system asked
of them harmed, even killed, despite their best attempts to flee? The lack of meaningful alternatives for
battered women whose situations have grown so dire that they believe they must kill or be killed impairs
their ability to be deterred.
Deterrence is also grounded in the idea that the potential offender will assess her own position relative to
the experiences of others like her. But the experience of being battered is not necessarily generalizable . In the
midst of a battering incident, the victim is thinking only about the unique circumstances of her situation, assessing the lethality of her
attacker and the likelihood that she or someone close to her will be killed. It is unlikely that battered women assimilating their
perceptions of imminent death stop to think, "Dixie Shanahan killed her husband and was sentenced to fifty years of imprisonment.
My situation is like hers. I am likely to be sentenced similarly. Therefore, I should find another solution - before he kills me."
Arguably, the deterrent effect could operate at an earlier moment in the relationship, spurring the woman to leave or seek other
assistance with her abuser. That argument assumes that the decision to kill is made at that earlier point; studies of battered women who
kill suggest, however, that these decisions are situational, made in the midst of a battering incident. Thinking about how she will not
be there to raise her children is not likely to deter the battered woman who kills if she is certain that she or that child is about to die.
Killing her abuser is the battered woman's only recourse in an untenable situation. She believes she must
kill or be killed. Knowing that Dixie Shanahan has been punished will not deter her from saving her own life. General
deterrence is not an adequate rationale for punishing Dixie Shanahan.
Planet Debate
84
AT: Incapacitation Only Legitimate Basis for Punishment

INCAPACITATION DOESNT JUSTIFY PUNISHMENT
Review, 55 Kan. L. Rev. 269, p. 305-6
Justifying punishment through incapacitation assumes that because an individual has offended in the past,
she is likely to commit additional crimes; the community, therefore, will be safer if the individual is
removed from society. If the offender is unlikely to recidivate, however, the justification fails . Murderers have
very low rates of recidivism, and, as discussed above, battered women who kill have rarely engaged in criminal
activity previously and are highly unlikely to commit future crimes. While incapacitating Dixie Shanahan will
certainly keep her out of society, it is doubtful that doing so prevents future crime.
A more interesting question is whether the greater good accrues to society as a result of punishing Dixie Shanahan. By all accounts,
Ms. Shanahan was a productive member of her community. She provided care not only for her three children and for her husband's
parents until their deaths, but also for the sick and elderly patients residing in the nursing homes where she worked throughout her
marriage. Proponents of incapacitation would argue that society benefits because Ms. Shanahan is not free to
commit other crimes. But the likelihood of Ms. Shanahan's reoffending is low and must be balanced against
a number of other costs to society created by incapacitating her. Instead of having Ms. Shanahan contribute to the
community's tax base, the state will bear the costs of her incarceration for at least the next thirty-five years. Ms. Shanahan's children
lose their mother, the only stable figure in their lives. Experts believe that severing the bonds between children exposed to domestic
violence and their abused parents can have profoundly negative consequences for those children. Ms. Shanahan's new husband,
friends, neighbors, coworkers, and community are all deprived of the positive contributions she made to their lives on a daily basis.
Ms. Shanahan's elderly and disabled patients no longer receive the high quality of care she provided them. Juxtaposing all of
these losses to the community against the low risk of further criminal behavior, it is hard to see the
utilitarian justification for incapacitation in this case.
Planet Debate
85
AT: Rehabilitation Only Legitimate Basis for Punishment

REHABILITATION DOESNT JUSTIFY PUNISHING BATTERED WOMEN WHO KILL
Review, 55 Kan. L. Rev. 269, p. 307-8
Rehabilitation also assumes that the criminal cannot or does not recognize the wrongfulness of her actions. But
most battered women who kill regret the killings and recognize their own legal guilt. They do ask, however,
that these killings be considered in the context of the violence that they suffered . As one woman explained,
I'm not asking to be found not guilty, because I am guilty, I took his life, I did it. But, there were extenuating circumstances, and they
should take that into consideration, you know. ... I am definitely guilty of taking his life, I mean, if I was found not guilty, they'd have
to look for who did it, right, I mean, someone's got to be guilty. And I certainly take responsibility for what I did, I have no problem
with that, but I certainly don't deserve 18 to 20 years for it.
C.L. Ten explains that offenders are rehabilitated to the extent that they will not commit similar offenses in
the future because their values have changed and they now believe such offenses are wrong. Most battered
women who kill already have this understanding, but if faced with the same situation would likely make the
same decision, believing that they had no other choice. As Dixie Shanahan explained shortly after her sentencing, "If I
was in the same circumstances, would I do it again? Yes I would ... knowing what it cost me and my children." These women need no
change in values - only a change in the circumstances that created a situation that led them to kill.
Planet Debate
86
AT: Killing Abusers Doesnt Meet Moral Basis of Justice

NO CLEAR CONSENSUS ON THE MORAL FOUNDATION OF PUNISHMENT
In general, a system of criminal justice exists "to make people do what society regards as desirable and to
prevent them from doing what society considers to be undesirable." Yet despite that rather obvious goal,
historically there has been little agreement among scholars, judges, politicians, and clergy as to how to
achieve it. As a result, the history of punishment has been marked not by a coherent approach to criminal
justice, but by the successive dominance of different, and sometimes antithetical, approaches .
Planet Debate
87
AT: Killing Abusers Doesnt Meet Self Defense Standards

KILLING AN ABUSER CAN BE JUSTIFIED UNDER MORAL THEORY EVEN IF IT DOESNT
MEET THE LEGAL STANDARD OF SELF DEFENSE
Claire O. Finklestein, Law Professor-University of California, Berkeley, 1996, Self-Defense and
On the excuse side, the initial implausibility of my thesis will stem from the fact that excuses are normally associated with lack of
responsibility. I wish to suggest the applicability of excuse, however, where there is no relevant psychological impairment. Excuse
should be available in cases where the ground for exoneration lies in the content of an agent's reason for
doing what she did. Rational excuses thus share a characteristic with justifications: they apply to actions
done for a reason, where the excuse itself provides the reason for the violation of the prohibitory norm. As I shall argue, however,
a defense which falls in this category lacks the primary identifying characteristic of justifications in the criminal law-the endorsement
of the agent's behavior. Elsewhere I have suggested that the defense of duress should also be thought of as exoneration of intentional,
nonjustified conduct. In this sense, defenses like duress and, as I argue, self-defense, are situated between full moral
endorsement and lack of responsibility.

My argument will proceed as follows. In the next part, I argue in favor of the law's motivation-based approach to self-defense,
rejecting what I call the "bifurcation strategy," namely a position that treats a purely motivation-based defense under the heading of
"putative," rather than actual, self-defense. I also argue, however, that the bifurcation theorists are right to reject the motivation-based
account of justification. These two theses in combination entail that self-defense should be thought of as an excuse. In part III, I turn to
the wider philosophical background to the notion of justification. I consider a conception of justification which, like the view of
rational excuse for which I argue, focuses on agent-motivation, namely the Hobbesian conception. Insofar as it combines a focus on
motivation with the justification picture of self-defense, the Hobbesian view represents the position towards which modern law tends.
But the law does not take a consistently Hobbesian approach. Instead, it stands midway between the Hobbesian view and an older,
quite limited picture of justification, one that regards justification as sharply limited to state action undertaken on behalf of collective
welfare. In part IV, I offer a possible philosophical rationale for the older, more limited conception : other-
regarding actions undertaken in defense of certain interests have a moral priority over comparable selfregarding actions. Insofar as it is self-regarding, on this view, killing or harming another in self-defense cannot be
justified; it can, however, be permitted under the moral framework of excuse. In part V, I explore the doctrinal
implications of conceiving of self-defense as a motivation-based excuse. Finally in part VI, I return to the battered woman cases that
prompted our investigation, arguing that the notion of "rational excuse" helps to resolve the tension between intuition and doctrine in
such cases.
Planet Debate
88
AT: Self Defense Limited to Imminent Attacks

SELF DEFENSE IMMINENCE REQUIREMENT IS A POLITICAL NOT MORAL IMPERATIVE
George P. Fletcher, Professor-Columbia University School of Law, 1996, Self-Defense and Relations of
Domination: Moral and Legal Perspectives on Women Who Kill: Domination in the Theory of Justification
and Excuse, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 553, p. 569-70
The limited range of competence to invoke the necessity defense stands in contrast to the free-ranging legislative power to prescribe
general rules of socially desirable conduct. Every socially justified prohibition benefits some people and harms
others, yet it is the legislature's prerogative to make these judgments that impose uncompensated costs on
some people. The legislature is empowered, in short, to pick the victims of the common good. Yet these are
not the costs that we wish private individuals to impose on each other, even if the private judgment of social welfare
is correct. Thus the requirement of imminent risk insures that the stage be set before the individual play his
part in furthering the common good.
The significance of the imminence requirement in cases of self-defense bears some resemblance to the account I have given of
imminence in necessity cases. In the latter context, the imminence requirement expresses the limits of governmental competence:
when the danger to a protected interest is imminent and unavoidable, the legislature can no longer make reliable judgments about
which of the conflicting interests should prevail. Similarly, when an attack against private individuals is imminent, the police are no
longer in a position to intervene and exercise the state's function of securing public safety. The individual right to self-defense kicks in
precisely because immediate action is necessary. Individuals do not cede a total monopoly of force to the state. They reserve the right
when danger is imminent and otherwise unavoidable to secure their own safety against aggression.
Several implications follow from this account of the imminence requirement. First, the requirement properly falls into the
domain of political rather than moral theory. The issue is the proper allocation of authority between the
state and the citizen. When the requirement is not met, when individuals engage in preemptive attacks
against suspected future aggressors, we fault them on political grounds . They exceed their authority as citizens; they
take "the law into their own hands." Precisely because the issue is political rather than moral, the requirement must
be both objective and public. There must be a signal to the community that this is an incident in which the
law ceases to protect, that the individual must secure his or her own safety.
Planet Debate
89

MUST CONSIDER IMMINENCE REQUIREMENT DIFFERENTLY IN CASES OF DOMESTIC
VIOLENCE
Cases involving self-defense by battered women make it clear that the concepts of both imminence and
reasonableness are in part constructive. That is, concepts of reasonableness and imminence get their content
from views about fairness and are not exhausted by extralegal meanings of the same terms. A danger that
will materialize much later may be imminent, if the accused had no opportunity to get out of harm's way. If
the deceased threatened to kill her if she didn't kill him first, and her experience with him gave her good
reason to believe that he meant it, her position is no different than that of the man threatened with a broken
beer bottle in a barroom brawl-her only choices were to act or be killed. Any explanation we might give of
her failure to leave the relationship earlier is not to the point-at the moment of choic e, she had only two options.
Some of the factors that limited her ability to leave the relationship earlier continue to be relevant, including the likelihood of later
attacks. But other factors, such as her fear of social stigma, however significant they may be to her earlier failure to leave, are not
sufficient to establish that she had no choice but to kill or be killed. Understanding those fears explains how she could have stayed in a
situation that led to her moment of decision, but the justification for taking her abuser's life depends on her alternatives at the last
moment.
In a Canadian case, R. v. Lavallee, that country's supreme court confronted the issue of whether expert testimony about battered
woman syndrome should be admitted. The facts of the case are sadly familiar. Lynn Lavallee and Kevin Rust had cohabited for several
years. Rust had beaten Lavallee repeatedly. On the night in question, he handed her a gun and told her that if she didn't kill him, he
would kill her when their company left. She fired the gun, aiming over his head, and killed him. The comments of Madame Justice
Bertha Wilson about the situation are striking:
The situation of the battered woman . . . strikes me as somewhat analogous to that of a hostage. If the
captor tells her that he will kill her in three days time, is it potentially reasonable for her to seize an
opportunity presented on the first day to kill the captor or must she wait until . . . the third day? I think that the
question the jury must ask itself is whether, given the history, circumstances and perceptions of the appellant, her belief that she could
not preserve herself from being killed by Rust that night except by killing him first was reasonable.
Wilson's analysis allows us to see that the issues raised by these cases are not just about women. Although women are overwhelmingly
the victims of domestic violence, others may face imminent threats that are nonetheless spread out over a period of time. Both the
idea of a onetime interaction and the idea that an imminent attack must be seconds away are appropriate to
one instance of self-defense. However, they are not essential to exculpation. Battered women present another
instance, and there may well be others.
Self-defense by battered women also reveals the relationship between the requirements of imminence and
the availability of other options. For "imminent" means nothing more than "before any reasonable
opportunity to get out of harm's way." As Lafave and Scott note, "the proper inquiry is not the immediacy of the threat but the
immediacy of the response necessary in defense." In order for self-defense to justify taking the life of another, the accused must have
had no choices other than facing death or defending himself. The availability of reasonable paths of retreat means that no response is
necessary in defense.
Planet Debate
90

SELF DEFENSE APPROPRIATE FOR BATTERED WOMEN DO NOT NEED TO RELAX THE
REASONABLENESS REQUIREMENT
On this understanding, the law of self-defense in cases involving battered women remains entirely objective . In
claiming that the law is objective, I do not mean to suggest that we can determine what is reasonable by looking to what some typical
or average person would do in the circumstances. It is objective in the narrower sense of not being subjective. The boundaries of
one person's rights are not set by another person's view of them, but rather by the security interests that both
are presumed to have. A battering relationship changes the factual circumstances in which a woman may
need to act to defend herself; it does not change the conception of reasonableness. The accused still must
show that her belief that she was in danger of death or grievous bodily harm was reasonable, and that she
did not have a realistic alternative open to her. These are things that anyone claiming self-defense must
show. Although testimony may sometimes create the impression that battered women who kill are incapacitated, the law of selfdefense need make no such assumption in exculpating them.
Claims of self-defense by battered women call on the law to accommodate inequalities of power . The criminal
law aims to protect people equally from each other. When one party is physically stronger or more able to use his or
her strength than the other, the law must take that into account . Doing so does not entitle the weaker party to avenge
earlier wrongs. But it does allow her to act to defend herself in whatever ways she can when she reasonably
believes that she is in danger.
Planet Debate
91
AT: Deadly Force is not Justified

DEADLY FORCE IS JUSTIFIEDMULTIPLE REASONS
Am U. J. Gender & L. 141, p. 149-51
To some, the death of the abuser may seem an inappropriate or excessive way for the battered woman
vigilante to punish her abuser and repair the social order. Deadly force on the part of the battered woman, however,
may be justified in several ways. First, death may be necessary because lesser degrees of force may be
insufficient. The battered woman may not be able to confront the batterer without a deadly weapon because of disparities in size,
strength or emotional control. The lower degree of force a woman typically exerts upon a man may have little or no impact on a
physically stronger abuser. Indeed, a woman's lesser degree of force may only incite a vicious retaliation by the
abuser.
In addition to believing that a lesser degree of force will be insufficient, many women may believe that leaving is not
possible. Those that do attempt to leave report that their abusers follow them, continuing the harassment and
violence. Thus, if one accepts the premise advanced by BWS that battered women are, for a variety of reasons, unable to leave the
batterer, and are often weaker than their abusers, then death may be the only means by which battered women can
escape the abuse.
Moreover, the use of deadly force is legally permissible in circumstances other than self-defense. In
California, for example, deadly force is permitted by any person, not just a police officer, if necessary to apprehend
any person for any felony. In these situations, a citizen must also have a reasonable fear that his or her life is in danger. While
this law has most often been applied to persons who have shot intruders entering their homes , such reasoning is broad enough
to include battered women. Battered women should be seen as apprehending the batterer for committing a
felony, the battery itself.
Finally, death may be justified under a retributive analysis in which the battered woman is seen as punishing
the batterer. Regardless of whether one morally approves of capital punishment, it has been sanctioned by the Supreme Court and
many states. If the battered woman is stepping in where the state has failed, then she should be permitted to
exercise the same powers as those possessed by the state. While the punishment may not seem to fit the crime, other,
less extreme, forms of punishment or force may not be available to the battered woman.
Other forms of violence - Lorena Bobbit's maiming, drawing and quartering and torture - are not permissible under this rationale
because they are not are state-sanctioned punishments. While it may seem odd to advocate killing and not other forms of force, this is
a decision made by the states and accepted by a large portion of American society. The death of the batterer, therefore, is a
permissible solution for battered women.
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AT: Your Arguments Are About Law not Morality

LEGAL STANDARDS DETERMINE AND REFLECT MORAL STANDARDS
The border between justification and excuse is not always so clear; it can sometimes be perplexing or hazy (Greenawalt 1984). For
example, is an honest and reasonable but mistaken defender's self-defensive conduct justified or excused? To ask the question more
precisely, should the objective rightness of the conduct be judged according to the reasonableness of the agent's belief or according to
the actual state of the facts? If the former is the right interpretive strategy, the defender is justified; if the latter, she is excused on the
ground of reasonable mistake. Criminal law theoreticians dispute such questions and there is no obviously right answer (Robinson
1997). Nonetheless, there are cleanly distinguishable cases of clear justification and excuse and the distinction matters (Dressler
1987). The law is a teacher that sets moral and social standards for conduct. The distinction encourages
citizens to understand the difference between right and wrong, and it deters doing wrong. Moreover, the
characterization of a defense as a justification or as an excuse may substantially alter the outcome: a justified defendant is properly
and entirely freed as well as acquitted; an excused defendant who may continue to be a nonresponsible agent and a danger to society
may be subject to civil or quasi-criminal interference with her liberty. For these and other reasons, it is important to distinguish
justification from excuse as a theoretical matter and when characterizing claims about defenses.
LEGAL RULES ARE GROUNDED IN MORAL JUDGMENTS

Excuse Defenses: A Legal and Conceptual Review, Crime and Justice, 23 Crime & Just. 329, p. 343
The reactive account theorizes that we hold people morally responsible if they breach a moral expectation we
accept. A moral expectation that we accept is one that can be normatively defended by reason. Most of the
core prohibitions and obligations of the criminal law, including the justifications, command broad
normative assent. We might argue about various qualifications, some of which can be very controversial, but the basic notions
would be difficult to contest. Most core criminal law prohibitions do not seem to infringe unfairly on freedom or
to require saintly virtue. They are fair expectations, and we understand the need to give normative reasons
if we believe they are not fair.
CRIMINAL JUSTICE SYSTEM LAW, DEFENSES AND VERDICTS SEND MORAL MESSAGES
TO SOCIETY
Clearly, convictions function as these scholars suggest; crimes are precisely identified in verdicts to send
accurate moral and legal messages. Many people have moral intuitions with regard to, say, burglary, or
shoplifting, and apply that intuition to any individual convicted of those offenses. This is appropriate in that a valid
conviction represents a finding that every element of a particular offense has been proved beyond a reasonable doubt. It would be a
significant moral problem for someone guilty of one offense to be treated by the legal system as though she
had committed an offense of greater or lesser severity or one with different elements.
CRIMINAL LAW SIGNALS PUBLIC MORALITY
Just Convictions, p. 199
The criminal law embodies an important component of the official representation of the conventional public
morality. As such, it provides a set of behavior directives and incentives designed to maintain a system of
cooperative social interaction, but it also serves important expressive functions. Criminal offense
definitions and justification defenses instantiate the more abstract substantive principles of the conventional
public morality in a form that facilitates interpretation and application by officials and citizens . These
provisions also contribute to the definitions of the parameters of the public and nonpublic jurisdictions. Certain offense elements,
excuses, and mitigating factors represent systemic criteria of accountability and blameworthiness.
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AT: Presumption Against Legitimizing Deadly Force

SHOULD ERR ON SIDE OF PROTECTING BATTERED WOMEN ERRONEOUS AQUITTALS
DO NOT PRESENT LARGE SOCIAL HARMS
Andrew E. Taslitz, Professor Howard University School of Law, 1998, Abuse Excuses and the Logic
and Politics of Expert Relevance, Hastings Law Journal, 49 Hastings L.J. 1039, p. 1064
The consequences of acquitting the battered woman are arguably far less. We know that she was indeed
battered. Her husband was not innocent. We therefore regret errors less. Moreover, although any error suggests a
failing of the justice system, that failing should not be perceived as buttressing a domination system. To the contrary, the verdict
will likely be received as reflecting community compassion for a woman who may have over-reacted in the
face of intense suffering. Erroneous acquittal of the wife does not, therefore, raise any social concerns
different from those in a wrongful acquittal of any other killer. But social power expands our awareness of
the political consequences of evidence law to include unequal respect, shattered relationships, blocked
catharsis, reduced caring, indeed any social costs associated with evidence law. We should take those social costs
into account in crafting rules governing whether to permit expert testimony in the battered woman and subway vigilante cases.
Planet Debate
**NEGATIVE**
94
Planet Debate
95
Justice System Not Biased Against Women Now

WOMEN LESS LIKELY TO BE CONVICTED OF KILLING THEIR SPOUSE CONTEXT OF
BATTERING IS TAKEN INTO ACCOUNT
Ryan Elias Newby, JD Candidate Hastings, 2011, Evil Women and Innocent Victims: The Effect of
Gender on California Sentences for Domestic Homicide, Hastings Women Law Journal, 22 Hastings
Women's L.J. 113, p. 117-9
Studies have also found differences between the sentences of men and women who commit spousal
homicide. As with other violent offenses, fewer women are convicted of spousal homicide than are men. There has
been much debate over the meaning of this difference and the different sentences imposed. Some have argued that women
who kill or otherwise harm their husbands receive undue leniency due to illegitimate use of what Alan
Dershowitz has called the "abuse excuse." Dershowitz criticizes the use of past harm to show the reasonableness of deadly
violence. He and others, like James Q. Wilson, have argued that the acceptance of Battered Woman Syndrome evidence shows a
decline in the importance of personal responsibility in American society. Whether this particular contention is accurate, some studies
of intimate partner homicide have indeed shown women and men being arrested for first-degree murder at
similar rates, but convicted at different rates.
The small number of women defendants in the domestic violence and homicide cases discussed supra,
combined with the differential treatment of male and female defendants generally, lends support to the
argument that women are treated with leniency in the criminal justice system. The most common explanations
feminist criminologists give for such differences in punishment between men and women are the chivalry theory and the paternalism
theory. Chivalry theory posits that men are unwilling to harm women or to believe that a woman could be capable of criminality. The
paternalism theory states that women are seen as childlike and in need of protection and guidance, and therefore cannot be held fully
responsible for their wrongful acts. Both theories "assume that judges have a benevolent or condescending attitude towards women
and believe women defendants are in need of guidance and protection from the harshness and stigma associated with prison
sentences." Many studies support that "wherever discretionary decisions are made, women are less likely than men
to be detected, arrested, charged, convicted, and sentenced," and that when women are sentenced, they
receive "milder sentences than men." Further, there are indications that women are less likely than men to actually be
executed once they are sentenced to death.
Planet Debate
96
Justice System Not Biased Against Women Now

NO EVIDENCE OF SYSTEMIC STATE COURT BIAS
Glendon, Professor Harvard Law School, Amicus Brief for Womens Freedom Network, US v
Morrison, 1999, 1999 U.S. Briefs 5; 1999 U.S. S. Ct. Briefs LEXIS 350
Although others will no doubt cover this topic in depth, we present a few examples to debunk the myth of State court bias.
First, even if States treat domestic violence less seriously than murders or robberies, the same treatment
is
given to other violent crime between acquaintances. Arrest rates for domestic and non-domestic disputes do
not differ once levels of injury are taken into account. See, e.g., Douglas A. Smith and Jody Klein, Police Control of
Interpersonal Disputes, 31 Social Problems 468 (1984). And insofar as prosecution rates for domestic violence
offenses are lower, it is because women refuse to press charges - a choice they freely make, and one that
cannot be attributed to States.
Second, States convict male murderers at equal rates, regardless whether the victim was the offender's
spouse or was a (generally male) non-family member. See Patrick Langan and John M. Dawson, Spouse Murder
Defendants in Large Urban Counties, BJS Special Report Sept. 1995 (two-year study of 75 largest urban counties, with more than half
of all U.S. murders).
Indeed, women receive far gentler treatment from the courts than men do. Women who committed
unprovoked murders of their husbands received an average sentence of only seven years, whereas men who
committed unprovoked murders of their wives received an average sentence of seventeen years. See id. at 3.
Brzonkala's comparisons of prosecution and conviction rates between murder cases and rape cases are
not appropriate. See Brz. Br. at 16. In murder cases, it is generally clear that a crime has been committed, because a person is
dead; furthermore, the law does not recognize consent to murder. Rape prosecutions, on the other hand, often
must prove both the question of consent and the question whether a crime has been committed (unless there is
physical evidence of injury), and the fact-finder often must decide between two conflicting versions of the event, neither of which is
supported by other evidence.
The proper comparison, therefore, is between treatment of rape cases and treatment of felony assault cases,
because these also often involve acquaintances who each tell uncorroborated and conflicting stories. And prosecution and
conviction rates for rape and for violent assault are almost identical. See U.S. DOJ, Bureau of Justice Statistics,
Tracking Offenders 2 (June[**61] 1991) (eight-state study showed that 80 percent of those arrested for sexual assault were prosecuted,
compared with 77 percent of those arrested for felony assault; 54 percent of those prosecuted for sexual assault were convicted, but
only 46 percent of those prosecuted for felony assault were convicted).
Finally, many of the evidentiary rules against which Petitioners complain are designed to ensure fairness to
defendants, who are entitled to the presumption of innocence. Eliminating such rules--for example, by
failing to question an inconsistent story - would risk grave injustice to men. See, e.g., S.Rep. 103-138 (Sept. 10,
1993) (suggesting there is anti-female bias in fact that court personnel" question the credibility of rape victims based on ... matters that
are irrelevant ... For example, they may require a woman ... to tell a consistent story"); S.Hrg. 103-878 (Nov. 16, 1993) (quoting
Senator Cohen's assessment that gender bias was revealed in case where jury failed to find that wife's cutting off husband's private
parts was conclusive proof that husband had committed rape).
Planet Debate
97
States Have Improved Their Responses to Domestic Violence

STATES MADE MAJOR REFORMS IN THEIR LAWS TO BETTER ADDRESS GENDER
VIOLENCE
DePaul Law Review, 2001, [Jennifer R. Hagan, JD Candidate], Spring, 50 DePaul L. Rev. 919, p. 971-3
The states' legislative response to the problem of domestic violence represents the first step in combatting
gender-bias in the state legal system and improving the lives of domestic violence victims nationwide. Over
the last twenty years, state legislatures have taken steps to address the need for more aggressive domestic
violence legislation and the presence of gender bias in the legal system. As a result, the increasing public
acknowledgement of the domestic violence epidemic has created a situation where state politicians cannot afford to ignore the need for
legislation dealing with gender-motivated violence, unless they risk being voted out of office. This public accountability, along with
the financial incentives provided by the VAWA I, has encouraged the enactment of state anti-violence legislation across the country.
Although there is still room for improvement, the realization that domestic violence affects society as a whole, and that there is a
need for a solution rather than a quick fix, has spawned incredible growth in the attack on domestic violence. States have
acknowledged the need for women to feel protected by the system, both when they first leave the abuser, as
well as during the period when they are seeking justice. Accordingly, every state has enacted civil protection
order statutes and provisions for emergency ex-parte relief for victims attempting to leave an alleged
abuser. These protection orders demand that the alleged abuser stay away from the victim, her home, her
workplace, and her family, until the outcome of the case or for a specific duration. The protection statutes also
provide support for the victim in her attempt to regain control of her life, providing that the state will charge the abuser criminally if
he violates the order.
The limit on the state legislative development has been the legislatures' inability to enforce the legislation; this remains the duty of
the police and the court system. In this situation, the state legislatures have been proactive, creating legislation that mandates or
encourages the state court systems, as well as local jurisdictions, to enforce protective legislation. Since 1994, all fifty states
have enacted some sort of domestic violence arrest policy, thereby limiting the amount of discretion available to the
police. These policies, coupled with further educational programs and domestic violence training for both
law enforcement and court personnel, have begun to make a dramatic difference in the statistics concerning
domestic violence.
Statistics support the conclusion that the state legislatures have begun to respond to the problem of
domestic violence, addressing this very personal crime with victim-focused legislation. With the continued state
legislative fight against domestic violence, the loss of Title III does not signify the end of the fight against domestic violence. Despite
the legislative advancements, the quest for an end to the problem of domestic violence has only begun to take shape. "[A] law is only
as good as the system that delivers on its promises," thus, the states must continue to improve upon the methods of dealing with
domestic violence and those who suffer as a result. To fully comprehend the proactive stance of the states and the continued quest for
further advancement in dealing with domestic violence, it is necessary to examine the response of state law enforcement and court
personnel.
Planet Debate
98

STATES ADOPTED MANDATORY ARREST POLICIES FOR DOMESTIC VIOLENCE CASES
The days when the police responded to a domestic violence call and left without making an arrest are
over. Since 1990, over twenty-five states have enacted mandatory arrest policies in domestic violence
situations. Mandatory arrest policies dispel with police discretion, the root of the problem with the response
to domestic violence. Mandatory arrests actually help the victim, although taking away her control of the situation, because she
is not forced to make an immediate decision on whether to press charges against her abuser. These policies effectively remove
the alleged abuser from the situation and allow the victim time to think. Further, in communities with advocacy
programs, this type of policy allows an advocacy program access to the victim without the abuser's threatening presence. Besides
helping the victim in the immediate situation, mandatory arrest policies demonstrate that the states are beginning
to
recognize that domestic violence is a crime not only against the victim, but also against the state.
In a mandatory arrest jurisdiction, the police officer must arrest the suspect if there is probable cause that a domestic violence
incident occurred. These policies have resulted in an increase in domestic violence arrests. For example, in Washington, D.C., the
percentage of domestic violence arrests after the enactment of a mandatory arrest policy jumped from five to forty-one percent. An
increase in the number of arrests should correspondingly result in an increase in the number of domestic abusers punished and,
consequently, the number of victims that are effectively helped.
In a majority of states, preferred arrest policies are in place. In a preferred arrest situation, the police
officer has more discretion than in a mandatory arrest, but can still act regardless of the victim's wishes.
These policies, unlike mandatory arrests, allow the victim to have input in the outcome of the situation, however, the decision is still
ultimately left to the police. Preferential arrest statutes usually contain language from the legislature that encourages arrests in certain
situations or fact patterns. In encouraging, but not mandating, arrests, the state places its confidence in the police
officers and encourages the officers to take a more educated role in the process of handling domestic
crimes. Of course, the success of arrest policies depends on the continued training of officers in order to dispel stereotypes about
domestic violence, and instruct them on how to deal with these types of situations.
One of the most important areas where these arrest policies have begun to make a difference is in the
enforcement of civil protection orders. Enforcement of protection orders is arguably the most important
duty of the criminal justice system in combating domestic violence. Protection orders provide the victim with time
and space away from her abuser, as well as the right to stay in her home and keep her children. Protection orders were a main concern
of the VAWA I, thus, funding was made available to states that adopted more stringent arrest policies and made a concentrated effort
to enforce protection orders. Through enacting these proactive policies and coupling them with domestic
violence training for police officers, the states have attempted to respond to Congress' concerns with
varying degrees of success.
Planet Debate
99

STATES HAVE ADOPTED NO-DROP POLICIES TO ENSURE PROSECUTION OF DOMESTIC
VIOLENCE CASES
Along with the statutes enacted to increase arrests, state legislatures responded to the incentives under the VAWA I
by implementing guidelines for prosecutors who deal with domestic violence cases. These policies
represented vast improvements over the automatic drop policies concerning domestic violence that had
been in place in most states. Automatic drop policies allowed the abuser to coerce the victim into dropping
the charges, and effectively allowed the abuser to control the legal system that should have been punishing the
offender. Acknowledging this control and the effect it has on a victim's rights, states have responded by enacting policies
such as no-drop prosecution and mandatory participation policies for victims.
No-drop prosecution policies dictate that once charges are brought, the case will proceed regardless of the
victim's wishes, "as long as sufficient evidence exists to prove criminal conduct." Similar to mandatory arrests,
no-drop prosecution takes the decision out of the hands of the victim, and some claim it fails to allow victim input and perpetuates her
status as a victim. Although this is a valid concern, the increase in domestic violence abusers who have been punished
as a result of the no-drop policies and the corresponding drop in intimate murders support the continued use
of this proactive policy. This policy encourages the prosecutor to treat the case as if there was no
complaining witness, effectively increasing the chances that evidence and other witnesses will be collected,
thereby increasing the possibility of a conviction.
Although many women's groups disagree with this type of policy, it is achieving results in the area of domestic
violence. In developing effective prosecutorial policies concerning domestic violence, there is no way to satisfy all parties. Despite
the arguments against it, "no-drop prosecution policies have moved domestic violence criminal prosecutions to a
position of rough parity with crimes perpetrated by non-intimates and have greatly expanded the tools
available to battered women seeking to escape abuse." This statement is true because in no other area of criminal
law does a state defer its decision of whether to prosecute a defendant to the victim. Accordingly, for
domestic violence to be treated as a serious crime, it must be treated the same as any other crime against the
state.
Planet Debate
100

STATES ARE EFFECTIVE AT DEALING WITH DOMESTIC VIOLENCE PROTECTION
ORDERS, CIVIL SUITS, AND INJUNCTIONS ARE ALL PROVIDED
William G. Bassler, Judge, United States District Court, District of New Jersey, 1996
[FEDERALIZATION OF DOMESTIC VIOLENCE: AN EXERCISE IN COOPERATIVE
FEDERALISM OR A MISALLOCATION OF FEDERAL JUDICIAL RESOURCES? 48 Rutgers L. Rev.
1139, SUMMER], p. 1162-4
Although as recently as 1974 there were no effective legal remedies and little public acknowledgement that family violence was a
serious problem, the battered women's movement has brought domestic violence to the attention of the
public, leading to many legal reforms. There are now state codes for civil protection orders, family
violence and custody, mediation of custody disputes, civil damages for family violence, social and health
services, and arrest and law enforcement . By 1988, all fifty states had enacted laws to provide civil and
criminal remedies for victims of family violence .
Research has established that a woman is at her greatest risk when separating from her abuser. Statutes providing for
protection orders have proven effective in providing safety and autonomy for abused women and children
and constraining and deterring abusing men. The majority of state codes impose no time limit within which an abused
person must file after an abusive incident. Except for Delaware and South Carolina, all jurisdictions permit an abused person to
obtain an ex parte temporary order of protection. Protection order codes authorize orders restraining the abuser from future acts of
domestic violence, granting exclusive possession of the victim's residence to the victim, disallowing contact with the victim, awarding
temporary custody to the non-abusing parent, and granting spousal or child support. Forty-nine states allow injunctions
against further violence, while fifty permit exclusive use of a residence or eviction of a perpetrator from the
victim's household. Forty-three jurisdictions authorize awards of custody or visitation, and twenty-three authorize the payment
of child or spousal support in protection orders.
Half of state codes award attorneys fees and/or costs, although only about one-quarter permit further monetary compensation,
such as out-of-pocket expenses, replacement of destroyed property, relocation expenses and/or mortgage or rental payments. Statutes
in more than forty jurisdictions allow the court to order any additional appropriate relief.
Violation of a civil protection order constitutes a misdemeanor in thirty-five states. Contempt is an alternative
charge that may be lodged against the violator in many states, with civil contempt available in thirty-one jurisdictions, and criminal
contempt available in twenty-one. Although some states provide for a minimum jail sentence of forty-eight hours to five days
imprisonment, most statutes give discretion to the court on sentencing. Generally, these statutes set sentences to a maximum of six
months or one year and a maximum fine of $1,000.
Planet Debate
101

FOCUS ONLY ON IMPEDIMENTS TO USING RESOURCES IGNORES THE MANY
IMMIGRANT WOMEN WHO DO LOOK TO THE SYSTEM FOR ASSISTANCE
Hoan N. Bui, Professor Sociology- University of Tennessee @ Knoxville, 2004, In the Adopted Land:
Abused Immigrant Women and the Criminal Justice System, p. 6-7
While it is important to understand why immigrant women do not seek help from outside the family, by focusing only on
impediments to immigrant womens efforts to reach out, we ignore the fact that many immigrant women
have contacted agencies in the mainstream society for help and that many other immigrant women have
been charged with domestic offenses under new criminal justice policies. A lack of research on these
women limits our knowledge about womens experiences with criminal justice policies on domestic
violence. The number of immigrants coming to the United States has increased substantially over the past three decades as a result
of the 1965 Immigration Act that dismantled the national quota system and opened the door to renewed migration to this country. For
this reason, it is important to understand how criminal justice interventions can become a resource for abused
immigrant women to deal with domestic abuse; how they can respond to the needs of abused immigrant
women for personal safety and improved family relationships; and when arrests, prosecutions and
restraining orders are effective in protecting the safety of the immigrant women.
EVEN IF SOME WOMEN DONT WANT TO FOLLOW THROUGH ON LAW ENFORCEMENT
REMEDIES THEY ARE EFFECTIVE IN REDUCING ABUSE FOR SOME WOMEN
Abused Immigrant Women and the Criminal Justice System, p. 98-9
Arrests, prosecutions, and restraining orders have been considered new resources for abused women to
combat domestic abuse; but the effects of these interventions appear to be conditioned by the ability of
women to actually invoke the authority of criminal justice agencies to empower themselves, influence their
husbands/partners behavior, and bargain for their safety. Although many abused women have called the police to report abuse, not
all of them want to rely on the police to arrest and press charges against their husbands/partners. It is not uncommon to see
abused women request that charges against their abusers be dropped. Emotional dependency, fear of
reprisal, as well as economic and cultural constraints often prevent women from following through the
criminal justice process or using the full force of legal enforcement to empower themselves to fight against
domestic abuse. This is illustrated by the experiences of Tram, Phuong, and Quyen discussed in previous sections. On the
other hand, when abusive men have a stake in conformity and are aware that their wives/partners have the
assertiveness, independence, and access to invoke the authority of the law to combat domestic abuse,
criminal justice interventions seem to have a stronger impact on womens safety in the long run. Lien
experienced serious abuse by her husband both in Vietnam and in the United States, but the abused
decreased and became less frequent after police interventions.
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102
Gender-Based Excuses Increase Subordination

EXCUSES TAILORED TOWARD WOMEN ENTRENCH WOMENS SUBJUGATION
This tension between practice and theory poses a dilemma for feminists, some of whom have remarked on the harshness with which
criminal courts at times respond to women offenders. Some scholars have argued that this harsh treatment arises from
a conviction that the woman who offends has transgressed twice; by disobeying the commands of the
criminal law, she also has violated society's expectations for appropriate conduct from one of her gender.
Aware of this bias and the risks it poses for her client, a feminist practitioner, even were she not dedicated to winning for
ethical reasons or for its own sake, cannot afford to ignore existing excuses or neglect old arguments for new ones,
such as those provided by the battered woman syndrome defense. But leniency holds special perils for
women as well, and it is with those perils that this Article is concerned. When we are able to convince decisionmakers, who may be
inclined to punish us harshly on grounds they would not hold against men, that we should be excused, we rightly feel that our practice
has succeeded. But if, as is claimed, the reigning theory of responsibility declares that an excused offender is less
than a full human being, we must consider whether the practice of excusing women is bringing to law a
feminist theory of responsibility or whether it is exploiting and, thereby, reproducing norms that support the conditions of our
subjugation.
FEMINIST EMBRACE OF EXCUSE DEFENSES ENTRENCHES NEGATIVE GENDER

HIERARCHIES
For the most part, feminists have not joined these spirited exchanges over the manner in which excuse structures our theory of
criminal responsibility. Feminist practitioners and scholars seem unimpressed with the theoretical claims made by the
academy on behalf of the responsible actor, and, therefore, they doubt that women are harmed by the finding of
irresponsibility that their successful excuse defenses incur. However, when we situate the dubious moral status occupied
by the excused actor - that creature who is more like a dog or a rock than a human being - within our long tradition of excusing
women, the need to examine that theoretical construct takes on urgency.
I believe that the model of responsibility, in which the excused defendant is foregrounded as the logical and structural foil for the
responsible actor, has profound implications for the construction of gender. By relying almost exclusively on the excuses
to give shape to the responsible actor, the academy has committed us to a negative definition of that crucial
concept; as Hart remarked, an actor is declared responsible if he breaks the law when none of the excusing conditions are present.
Indeed, the academy generally insists that the law must embrace this negative definition: by refusing to prescribe virtuous character
traits for or impose affirmative duties on actors who would be found law-abiding, the law is said to secure maximum
autonomy to pursue individual ends. Yet, if the ideal model of the responsible actor emerges only in opposition to that which
he is not, namely, the excused actor, then we must consider how this model constructs gender relationships when we
notice that the criminal law steadfastly has doubted that women are capable of responsible conduct and,
therefore, has excused them in circumstances where men would be punished. In particular, if the criminal law
identifies those actors who possess the capacity for responsibility by pointing at undesirable personal
characteristics that excused actors share and responsible actors therefore should shun - and if the
undesirable characteristics are those that the law most closely associates with and that have been
internalized by women - then the model of responsibility reinforces the familiar social understanding of
gender as a bipolar, hierarchical arrangement.
Pushing academic or theoretical objections aside, the criminal practitioner understandably may conclude that any costs an excuse
entails, such as lingering skepticism over the accused's competence to manage her affairs, are insignificant when measured against
those inflicted by a guilty verdict. But if women achieve leniency by exploiting, rather than challenging and
revising, the existing categories of excuse, they not only leave the theory of criminal responsibility intact,
they also leave intact the competing life stories that the theory constructs and makes available for excused
actors and responsible human beings to experience. The experience of the responsible actor is one that
resonates powerfully in our culture and, by securing excuse, women assure that it is one that will continue
to be denied to them.
Planet Debate
103
Gender-Based Excuses Increase Subordination

DESIGNING EXCUSES THAT PRIMARILY BENEFIT WOMEN REINFORCE GENDER
HIERARCHIES
Review, 82 Calif. L. Rev. 1, p. 53
Sensitive to the material plight of women who endure violence in their homes, Stephen Schulhofer has proposed that the
battered woman syndrome defense should be recognized in those cases where the jury is persuaded that the
woman's financial situation truly was dire, that is, where she had literally no place else to go . So limited, and
standing alone, the defense would not necessarily be misogynist , at least if it were made clear that these external
barriers were erected by culture, rather than by the woman's natural inferior capacity to support herself. But
when placed alongside the traditional model of responsibility, which steadfastly denies men an excuse
based on their disadvantaged social and economic circumstances, this accommodation for women
reinforces the understanding that women cannot overcome barriers to lawful conduct, barriers that men can
and do surmount. Therefore, even if the defense were limited along the lines that Schulhofer suggests, it still would
reinforce the understanding that a woman, unlike a man, can survive only if she receives special aid, either
from the individual man to whom she must cling for sustenance or from officials of the state to whom she
turns when the man who is responsible for her fails to provide support.
Planet Debate
104
Battered Woman Syndrome is an Excuse Defense

BATTERED WOMAN SYNDROME IS AN EXCUSE NOT JUSTIFICATION -- DEFENSE
Of course, Schulhofer's proposal that the defense be available only in cases where the typical person would have believed that escape
from the abuser was impossible bears little resemblance to the much broader defense that battered women's defenders insistently have
offered and courts enthusiastically have received. Most significantly, the defense never has relied solely, or even primarily, on
tangible, external barriers that may confine women within their marriages, abusive or otherwise. Even when the defense was in its
infancy, the accused woman was not always able to offer proof of any significant external obstacles to her escape. However, the
absence of economic or other external obstacles to separation is not fatal to the defense, because battered women are not imprisoned
with their mates by tangible bars but are bound to them by an internal, psychological mechanism. The heart of this defense is a
psychological diagnosis of battered women that construes them as suffering from various emotional,
cognitive, and behavioral deficits, which negatively influence [them] from leaving a relationship after the
battering occurs. The central testimony for the defense is not provided by the accused woman, but by the
expert witness, usually a psychologist, who claims that the battering caused the woman to succumb to a mental
health disorder[] called learned helplessness, which made it impossible for her to contemplate leaving her violent mate
even though other people perceived that she could, and should, have separated from him. She may have avenues of escape from the
marriage, short of homicide, to which others would turn, but the battered woman's dysfunctional mental condition leaves her unable to
act to take advantage of them.
Therefore, notwithstanding their contrary protests , the battered women's defenders have not structured this new
defense as a justification, nor have they made any sustained effort to challenge the theoretical categories of
justification and excuse and the moral and practical discriminations that those categories make between the
individual actors who are assigned to them. The strategy of the battered women's defenders has not been to ask the jurors to
find, as under a self-defense claim, that the woman's act of killing was justified because the typical person also would have believed
that deadly force was necessary under the circumstances. Rather, the defense concedes that the typical person would
have chosen to terminate the relationship long before the battering escalated to the point where the use of
deadly force became necessary. Then, carefully tracking the traditional requirements of excuse, the defense
goes on to ask the jurors to determine that the accused woman suffered from cognitive and volitional
disabilities that deprived her of the capacity to choose lawful conduct (that is, leaving her spouse).
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Battered Womans Syndrome Perpetuates Negative

Stereotypes
BATTERED WOMAN SYNDROME DEFENSE ENTRENCHES NEGATIVE STEREOTYPES OF
WOMEN INTO THE CRIMINAL JUSTICE SYSTEM
While many feminist scholars conclude that the courts cannot justly blame an accused woman without considering abuse that
she endured at the hands of her husband, several others have expressed uneasiness with the battered woman syndrome
defense because it institutionalizes within the criminal law negative stereotypes of women . I agree with this
criticism; in particular, the defense is objectionable because it relieves the accused woman of the stigma and
pain of criminal punishment only if she embraces another kind of stigma and pain: she must advance an
interpretation of her own activity that labels it the irrational product of a mental health disorder .
BATTERED WOMAN SYNDROME DEFENSE INVESTS MEN WITH THE AUTHORITY TO
GOVERN THEIR IRRESPONSIBLE WIVES, ENTRENCHES HIERARCHY IN MARRIAGE
However, this criticism leaves off precisely where the most profound feminist objection to the defense should begin. It is my thesis
that the existing feminist critique of the battered woman syndrome defense is inadequate because the negative implications for
women go far beyond the reinforcement of particular aspects of stereotyped gender roles that some of us may
wish to shed. None of those who advocate, or, for that matter, criticize, adoption of the battered woman syndrome defense has noticed
that, for many centuries, the criminal law has been content to excuse women for criminal misconduct on the
ground that they cannot be expected to, and, indeed, should not, resist the influence exerted by their
husbands. No similar excuse has ever been afforded to men; to the contrary, the criminal law consistently has demanded
that men withstand any pressures in their lives that compel them to commit crimes, including pressures
exerted by their spouses. In this way, the theory of criminal responsibility has participated in the construction
of marriage and, indeed, of gender, as a hierarchical relationship. By construing wives as incapable of
choosing lawful conduct when faced with unlawful influence from their spouses, the theory invests men
with the authority to govern both themselves and their irresponsible wives.
The battered woman syndrome defense rests on and reaffirms this invidious understanding of women's
incapacity for rational self-control. For the sake of clarity, I must emphasize that my argument is not that the battered woman
syndrome defense is illegitimate merely because it fails to hold women to the same demanding standard against which men are
measured. Rather, my claim is that, by denying that women are capable of abiding by criminal prohibitions, in
circumstances said to afflict many women at some point during their lives, the defense denies that women
have the same capacity for self-governance that is attributed to men, and, if the theory of responsibility operates in
practice as its proponents claim, the defense thereby exposes women to forms of interference against which men are
safe.
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Battered Womans Syndrome Perpetuates Negative Stereotypes

BATTERED WOMANS SYNDROME DEFENSE RESTS ON AND PERPETUATES
PATRIARCHAL ASSUMPTIONS
The existing feminist critique of the battered woman syndrome defense is inadequate in another significant respect. The scholars who
worry that the defense may reinforce negative stereotypes of women have assigned the problem to the manner in which the courts are
interpreting the defense, rather than to the values embraced by the defense itself. Proponents of the defense assert that the expert
psychological testimony supporting the defense is not offered to prove that battered women are mentally ill or psychologically
incompetent, as the language of many appellate opinions suggests, but to expose the underlying conditions of gender inequality that
cause women's criminal misconduct and to refute sexist assumptions that blame women for falling victim to domestic violence. While
it would not be surprising to discover that the courts have exacerbated the most negative aspects of the battered woman syndrome
defense, I do not agree with the commentators who assign to the courts and to defense lawyers the primary fault for the failures of this
defense. The defense itself defines the woman as a collection of mental symptoms, motivational deficits, and
behavioral abnormalities; indeed, the fundamental premise of the defense is that women lack the
psychological capacity to choose lawful means to extricate themselves from abusive mates.
I advance this conclusion with some reluctance because the defense was designed by practitioners who believed that they were
bringing to the criminal law a feminist perspective on the way in which women are affected by and respond to domestic violence.
Therefore, I emphasize here that the failures of the battered woman syndrome defense really are not, contrary to some
recent suggestions, the product of feminism. Rather, the defense is the offspring of the patriarchal assumptions
from which the discipline of psychology, as well as law, was constructed . That some feminists initially endorsed the
defense underscores the pressing need to examine and revise the epistemological premises of the disciplines to which feminist legal
scholars and practitioners turn for assistance in repairing the law's partial understandings of gender.
In Part I of this Article, I describe the normative theory of personal responsibility for conduct that is embraced by the criminal law, and
I explore the criminal academy's insistence that efforts to relax that demanding standard imperil our cherished autonomy and freedom
from official interference. However, Part II of the paper establishes that, for centuries, the criminal law has doubted that women
possess the same capacity for responsible conduct as men do. In this Part, I provide a partial genealogy of the battered woman
syndrome defense; I describe a special excuse from criminal liability that the law afforded to married women, which was founded on
women's incapacity for rational self-governance. In Part III, I undertake to show that the battered woman syndrome theory
recapitulates these same misogynist assumptions about women's helplessness to govern their own lives , and I
trace how the feminist practice that gave rise to the battered woman syndrome defense unintentionally
endorsed the patriarchal values that have informed the criminal law's treatment of women for at least the
past six centuries.
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BATTERED WOMAN SYNDROME DEFENSE COUNTERPRODUCTIVE IN ADDRESSING
MYSOGINIST STEREOTYPES
The first set of such pressures were the unstated cultural assumptions concerning appropriate female (and, therefore,
male) conduct that jurors would rely on when deliberating over the woman's guilt . For example, jurors were
thought to be reluctant to find that a woman's use of deadly force against her husband was reasonable since
such conduct violated society's most basic prescriptions for wifely behavior. Even if they managed to
persuade the jury that the woman killed only to protect herself from a brutal beating, defense lawyers were
concerned that the jurors would believe that it nonetheless was unreasonable for abused women to use
deadly force because they were masochists who found the abuse pleasurable or because they provoked
male violence and deserved the abuse that their conduct incited.
The second set of pressures exerted by gender stereotypes were those embodied in the law itself. That is, the jury would be instructed
to apply legal definitions of what constitutes a reasonable perception of and response to a serious threat of harm that were partial to
male values and experiences.
Accordingly, advocates designed the battered woman syndrome defense ostensibly to refute a variety of
misogynist stereotypes and to establish that the woman's lethal action was reasonable. Regrettably, the
defense achieves neither of these objectives. To the contrary, the defense concedes that the woman's conduct
was unreasonable, but then excuses her from criminal liability if she can prove that she was a passive,
obedient wife whose choices were determined, not by her own exercise of will, but by the superior will of
her husband. Far worse, because the defense is designed to accommodate women's special psychological inclination for submission
to men, it requires accused women to embrace precisely the same insulting stereotypes the defense was
supposed to explode, and it endorses the assumption that all women are incapable of the rational selfgovernance exercised by men.
LEARNED HELPLESSNESS AS A JUSTIFICATION FOR KILLING AN ABUSER PROMOTES
NEGATIVE STEREOTYPES OF WOMEN
Choice and Blame, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 525, p. footnote
A battered woman who kills in a "nonconfrontational" situation (i.e., a situation in which the decedent did not pose an
imminent threat of death or serious bodily injury to the defendant) may make two quite distinct claims of reasonableness .
(Contrary to popular perceptions, only about 20% of the situations in which the defendant kills her abusive spouse can be
characterized as "nonconfrontational"; in most cases the defendant was actually under attack by her abusive spouse when she resorted
to deadly defensive force. Holly Maguigan, Battered Women and SelfDefense: Myths and Misconceptions in Current Reform
Proposals, 140 U. PA. L. REV. 379, 379 (1991)). The first claim maintains that she should be excused for errors in
judgment attributable to the psychological disorders induced by her plight. The second claim maintains that
her conduct was rational, and hence justified, in view of the objective obstacles that she faced; that is, she
was justified in killing her batterer in a nonconfrontational situation in the same way that a hostage would
be justified in killing the armed guard who inadvertently drops off to sleep.
Professor Elizabeth Schneider points out that expert testimony on battered woman syndrome may address both of these claims.
Expert testimony about "learned helplessness" and the psychological disorders induced by the abusive
relationship taps an excuse theory of self-defense. In contrast, expert testimony about the objective obstacles to leavingincluding "separation assault" (the often lethal escalation in violence that many women suffer when trying to leave a battering spouse)
and the police's and courts' failure to protect women from ongoing abuse-suggests that the defendant's responses were rational and
perhaps justified. See Schneider, supra note 2, at 20203; see also Mahoney, supra note 7, at 80-82 (discussing how testimony on
separation assault may sometimes support the excuse-based claim by explaining why the woman would stay in the battering
relationship long enough to develop "learned helplessness"). Some feminists have cautiously criticized the learned
helplessness element of battered woman syndrome for its tendency to promote stereotypes of women as
passive, submissive, helpless, and irrational. Id. at 37-43; Schneider, supra note 2, at 207 & n.68; Elizabeth M. Schneider,
Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense, 15 HARV. C.R.-C.L. L. REV. 623 (1980).
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BATTERED WOMAN SYNDROME DEFENSE REINFORCES NEGATIVE POWER
HIERARCHIES WOMEN WHO DONT FIT THE MODEL EXACTLY ARE PUNISHED
By demanding this response from the prosecution, the battered woman syndrome defense vigorously reinforces the
hierarchical allocation of power within marriage that supported the marital coercion doctrine, and it
appropriates for the state the right to chastise recalcitrant wives formerly wielded by individual husbands .
Two women may have endured the same amount of pain, felt the same amount of desperation, or
committed the same misconduct; but when they come before the criminal court, the woman who can be
shown to have a taste for independence is the one who will be condemned and punished. As evidence of the
woman's criminal independence, the prosecution cites the same kinds of disrespectful conduct towards her
husband that men themselves have invoked over the years as provoking them to beat their wives. Far from
providing a feminist understanding of the dynamics of a violent marriage, the defense assures that the state
will continue to identify appropriate female (and, therefore, male) conduct by relying on the patriarchal
perspective that construed wife beating, not as unjustified and painful abuse, but as a necessary and helpful
corrective for disobedient wives.
This feature of the battered woman syndrome defense is most objectionable if we believe that criminal
punishment acts to deter conduct that the community finds abhorrent. The defense discourages wives from
resisting their subordination. Women who manifest the capacity for independence are punished, while those
who prove that their husbands controlled their behavior are excused. The defense not only instructs women
that independence from our husbands is evidence of our criminality, it also advises that we are incapable of
acting on our own to leave violent marriages; instead, we require the assistance of mental health
professionals, who must, as Lenore Walker puts it, show us the way out repeatedly before change is possible. In the vision that
Walker conveys to the criminal courts, women are the alterable, predictable, curable or manipulable things, which the defenders of the
model of responsibility insist men are not. Thus, the battered woman syndrome defense reinforces an ideology that
creates for women a double-bind even more damaging than that posed by the marital coercion doctrine: the
new defense continues to portray the independent wife as evil, deserving condemnation and blame, and the
new defense continues to recognize the submissive wife as good and to reward her with the familiar
patronizing sympathy; but, additionally, the new defense recommends that she undergo a course of therapy
for her psychological disorders.
BATTERED WOMENS SYNDROME DEFENSE PERPETUATES NEGATIVE STEREOTYPES
Before turning to an analysis of clemency efforts on behalf of battered women imprisoned for killing their abusers, it is important to
note that there is substantial disagreement over the judicial and legislative approaches described above. The debate involves feminist
theorists and advocates who worry that a "battered woman defense" ultimately would work to harm women .
In particular, many commentators are troubled by the learned helplessness component of BWS, which depicts the
battered woman as weak and emotionally damaged. Expert testimony focused on helplessness may reinforce the same
sex-based stereotypes that BWS was designed to counteract. Testimony that depicts a woman as too emotionally
disabled to leave the relationship, if not carefully framed, may suggest that she was far too impaired to act
reasonably. Ultimately, judges and juries may interpret BWS merely as "a new and excusable form of
female irrationality."
In addition, the "battered woman" depicted by BWS may not represent many defendants. Put bluntly, explanations of passivity based
on learned helplessness do not mesh well with the act of killing. As Professor Susan Estrich has noted, " women who arm
themselves and succeed in killing their husbands are, by definition, hardly the 'helpless' creatures" BWS
depicts. Battered women are caught between conflicting stereotypes: a woman must appear helpless in
order to invoke BWS, yet the prosecutor may argue that her passivity indicated unreasonableness -- or,
even worse, acquiescence in the abuse. Nor does the syndrome fit the battered woman who has a successful career and does
not appear to be "dependent" on her mate or unable to cope with adversity in her professional life. As Professor Maguigan has noted,
"the creation of a generalized model of the battered woman, to say nothing of the battered woman who
kills, invites courts to prevent the fair trials of women who are not 'good' battered women."
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BATTERED WOMENS DEFENSE PERPETUATES NEGATIVE STEREOTYPES
Am U. J. Gender & L. 141, p. 146
A final problem with BWS is that, like self-defense law, which generally is not applicable to battered women, BWS excludes
those women who do not fit the stereotype of a battered woman. Moreover, it is argued that BWS perpetuates
images of women as helpless, passive or emotionally disturbed. Ironically, while BWS should emphasize the
reasonableness of a woman's behavior, it actually connotes incapacity and insanity. Thus, BWS may be available
only for women who either fit the stereotype of the battered woman or are willing to portray themselves as insane.
BATTERED WOMENS SYNDROME ARGUMENTS USED TO JUSTIFY PUNISHING

PEOPLE WHO KILL THEIR ABUSERS
Review, 55 Kan. L. Rev. 269, p. 306-7
Will punishment rehabilitate Dixie Shanahan? That question assumes that Ms. Shanahan is somehow in
need of rehabilitation, an assumption based on the notion of criminals as diseased rather than depraved. While the
rehabilitation justification for punishment has fallen out of vogue in recent years, legal doctrines developed specifically to
protect battered women could, in fact, inadvertently provide support for the idea that battered women need
rehabilitation.
Recognizing that the failure of courts to admit evidence of battering prevented them from presenting persuasive self-defense cases,
advocates for battered women fought to have this evidence admitted in the trials of battered women who killed. Experts were
permitted to testify to the effects battering has on women and how that battering created the context for the actions taken by battered
women who killed. This evidence on the effects of domestic violence has come to be known as "battered woman syndrome." As
Elizabeth Schneider notes, "Because the term is frequently used as shorthand for "evidence of a battering relationship' by judges,
legislators, and legal scholars, it is not clear in any particular context what it refers to." What it suggests, however, is that all battered
women suffer from some disease or syndrome which can be cured. Schneider argues that "because "battered woman
syndrome' sounds like a form of mental disease or defect, lawyers relying on this framework are more
likely to view the case through the lens of an impaired mental state." The term "implies that [the battered
woman] is limited because of her weakness and her problems." Judges and juries hearing such evidence may make
similar assumptions, triggering the rehabilitation justification for punishment: punishment is appropriate in these cases because the
battered woman suffers from a condition that must be cured before she can safely resume her place in society.
The problem with this rationale, of course, is that the term "battered woman syndrome" has been horribly
misconstrued. While some battered women are mentally ill, the condition of being battered does not, in and
of itself, constitute a mental illness or defect. A battered woman who kills cannot be cured of being a
battered woman through punishment - nor does she need to be.
Planet Debate
110

BATTERED WOMAN SYNDROME IS BAD SOCIAL POLICY GROUNDED IN NEGATIVE
STEREOTYPES OF WOMEN AS HELPLESS
Eugene R. Milhizer, Associate Professor of Law, Ave Maria School of Law, 2004, Justification and
Excuse: What They Were, What They Are, and What They Ought to Be, St. Johns Law Review, 78 St.
John's L. Rev. 725, p. 837-8
Given all of the problems with treating BWS as a justification defense, aligning it under excuse seems more reasonable. Indeed,
BWS is essentially premised upon an understanding of battered women as disabled actors , which sounds
remarkably like an excuse theory for exculpation. Most BWS proponents, however, reject this path. The resistance seems largely
attributable to the feminist criticisms of actor-centered arguments, and what these arguments imply about women generally. As
Professor Anne Coughlin explains:
By securing leniency on the ground that we are predisposed to losing our power of rational choice, the
battered woman syndrome excuse relinquishes to men, acting either individually as husbands or officially as
representatives of the state, the authority to make, or, at least, superintend, our choices for us. The excuse thereby
withholds from women the basic life satisfactions that the capacity for responsibility is said to secure . If our
misconduct incurs not blame for our evil choices, but pity for our psychological infirmity, then our good
works will be characterized, not as the product of our own achievements and willings, but as the successful
work of the expert therapists whose "cognitive restructuring procedures' overcame the effects of our mental
disabilities.
The fears of Professor Coughlin and others are clear - any excuse available only to women, because they are women,
enfeebles women, and thus in her words "institutionalizes negative stereotypes of women." It is irrelevant to many
BWS proponents whether the excuse theory fits - it is bad social policy, albeit for a good social cause, and thus is
unacceptable. This leaves many BWS supporters face-to-face with imponderable dissonance. On the one hand, they want to argue
that the devastating effects of domestic abuse cause women to acquire the "learned helplessness" of BWS, which supports holding
them to a different, lesser, standard of conduct. On the other hand, they wish to assert that battered women are justified in killing their
batterers and do not suffer any mental impairment or disability. However, the first proposition argues against the second, and vice
versa, leaving BWS theorists with the choice of either modifying their theory or endorsing a paradoxical hybrid of excuse and
justification.
EXPERT TESTIMONY ON BATTERED WOMANS SYNDROME COUNTERPRODUCTIVE

FOR MANY WOMEN WHO DONT MEET THE EXACT STEREOTYPE
The increasing use of expert testimony on battered woman syndrome to address the problem of battered
women who kill has actually resulted in some women being harmed and their legal options restricted . The
intense focus on battered woman syndrome has created a "paradigmatic battered woman" who embodies all of the
characteristics typically associated with battered women. Characteristics of the stereotypical battered women include
never previously fighting back, never attempting to leave the batterer, and never calling the police or
notifying other authorities. Of course, it is practically impossible for any one battered woman to fit perfectly
into the stereotype of a battered woman, but courts have created a "rigidly-defined and narrowly-applied
definition," excluding many women who may suffer from the syndrome. "Some courts seem to treat battered woman
syndrome as a standard to which all battered women must conform rather than as evidence that illuminates the defendant's behavior
and perceptions." Women who do not fit into the exact stereotype of a battered woman may not receive expert
testimony or a jury instruction on self-defense at trial.
Courts may restrict the use of expert testimony on battered woman syndrome to those women who fit the strict paradigm of the
battered woman. This restriction can create a catch-22 for some battered women. For example,
if the defendant has tried to resist in the past, the court accepts this as evidence that rebuts her status as a battered woman. On the other
hand, if the defendant has never attempted to fight back, the prosecution argues that the defendant did not act as a "reasonable man."
In addition, courts may define battered woman so strictly that near irrelevant characteristics may exclude
certain battered women from the definition, denying them expert testimony, a self-defense claim, or both .
One characteristic that prosecutors may utilize to exclude a battered woman from fitting into the paradigmatic battered woman
stereotype is the economic status of the woman.
Planet Debate
111

ABUSE EXCUSE PERPETUATES NEGATIVE STEREOTYPES OF WOMEN
Alan M. Dershowitz, Law Professor-Harvard, 1994, The Abuse Excuse: and other cop-outs, sob stories,
and evasions of responsibility, p. 30
Another serious problem with the abuse excuseand other excuses that are gender- or race-specificis that it sends a
dangerous double message of irresponsibility, especially about women. After all, if women who have been
abused are not responsible for their violence, then does it not follow that such women are not irresponsible
and thus untrustworthy? Such a generalization if accepted would contribute a major setback for abused
women, and for women in general. It would confirm the sexist stereotype of the woman out of control.
Such a generalization would also be an insult to the thousands of abused women who obey the law who
have not engaged in violence.
Planet Debate
112
Victimization Impacts
DOMESTIC VIOLENCE DISCOURSE INCREASES CONSTRUCTION OF WOMEN AS
VICTIMS
Marilyn French, feminist philosopher and author, PhD in literature-Harvard, 1992, The War Against
Women, p. 190
Susan Schechter, who wrote a historical account of the movement to aid women whose men beat them, explained that in seeking
funding from organizations willing to help the needy, activists found it politic to emphasize womens
victimization and consequent psychosocial problems. By doing so, they unintentionally conferred on
battered women the permanent label of helpless victim and helped generate a mental health profession
claiming expertise in family violence. Schechter believes these professionals watered down their language
and shifted their focus away from battered women and battering men to domestic violence from fear
of alienating the men involved in funding programs.
VICTIMIZATION RHETORIC UNDERMINES WOMENS EMPOWERMENT
Rhonda Copelon, Professor of Law, City University of New York, 2003, American University Journal of
Gender, Social Policy & the Law, 11 Am. U.J. Gender Soc. Pol'y & L. 865, p. 876
All of this is not to deny that the international human rights system still operates more in rhetoric than in reality. The range of
problems and contradictions that Liz discusses in her book also plague the official international human rights approaches. While it is
undeniably progress that the international system has finally recognized gender violence as a human rights matter, the remedies are
primarily state-centric. This raises, in turn, the limitations and dangers of transferring reliance for protection to, and, thereby,
enhancing, the policing power of the state. What happens to women's alternative remedies - the protective whistles used in Nicaragua
and the shaming tactics, picketing, etc., with which movement in many places, including here, began? Casting women as
victims draws attention and support, but victimization approaches can undermine rather than advance the
goal of women's empowerment. And dealing only with violence rather than with the broader underlying
social, economic, cultural and racial discrimination, as well as poverty, all of which perpetuate the
conditions for gender violence, is to focus on the tip of the iceberg.
VICTIMIZATION FRAMEWORK REDUCES VIOLENCE TO AN INDIVIDUAL PROBLEM
UNDERMINES AGENCY, EMPOWERMENT AND ABILITY TO SEE VIOLENCE AS SYSTEMIC
Hilary Astor, Law Professor University of Sydney, 1995, Public and Private: Feminist Legal Debates, ed.
Margaret Thornton, p. 189
Elizabeth Schneider has criticized the false dichotomy between victimization and agency, analyzing the problem it
creates for the battered womens movement. She quotes Susan Schecter:
the focus on victimization helps to blur the insight that the struggle for battered womens rights is linked
to the more general fight for womens liberation. When activists view battering as victimization rather than
as an aspect of oppression they have a tendency to see individual problems rather than collective ones.
Both Schneider and Schecter note the disempowering connotations of being a victim and the failure of the
category of victim to capture the complexity, strength and resilience of women who are the targets of
violence. The opposed category of agency also fails to take account of womens daily experiences of
oppression, struggle, and resistance within ongoing relationships.
Planet Debate
113
Victimization Impacts
INSTITUTIONS OTHER THAN GENDER CONSTRUCT AN IMAGE OF BATTERED WOMEN
AS HELPLESS LIMITS ABILITY OF THOSE WHO WANT TO FIGHT BACK
Abused Immigrant Women and the Criminal Justice System, p. 11
Although domestic violence occurs within the context of unbalanced power relationships, womens experiences of and
responses to violence are not solely affected by the power dynamics within the family because gendered
practices in other institutions also interfere with family life. By formulating ideals, defining morality, and establishing
policies to sustain the power of men, the state and various social, political, and religious institutions form a system
of social power that reinforces gendered practices and shapes womens behaviors and experiences . For
example, some religious institutions assign a secondary status to women, encourage women to obey their husbands and stay in family relationships, or
discourage women from testifying against their abusive husbands. The normative definition of femininity, which is based on the general inferior status of
women and emphasizes womens compliance with subordination to and accommodation of the interests and desires of men, can prevent women victims
The cultural image of women as docile and

submissive that has been used to construct the battered woman stereotype and guide mandatory arrest
practices can influence womens responses to domestic abuse. Under the dual concepts of agency and victimization,
the victim is seen as helpless and deserving of protection. As a result, women who use force to fight against
their abuser are not considered as helpless and therefore, do not fit the cultural profile of domestic violence
victims. Women who use self defense are often arrested along with their abusers because they may feel guilty for deviating
from the gender norms of womens appropriate behavior. They may also receive harsher treatment for violating the
socially-constructed image of women.
of domestic violence from taking legal actions against their intimate partners.
Planet Debate
114
Battered Womans Syndrome Grounded in Heterosexism

BATTERED WOMAN SYNDROME DISCOURSE RENDERS SAME-SEX DOMESTIC
VIOLENCE INVISIBLE
Phyllis Goldfarb, Associate Professor of Law, Boston College Law School, 1996, Describing Without
Circumscribing: Questioning the Construction of Gender in the Discourse of Intimate Violence, George
Washington Law Review, 64 Geo. Wash. L. Rev. 582, p. 627-8
Using the dominant discourse of domestic violence is unquestionably legitimate advocacy for a
commutation proceeding in a case of battered woman's self-defense . Yet embedded in this advocacy is a bias
tied to sexual orientation, since the parlance typically encompasses only heterosexual relationships and
therefore erroneously implies that intimate violence is confined to these relationships. This bias harms third
parties such as Debra, rendering her claim less cognizable in a legal forum. The rule contemplates neither the subtlety and
pervasiveness of bias, nor the possibility that legitimate advocacy can manifest bias . Therefore, it provides
negligible assistance in responding to the questions at hand. One recommendation that may offer some assistance
appears in Model Code EC 7-8. This provision underlines the desirability of lawyers discussing with their clients both the moral and
legal factors that may affect strategic choices in the conduct of a case. The provision indicates that "the decision whether to forego
legally available objectives or methods because of non-legal factors is ultimately for the client ...." Commentators have urged lawyers
to reveal to their clients the moral qualms that they feel about any particular strategies of representation, to seek their clients' guidance,
and to allow clients to participate in decisions about these strategies.
DOMESTIC VIOLENCE DISCOURSE IGNORES VIOLENCE IN SAME-SEX RELATIONSHIPS

In everyday speech, and even in most social science discourse, domestic violence , according to Ferraro (2000), is
about men beating women. Historically, women have fallen victim to batter at the hands of husbands and boyfriends who
desire to control and subordinate their partners in intimate relationships through the use of violence. This cultural narrowing of
the violence spectrum has failed to address violence in same-sex relationships.
Throughout history, the crime of intimate battery has been shrouded in secrecy and deemed a private matter. Only in recent decades
has said phenomenon been characterized as a social problem, with both social and legal institutions emphasizing a hands-off approach
to domestic violence. In the contemporary arena, according to Coleman (1990), the battered womens movement and
domestic violence theory has concentrated on heterosexual battering and the perpetration of violence by
men. Women perpetrating violence against their partners challenges traditional gender-based, socio-political theory on domestic
violence.
INVISIBILITY OF SAME-SEX DOMESTIC VIOLENCE LEAVES VICTIMS WITH NO

RESOURCES
Omaha, 2002, Self-Defense and Battered Women Who Kill: A New Framework, p. 193-4
As a result of homophobia, heterosexism, and a general lack of support from the gay community, Coleman
(1994) suggests that lesbian and gay victims are faced with discrimination, social isolation, and a lack of
available resources or social support mechanisms to deal with battery. Consequently, such victims may have
absolutely nowhere to turn for assistance in coping with the violence or the resulting feelings of
powerlessness, low self-esteem, internalized homophobia, and inferiority. Gamache (1991) even argues that this
situation may provide the very foundation for the maintenance of battering in same-sex relationships, which mirrors Ogle and Jacobs
arguments concerning the significant role of social resources in heterosexual dyads. Others have noted that the propagation of
the myth of same-sex relationships as egalitarian and devoid of violence, as well as the gay communitys
acceptance of these myths, has made social acknowledgement and efforts to address these issues almost
nonexistent.
Planet Debate
115

DISCOURSE ABOUT DOMESTIC VIOLENCE MATTERS
Phyllis Goldfarb, Associate Professor of Law, Boston College Law School, 1996, Describing Without
Circumscribing: Questioning the Construction of Gender in the Discourse of Intimate Violence, George
Washington Law Review, 64 Geo. Wash. L. Rev. 582, p. 630-1
Many men are batterers and many women their victims. This is one manifestation of a system of gender
subordination; intimate violence takes other forms as well. The relationships of lesbians and gay men are
not immune to issues of power and control, or to the violence that can erupt as a result. The conversation about
intimate violence must attend to its various contexts if both recent advances and future progress on behalf
of battered heterosexual women are to be extended to all battering victims. Rather than deepening the plight of
"non-traditional" victims of intimate violence, we should deepen our understanding of the source and scope of the problem of violence
between intimates. Our language - the way in which we talk and think about intimate violence - mirrors and
remakes the depth of our understanding.

The existence of intimate violence in gay and lesbian relationships does challenge the dominant theoretical
accounts of intimate violence that feminists have offered. It is important to appreciate, however, that it need not
challenge their viability-in-context, just their generalizability beyond their unacknowledged boundaries. We must not abandon the
theories and strategies that have been helpful to battered heterosexual women. Yet we ought to circumscribe these approaches in all
instances and, where possible, supplement them with theories and strategies responsive to the lives of battered lesbians and gay men.
Supplementing in this fashion extends the horizon of our knowledge. It is, therefore, a form of strengthening.
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Battered Womans Syndrome Grounded in and Perpetuates

Racism
STEREOTYPES GENERATED BY BATTERED WOMENS SYNDROME GROUNDED IN
RACIST ASSUMPTIONS
More insidiously, the model generally depicts only the experiences of the middle-class, white population from
which it was derived. Women of color, particularly Black women, may not fit the stereotype of the passive and
helpless battered woman. Sharon Angella Allard has argued that Black women often are portrayed in the sociological and
criminological literature as "bad" women: immoral, hostile, aggressive, and exploitable. As a consequence, a Black woman may
be seen as too strong and assertive for "learned helplessness" to be a plausible explanation for her behavior.
As Allard concludes, "not only does the theory perpetuate dominant gender role stereotypes, but it does so to the
exclusion of Black women."
STEREOTYPES OF THE PARADIGMATIC BATTERED WOMAN GROUNDED IN RACIST
ASSUMPTIONS WORK AGAINST INTERESTS OF BLACK WOMEN
Similar to the paradigmatic battered woman, the "good battered woman" theory focuses on the misuse of expert testimony on
battered woman syndrome due to prejudice. However, this theory encompasses prejudice not only against women in
general, but also particular prejudice against certain classes of women based on characteristics such as race.
The very characteristics that make up the conception of battered woman syndrome - weakness, passivity, and
fearfulness - can also be said to be those associated with the stereotype of the "good" woman. The good woman
stereotype is based on the historic stereotype of the ideal woman - that is, a passive, heterosexual, helpless,
white woman. Correspondingly, women who do not fit the stereotype of the good woman may not fit the stereotype of the battered
woman.
For example, black
women have long been stereotyped as the "bad" woman, and thus as not conforming with
the stereotype of the good battered woman. As a result, black women are less likely to benefit from admission of testimony
on battered woman syndrome. The following explanation describes this process:
Race certainly plays a major role in the cultural distinction between the "good" and "bad" woman. The
passive, gentle white woman is automatically more like the "good" fairy tale princess stereotype than a
Black woman, who as the "other" may be seen as the "bad" witch ... If a woman is perceived as being a "good"
woman, she can expect greater protection, while Black women are seen as "bad" and as deserving victims.
In addition to the perception of black women as bad women, thus not deserving of any special treatment, black
women may not

fit into the stereotype of a battered woman due to society's perception of them as possessing certain
characteristics absent from the white woman model. For example, some of the stereotypical perceptions of
black women in our society that may serve to exclude them from the traditional battered woman stereotype
include being domineering, assertive, hostile, strong, matriarchal, and emasculating.
Thus, the particular situation of women of color, especially black women, may not be adequately addressed by the substantive law
regarding battered women who kill their abusers. This inadequacy serves to heighten the importance of clemency in dealing with
battered women, as its use may serve to remedy some of the gaps in substantive law.
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FRAMING DOMESTIC VIOLENCE AS A GENDER ISSUES IGNORES IMPORTANT
INTERSECTIONALITIES OF PREJUDICE
Sarah M. Buel, Professor University of Texas Law School, 2003, American University Journal of Gender,
Social Policy & the Law, 11 Am. U.J. Gender Soc. Pol'y & L. 309, p. 311
Precisely because low income and minority victims tend to be invisible in legal, anti-racist and feminist
literature, counsel generally ignore the significant issues implicit in the intersectionality of violence,
gender, race and class. For the most part, lawyers and professors are not indolent or malicious, but rather are
apathetic because they believe such issues are inconsequential. They are then unable to comprehend the
context, nuances and complexity of domestic violence matters, to the detriment of battered and batterer
clients. It has become clear that attorney mishandling of partner abuse cases is due, in part, to the dearth of formal education on the
topic. In focusing on the pedagogy of domestic violence jurisprudence within law schools, I argue for a thorough and expanded
integration of domestic violence jurisprudence into the curricula.
VICTIM LABEL MOST LIKELY TO BE APPLIED TO POOR WOMEN AND WOMEN OF

COLOR
Hilary Astor, Law Professor University of Sydney, 1995, Public and Private: Feminist Legal Debates, ed.
Margaret Thornton, p. 189-90
Battered woman, the usual label for victim status in this area, is certainly not a label lightly accepted by middleclass women. After talking to many groups of mediators, lawyers, and counselors about mediation and violence against women, I
have been approached by numbers of women. They always preface their remarks with the comment, I have never thought of myself
as a battered woman, but They go on to tell stories of violence perpetrated against them. Martha Mahoney quotes similar
responses from the women she interviewed:
I just thought that the incidents of violence that Iin order to be a battered woman you had to be really battered. I mean, OK, I had a
couple of bad incidents, but mostly it was pretty minor, in inverted commas, violence. I didnt see myself in that category as a
battered woman at all.
First, I want you to know that I am an assertive and powerful woman, I do not fit my stereotype of a battered woman. I am telling
you this because I never thought it could happen to me.
However, rejecting the victim label also carries dangers. Martha Minnow points out that:
telling ones story as a victim story risks reducing oneself to the stereotypes of suffering. Describing
yourself as a victim has a self fulfilling and self-perpetuating feature; and yet, failing to acknowledge or
assert ones victimization leaves the harm unaddressed and the perpetrators unchallenged.
Being a victim of violence, a battered woman is therefore a label that may, perforce, be accepted by those
women who most desperately need the protections to which it will entitle them. It is most likely to be
applied, then, to women who do not have the resources to avoid it.
FEMINIST PERSPECTIVE ON DOMESTIC VIOLENCE SEEN AS THE WHITE WOMANS
VIEW DISCOUNTED AS IRRELEVANT IN MANY COMMUNITIES OF COLOR
Sarah M. Buel, Professor University of Texas Law School, 2003, American University Journal of Gender,
Social Policy & the Law, 11 Am. U.J. Gender Soc. Pol'y & L. 309, p. 323
The danger for victims of color may be exacerbated by concerns about privacy. This is not to say that white victims are not also
embarrassed by public disclosure of the abuse, for they are. It is, rather, recognition that victims of color often face what Professor
Linda Ammons has termed "the loyalty trap," which describes the inherent tensions in feeling torn by loyalty to
one's race and community versus self-protection. Privacy is also seen as a cultural more for some,
stipulating that public disclosure of family dissension only serves to reinforce negative stereotypes about
people of color. It is thus that a victim of color may feel allegiance not only to her batterer, but also to men of
color, generally. Yet some feminist scholars have refused to respect victims who opt for privacy over
safety. Legal scholar Kimberle Crenshaw explains, "Feminism has no place within communities of color ... the
issues are internally divisive, and ... they represent the migration of white women's concerns into a context
in which they are not only irrelevant but also harmful." However, other African American feminists argue that it is time
to talk publicly about the physical and sexual violence perpetrated within all communities, and suggest that the Catholic Church's
sexual abuse scandal ought to be an impetus to shed light on all of the hidden and silenced abuse, which benefits the offender to the
detriment of the victims and community. Law students, especially those who are white, are often perplexed by the privacy versus
safety dilemmas for victims of color and appear to benefit from open discourse on the topic .
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WOMEN OF COLOR MORE LIKELY TO BE SUBJECT TO CRIMINALIZED RESPONSES TO
DOMESTIC VIOLENCE THAN WHITE WOMEN
Holly Maguigan, Professor of Clinical Law, NYU, 2003, American University Journal of Gender, Social
Policy & the Law, 11 Am. U.J. Gender Soc. Pol'y & L. 427, p. 442-3
Simultaneous with the enactment of mandatory arrest policies in many jurisdictions has been a large
increase in the numbers of women arrested and charged with crimes of domestic violence, either as the sole
person arrested after an incident, or as the result of a "dual arrest" of both parties. In some areas a quarter or more
of the domestic violence arrestees are women. One view of the phenomenon is that increasing numbers of arrests are a reflection of
the extent to which women are in fact perpetrators of violence. Others argue that there is a range of explanations, among which the
least likely is that women are as violent as the arrest rates suggest. Shamita Das Dasgupta, director of Manavi, Inc., has called for
contextualized research and commented that "one of the most problematic issues currently facing the anti-domestic violence
movement is the high number of battered women being arrested on domestic violence charges." We know these things: (1) the increase
has come at the same time as the enactment and enforcement of mandatory arrest laws; and (2) the direct and collateral consequences
of criminal arrests and convictions are grave for both men and women, but often harder on children and families when the arrested
person is the woman.
In this area, too, there is strong evidence of the disparate impact of criminal justice sanctions on poor women
and women of color. One study suggests that women who do not meet dominant culture expectations of
"the good battered woman" are at greater risk for arrest; that women experience longer periods of pretrial
detention than men with comparable domestic violence charges and similar criminal records because of
their relative lack of access to resources for posting bail; that women of color and poor women get harsher
sentences than men with similar histories and convictions.
FEMINISTS APPROACH TO DOMESTIC VIOLENCE OFTEN BIASED TOWARD WHITE
WOMEN AGAINST POOR WOMEN AND WOMEN OF COLOR
Donna Coker, Professor, University of Miami School of Law, 2001, Buffalo Criminal Law Review, 4
Buff. Crim. L. R. 801, p. 811-2
This article examines domestic violence crime policy in the context of intersecting oppressive systems of race, class, and immigrant
status. I have argued elsewhere that poor women and particularly poor women of color should be the focus for
evaluating anti-domestic violence law and policies. These women are "sandwiched by their heightened
vulnerability to battering, on the one hand, and their heightened vulnerability to intrusive state control, on
the other." In essence, my argument is the reverse of the "rising tide carries all boats": Law and policy that is based on the
experiences of poor women, and especially of poor women of color, is likely to result in reforms that
benefit all battered women. But law and policy that is developed from the experiences of a generic category
"battered women," is likely to reflect the needs and experiences of more economically advantaged women
and white women, and is unlikely to meet the needs of poor women and women of color.
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MANY WAYS THAT CRIMINALIZATION FOR DOMESTIC VIOLENCE DISADVANTAGES
WOMEN OF COLOR
Donna Coker, Professor, University of Miami School of Law, 2001, Buffalo Criminal Law Review, 4
Buff. Crim. L. R. 801, p. 831-8
The first set of risks for increased state control flow from the increased risk that battered women will be arrested . When
mandatory and pro-arrest policies are adopted, more women are arrested for domestic violence. Strong
anecdotal evidence suggests that most of the women arrested are victims of battering who are acting in selfdefense or who are responding to a pattern of abuse. Arrests of battered women present serious collateral
risks that go beyond the threat of criminal punishment. For example, conviction for domestic violence can result in the
deportation of a non-citizen. Recent immigration law reform allows the Attorney General to waive deportation in the case of battered women who can
prove that they are "not the primary perpetrator of violence in the relationship" and that they were "acting in self-defense." The difficulty with this
standard is that many women who are violent in response to ongoing battering may not meet the legal requirements for self-defense in a particular
incident. For example, Cecelia Espenoza relates the story of Paula, a battered immigrant woman from Mexico, who received support from Lideras
Campensinas. Paula, determined not to take her husband's abuse any longer and, with a baseball bat in hand, told him to leave the home. He tried to
return three times. Each time, he left after Paula threatened him with the bat. In many jurisdictions, Paula's actions would render her criminally liable for
domestic violence assault and thereby subject her to mandatory arrest. Since Paula was not in immediate danger when she threatened her husband, it is
not clear that she would meet the self-defense requirements for the waiver of deportation.
In addition to immigration consequences, battered women who are arrested often lose the protection otherwise
afforded by special domestic violence legislation. For example, evidence of an arrest, even if the women are
not charged, is sufficient in many states to prevent them from benefiting from child custody laws that
disfavor a violent parent.
The second set of risks created by mandatory policy flows from the interaction of mandatory policies with
the actions of other institutions of state control. The police response may open a "Pandora's box ... of other
institutional responses." The most important such interaction is that of child protection systems. Several
changes in child protection laws and policies have increased dramatically the number of child abuse
investigations founded solely or primarily on the basis that a child's parent is the victim of intimate abuse.
Some police departments have developed policies that require officers to report to child protection services every case in which a child
is present at a domestic violence call. In addition, child protection organizations have broadened dramatically the definition of child
abuse to include residing in a home in which domestic violence takes place. Children are removed even when the violence was a onetime occurrence, and even when the children did not witness the violence The statements of rural battered women in New
York State capture the problem of the intersection between child protection and mandatory policies:
It does more damage to call the police ... The call to the police opened up so many doors. Then I had three
different services watching me and with the kids. Child protective put me at risk for losing my children;
they said, next time they'll take the kids! I always thought the police were there to help me. I would never
call them again.
He beats me and I get [Child Protective] Services dropping in on me three times a week. Meanwhile, no one is getting him help.
Like so many other forms of state intervention, child protection intervention is a double-edged sword. When a child is in danger of
serious harm, temporary removal of the child from the home may be the only safe course, but there are a number of problems with the
way in which current child welfare policy works in cases of domestic violence. Child welfare workers and courts frequently blame
battered women for their children's exposure to violence. This blame suggests that the mother could control or could avoid the
batterer's violence. In many cases, neither is true. Battering is often unpredictable: Women are beaten for "failure" to have the proper
demeanor, for "failure" to prepare the "right" meal, for "failure" to desire sex at the "right" times. Separation is no guarantee of safety.
Most of the women who are killed and most women who are seriously assaulted by an intimate are separated at the time of the attack.
Thus, separation often requires careful planning. "Despite well-documented evidence that battered women are at
greater risk of harm from their abusers during separation, the child protection system's traditional approach
has been to require battered women to leave their abusers immediately or face the loss of their children."
Separation also requires resources. Women who separate need money for new housing - first and last month
rent plus deposit, new childcare arrangements, new school enrollments, and a new job. Many women must
make these arrangements while using inadequate and unreliable public transportation. When women separate
they often require a restraining order. They must then distribute copies of the order, along with a picture of the abuser, to the children's
schools and childcare providers and to the security personnel at their work site.
The failure of child protection workers to understand the dangers of separation and the importance of
women's material resources to their safety results in a failure to provide the resources and support that
battered women most require. Women are often coerced into signing "voluntary" plans that include agreements to participate in
such services as parenting classes and battered women's support groups but are not given assistance with the resources needed to
separate safely.
In addition, child protection workers often believe stereotypes regarding battered women that make
invisible their acts of agency. They are presumed to have mental health problems that make them likely to "choose" batterers.
Frequently these stereotypes of battered women intersect with and reinforce race-and class-based stereotypes.
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120
Poor women and particularly poor African American women are far more likely to be the subject of charges
of child neglect than are other women. "In child welfare cases, where the individual is pitted against the vast power and
resources of the state, the power imbalance is extreme. And in the vast majority of cases, the fact that the parent is female, poor,
uneducated, and nonwhite, exacerbates this inherent power disparity."
Aggressive criminal intervention also threatens to increase state control of battered women who are
involved, even peripherally, in criminal activity. Battered women's criminal activity is often connected to their abuse. For
example, battering partners coerce women into engaging in crimes that involve illegal drugs or prostitution, women drugs or sex in
order to earn money to fund an escape from battering partners, and women use illegal drugs to dull the physical and emotional pain of
abuse. The danger of identification, arrest, and conviction for drug related offenses is much higher for
women of color and particularly for African American women who live in heavily policed "drug zones."
Draconian drug laws with severe mandatory minimum sentences increase dramatically the risks associated with detection. Further,
mandatory sentencing regimes make it more difficult for women to make traditional arguments about their care taking responsibilities
or their abusive partner's coercion.
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121

ANTI-DOMESTIC VIOLENCE MOVEMENT LARGELY SERVES THE NEEDS OF WHITE
WOMEN IGNORES UNIQUE NEEDS OF WOMEN OF COLOR
Nimish R. Ganatra, Lawyer, 2001, The Journal of Law in Society, The Cultural Dynamic in Domestic
Violence: Understanding the Additional Burdens Battered Immigrant Women of Color Face in the US,
Winter, 2 J.L. Socy 109, p. 129-30
The anti-domestic violence movement is largely a white women's movement . It is part of a broader women's
rights movement, a movement which historically has been racist and nativist. Contemporary feminism has been
criticized for failing to adopt a vision that speaks to American women of all races and cultures. By focusing only on gender,
the anti-domestic violence movement falls into the same trap as other feminist movements and ends up
privileging white women. White privilege allows white women to examine gendered issues such as
domestic violence from a color-blind perspective . For Asian American women, dealing with the white-centered feminist
movement has been especially difficult. Asian American women are struggling within their own communities to abolish deep-rooted
cultural beliefs regarding the subordination of women, and are additionally struggling for a place in the feminist movement.
The current language of the anti-domestic violence discussion perpetuates white-centeredness by making
race a non-issue. Most domestic violence data describes women without identifying the victim's race or
ethnicity. In our numbers-oriented society, the lack of distinct empirical data on battered women of color
marginalizes non-white domestic violence victims. One example of this marginalization is the difficulty in justifying the
funding for services targeted for battered Asian American women. By introducing race-less domestic violence statistics, the antidomestic violence movement affirms the status quo of white domination. The white centeredness is also evident in the discriminatory
policies and practices of some shelters.
VIEWING DOMESTIC VIOLENCE THROUGH A GENDER LENS IGNORES THE UNIQUE

ROLES OF RACE, CULTURE AND ETHNICITY
Abused Immigrant Women and the Criminal Justice System, p. 10
Although gender permeated all social practices, womens lives are not influenced by gender alone. Feminist scholars have
long recognized the interrelation of race, class, and gender that creates a matrix of domination and shapes womens lives. With racism, classism, and
compulsory hetereosexuality in American society, the
oppression faced by white middle-class women is not the same as

the oppression faced by women from different social classes and racial/ethnic backgrounds . Lamphere, Zavella
and Gonzales (1993) have used the term social locations too specify the ways in which economic structure and the
labor market interact with class, ethnicity, culture, and sexual preference to shape womens various
experiences. Harding has asserted, There are no gender relations per se, but only gender relations as
constructed by and between classes, races, and cultures. In the area of domestic violence, the
conceptualization of gender as the primary foundation of battering as a social problem can mitigate the
significant role of other factors in the analysis and understanding of womens experiences of and responses
to domestic abuse.
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122
Abuse Excuse Bad For the System/Society

ABUSE EXCUSES UNDERMINE PUBLIC FAITH IN THE JUSTICE SYSTEM AND THE
MORAL FOUNDATION OF SOCIETY--ACCOUNTABILITY
James Q. Wilson & David Q. Wilson, Social Sciences Professor-Pepperdine University, 1998, Moral
Judgment: Does the Abuse Excuse Threaten Our Legal System?, p. 1-2
Many Americans worry that the moral order that once held the nation together has come unraveled . Despite
freedom and prosperityor worse, perhaps because of freedom and prosperity a crucial part of the moral order, a sense of
personal responsibility, has withered under the attack of personal self-indulgence.
By responsible people I mean accountable: We ought to answer for our own actions and not, save for the
extraordinary reasons, claim that we were compelled to act badly by forces over which we had little control .
We all know that society helps shape our character, but most of us deny that society excuses it. People ought to own up to
what they do and accept the consequences of their actions. High rates of crime, the prevalence of drug abuse, and the
large number of fathers who desert children and women who bore them all support the popular belief that responsibility has given way
to selfishness.
Nowhere does the problem of personal responsibility seem greater than in the criminal law. The public
worries that criminals are too often excused rather than punished or, if they are punished, that the sentence is too short
when imposed and even shorter in practice. The public suspects that criminal trials, especially those involving
murderers have been hamstrung by the introduction of a range of implausible excuses . The range from the socalled Twinkie Defense, a claim of judgment impaired by the toxic effects of junk food, through claims of psychosexual
abuse used by Erik and Lyle Menendez to produce a hung jury in their first trial, to arguments that a woman
may castrate or shoot a brutal husband even though he is asleep. Americans have never been entirely comfortable
with the insanity defense as raised by John Hinckley after he shot President Ronald Reagan; that discomfort has been heightened by
what people view as an indefensible effort to extend insanity, narrowly defined, to include psychological states described by such
terms as temporary insanity or diminished capacity or by various syndromes premenstrual, postpartum, posttraumatic, and the
like. The emergence of these concepts suggest to many people that essential notions of personal
responsibility have been weakened by the frivolous use of dubious theories of social causation . The way to
explaining that behavior on the basis of conflicting theories presented by rival expert witnesses speaking psychobabble.
ABUSE EXCUSE THREATENS DEMOCRACY AND ENCOURAGES VIOLENCE

and evasions of responsibility, p. 4-5
On the surface, the abuse excuse affects only the few handfuls of defendants who raise it, and those who are most immediately
impacted by an acquittal or reduced charge. But at a deeper level , the abuse excuse is a symptom of a general abdication
of responsibility by individuals, families, groups, and even nations. Its widespread acceptance is dangerous
to the very tenets of democracy, which presuppose personal accountability for choices and actions. It also
endangers our collective safety by legitimating a sense of vigilantism that reflects our frustration over the
apparent inability of law enforcement to reduce the rampant violence that engulfs us.
At a time of ever-hardening attitudes toward crime and punishment, it may seem anomalous that so many jurorsindeed, so many
Americansappear to be sympathetic to the abuse excuse. But it is not anomalous at all, since the abuse excuse is a modernday form of vigilantism a recognition that since official law enforcement does not seem able to prevent or punish abuse, the
victim should be entitled to take the law into his or her own hands.
In philosophical terms, the claim is that society has broken its social contract with the abused victim by not
according him or her adequate protection. Because it has broken that social contract, the victim has been
returned to a state of nature in which might makes right and the victim is entitled to invoke the law of
the junglekill or be killed. Indeed, these very terms were used in a recent Texas case in which one black youth killed two
other blacks in a dangerous urban neighborhood. The result was a hung jury.
But vigilantismwhether it takes the old-fashioned form of the lynch mob or the new-fashioned form of the abuse victims killing
her sleeping husbandthreatens the very fabric of our democracy and sows the seeds of anarchy and autocracy.
The abuse excuse is dangerous, therefore, both in its narrow manifestation as a legal defense and in its broader
manifestation as an abrogation of societal responsibility.
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Abuse Excuse Bad For the System/Society

ABUSE EXCUSE INCREASES VIGILANTISM, CYCLE OF VIOLENCE, AND UNDERMINES
DEFENSE FOR EVERYONE
That is why as a civil libertarian and as a defense attorney I am so concerned about the excesses of the abuse excuse. Taken
to its current and projected extremes, it is a lawless invitation to vigilantism, both on the part of abuse victims and
on the part of jurors who sympathize more with them than with those whom they have killed or maimed. It threatens to increase
the cycle of violence, not only by women but also against women. It endangers civil liberties by
substituting vigilante justicewhich is an oxymoron for courtroom justice, and the rule of man (and woman) for the
rule of law. It endangers legitimate defenses such as insanity based on mental illness, self-defense when there is no
recourse, and diminished capacity by expanding them to the point where a swing of the pendulum is inevitable.
Charles P. Ewing, a psychologist and law professor, points to a jury trial following the Menendez and Bobbitt cases in
which the jury deadlocked in a clear-cut battered woman syndrome case. He attributes this to a backlash caused
by the media barrage in the Menendez and Bobbitt cases.
ABUSE DEFENSES THREATEN CIVIL LIBERTIES AND THE RULE OF LAW AND
PERPETUATE CYCLES OF VIOLENCE
Abusive defenses such as those employed by the Menendez brothers and Lorena Bobbitt also undercut the credibility of
legitimate defenses in appropriate cases. Finally, they stigmatize entire groups of people women, blacks,
and others who share characteristics in common with the criminals but who do not commit similar crimes .
That is why I criticize the abuse excuse as a civil libertarian, as a defense lawyer, and as an egalitarian.
That is why I criticized vigilante defenses used by Southern lawyers in defense of Klan members who killed civil rights workers.
Being a civil libertarian and a defense lawyer does not obligate me to favor every defense to crime, regardless of whether it hurts or
helps civil liberties. The abuse excuse hurts civil liberties by undercutting personal responsibility and
encouraging lawlessness.
Civil liberties cannot thrive in an age of lawlessness. Anyone concerned about the rule of law should be
appalled at those who, for example, applauded Ellie Nesler for murdering a defendant in a courtroom while
his hands were shackled. She said she did it to stop him from abusing other children, as he allegedly had abused one
of her children several years earlier. But her act of vigilantism denied her victim his day in court. No civil
libertarian or defense lawyer can approve that kind of lawlessness. It is the most basic violation of due
process.
Moreover, accepting abuse as an excuse for violence does nothing to break the cycle of abuse . We are told that
most abusive parents, husbands, boyfriends, and others were themselves victims of abuse by others. Taken to its illogical extreme, the
abuse would justify or at least mitigate the conduct of the abuser as well as victim. To be sure, the abuser is not abusing the same
person or persons who abused him. But many of these who advocate the abuse excuse do not limit the history of
abuse, which is deemed to excuse, solely to the actions of the particular abuser who was killed or maimed ;
they argue that the woman who killed should be able to introduce evidence of abuse by other men in her life. Under that approach,
virtually no one except the original abuser in history should be held responsible for his or her actions. The cycle of abuseviolence-abuse is thus perpetuated by the abuse excuse. The big losers will be the most vulnerable people in our society
those who most need the protection of our criminal laws. The aged, young children, mothers on welfare, the handicapped will all
suffer if criminal responsibility is compromised by the abuse excuse.
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Responsibility/Accountability Basis of Criminal Justice System

CRIMINAL JUSTICE SYSTEM SHOULD BE GROUNDED IN RESPONSIBILITY EXCUSING
OFFENSES UNDERMINES THE SYSTEM AND MORAL AGENCY OF THE ACCUSED
The dialectic between practice and theory that conditions many areas of the law becomes acute when the criminal law describes the
human actor who may be held responsible for a crime. At the level of criminal practice, a finding of personal
responsibility carries a painful cost for the accused person because it subjects him to criminal punishment .
Understandably, the practitioner who is defending an accused will plead for an excuse, which invites a
determination that the accused was not responsible for his misconduct. The practitioner will argue that any available
excuse should be defined generously so that blame for the violation will be attributed, not to the accused's evil choice or character, but
to the force of circumstances beyond his control. Resisting these appeals, most criminal law scholars , as well as judges
and legislators, insist that the criminal law must hold fast to a definition of responsibility that is safe against all
but the most compelling claims for excuse. At the level of criminal law theory, the capacity for responsibility is
said to carry enormous benefits for the accused himself, even though it exposes him to punishment in
practice; it also carries benefits for law-abiding persons who share that capacity, because the law respects
the autonomy and privacy of responsible actors, as long as they do not offend. The theory of responsibility is
claimed to be peculiarly potent, for it guides legal practices outside the criminal law and shapes significant aspects
of social relations. Though actors who do not possess the capacity for responsible conduct may not be punished criminally, the
decision to excuse them constitutes a negative statement about their status as moral agents, which may expose them to supervision by
civil authorities. Thus, criminal law theorists claim that the law must deny the significance of differences in
character or opportunity produced by one kind of disadvantage or another, which defense lawyers offer to
excuse their clients' crimes, not only to ensure that the criminal law serves its important social control
function, but also to secure to individual citizens the benefits of responsibility.
HOLDING PEOPLE RESPONSIBLE FOR CONDUCT UNDERPINS JUDICIAL SYSTEM AND
PROVIDES MULTIPLE BENEFITS- EXCUSES SHOULD BE NARROWLY CONSTRUED
Because criminal punishment is designed to be painful, whether justified by principles of retributivism, utilitarianism, or
a mixture of both, the accused person and his defense counsel have a great incentive to avoid a finding of
responsibility. Criminal law scholars, however, insist that the practitioner's understandable concern for the painful
costs of such a finding must not move us to define excusing conditions more expansively. Rather, by
carefully confining the scope of excuse and thereby necessarily inferring that virtually all actors are capable
of rational choice, we are said to guarantee many beneficial consequences for the guilty accused, for
persons contemplating violations of the criminal law, and for law-abiding actors, in that we secure our
prized self-sovereignty in a free society. The roots of these sometimes dizzying claims for the social efficacy of our model of
criminal responsibility extend at least as far back as Blackstone, whose brief observations about the normative value of criminal
excuses concluded that it is just for the law to excuse in cases where the actor's will was overborne because the concurrence of the will
when it has it's [sic] choice either to do or to avoid the fact in question, [is] the only thing that renders human actions either
praiseworthy or culpable.
Planet Debate
125
Responsibility/Accountability Vital to Respect for Individual

Moral Agency
HOLDNG INDIVIDUALS RESPONSIBLE FOR THEIR CONDUCT CRITICAL TO
RESPECTING MORAL AGENCY
Reacting against it at the time, Stephen Morse wrote that the judge's proposal treated persons from disadvantaged
backgrounds as less than human because it denied that they were autonomous and capable of that most
human capacity, the power to choose. While the pressures on such persons to violate the law might be compelling, making
obedience very hard for them, Morse insisted that behavior is a matter of choice. Therefore, it is both moral and respectful to
the actor to hold the actor responsible. Since the judge's model virtually rejected the theory of personal responsibility for
conduct, which is the foundation for punishment, the proposed excuse could be raised in every criminal case, creating the specter of
mass acquittals. Yet, as Morse pointed out, the judge had failed to confront the tough question of what we would do with these
excused offenders, who had displayed their propensity for dangerous misconduct. Obviously, Morse remarked, the community would
not tolerate their release and would impose a system of civil incarceration, similar to the controls used to govern those found mentally
ill. Even more misguided was Judge Bazelon's belief that his proposal should spur the community to provide effective assistance to the
poor. For example, Morse predicted, if social welfare reforms were enacted as a crime prevention measure, they necessarily would
include intensive intervention into the family life and child-rearing of all poor families, because we have no basis for predicting which
families will turn out lawbreakers. Rather than providing a moral solution to the problem of blaming those whom
society has most neglected, Morse argued, the judge's program would lead to disrespect for personal
autonomy, to massive invasions of privacy, and to the "tyranny of the normative.'

In short, the disadvantaged background excuse would quickly and utterly overwhelm the protection against official interference
afforded by the model of personal responsibility: excused wrongdoers would be forced to undergo therapeutic
treatment or preventive detention, with these solutions soon giving way to preemptive incarceration, in
which actors thought to be deviant would be subjected to behavior modification even before they had committed
any legal infraction. In the event that his prediction lacked potency for those of us who feel remote from the subculture of deviance
identified by Judge Bazelon, Morse grimly observed that criminal offenders are produced by a complex interaction among numerous
biological, psychological, social, and economic factors; thus, a decision to junk our model responsible actor ultimately
would authorize intrusions into the liberty and privacy of all persons to ferret out, and treat, potential
criminogenic influences. The erosion of the safeguard of the responsible actor proposed by Judge Bazelon carried ominous
ramifications, indeed. Rather than being left alone by the state, free to rely on our own choices as the measure by which we shall live,
more and more of us would find ourselves subjected to the kind of supervision now thought necessary to monitor and restrain the
activity of animals, children, and the insane.
Planet Debate
126
Abuse Excuse Bad For the Defendant

EXCUSE DEFENSES ADMIT THE ACT WAS WRONG BUT EXCUSE THE CONDUCT DUE
TO SOME CHARACTERISTIC OF THE OFFENDER
In sharp contrast to the justified actor, who is adjudged to have governed himself in an exemplary fashion,
the excused defendant achieves leniency only by showing that, at the time he offended, his capacity to
choose lawful over unlawful conduct was grossly distorted. The job of understanding why we excuse is a complicated
one because the criminal law recognizes excuses residing in several conceptually distinct ideas or practices .
However, each of these distinct practices does appear to share a common feature: excuse is extended to an actor who suffers
from a disability that sets him apart from normal actors in a way that makes us doubt that his actions,
though a violation of the criminal law, warrant punishment.
The kinds of disabilities that excuse generally fall into two categories: defects in cognition and defects in
volition. In other words, excuse may be available where, because of a serious and verifiable disability, the actor
either does not realize that he is violating the law (defective cognition) or cannot prevent himself from violating
the law (defective volition). For example, the insanity excuse encompasses mental illnesses that disturb the actor's cognitive
processes to such an extent that he misperceives the physical nature of his conduct or does not know that his conduct is wrong or
criminal. In some jurisdictions, the insanity excuse also extends to mental illnesses that, though they do not cause a distortion in the
cognitive faculties with which the criminal law is concerned, severely impair the actor's ability to control his conduct. Similarly, the
actor who invokes the duress excuse and proves that he violated the law under threat of death is thought to
have labored under a volitional defect in that death threats profoundly disrupt the normal psychological
processes by which human beings control their conduct. Aware of the wrongfulness of the coercer's
demand, the coerced actor does choose to commit the crime rather than suffer a fatal or grievous wound,
but the alternatives open to him were so agonizing that we accept his claim that he was carrying out a
course of conduct that he did not choose - and would not have chosen - for himself.
ABUSE EXCUSES STIGMATIZE VICTIMS AND SPUR MORE VIOLENCE
The worst consequence of these abuse excuses is that they stigmatize all abuse victims with the violence of
the very few who have used their victimization as a justification to kill or maim . The vast majority of abuse
victims are neither prone to violence nor to making excuses. Moreover, abuse excuses legitimate a cycle of
abuse and further abuse, since most abusers have themselves been victims of abuse. Thus, by taking the abuse
excuse to its logical conclusion, virtually no abusers would ever be culpable.
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127
Abuse Excuse Bad - Slippery Slope

ABUSE EXCUSE SNOWBALLS TO BECOME A WIDESPREAD LICENSE TO KILL
The Abuse Excuse the legal tactic by which criminal defendants claim a history of abuse as an excuse
for violent retaliationis quickly becoming a license to kill and maim. More and more defense lawyers are
employing this tactic and more and more jurors are buying it. It is a dangerous trend, with serious and widespread implications for the
safety and liberty of every American.
Among the recent excuses that have been accepted by at least some jurors have been battered woman
syndrome, abused child syndrome, rape trauma syndrome, and urban survival syndrome. This has
encouraged lawyers to try other abuse excuses, such as black rage. For example, the defense lawyer for
Colin Ferguson the black man accused of killing white commuters on the Long Island Railroadhas
acknowledged that his black rage variation on the insanity defense is similar to the utilization of the
battered womans syndrome, the posttraumatic stress syndrome and the child abuse syndrome in other cases to negate criminal
accountability.
TAKING CONTEXT INTO ACCOUNT FOR BLAMEWORTHINESS OF SOME CRIMINAL

ACTS OPENS THE FLOODGATES THAT UNDERMINE THE BASIS OF THE JUSTICE
SYSTEM
Why does the excuse of duress cause mainstream scholars to grasp at such threadbare distinctions to keep it rigidly restricted? The
reason-openly confessed by mainstream academics -is because determinist doctrines like duress severely threaten the
coherence and cogency of the intentionalist assumptions of ordinary criminal law discourse . Once we admit
that decisions to break the law are sometimes blameless because those decisions are determined by
preceding factors, and once we acknowledge that in some cases we must inquire into the roots of bad
intentions and choices to evaluate blameworthiness, we naturally begin to wonder why we do not inquire
into the roots of decisions to break the law in all criminal cases . Why not always broaden the time frame and consider
the impact of background circumstances on a defendant's capacity to choose? For example, why not weigh the impact of a
disadvantaged social background on a defendant's criminal behavior in all cases in which the defendant
comes from such a background?
ABUSE EXCUSE UNDERMINES PERSONAL RESPONSIBILITY
Erin Mayton, JD Candidate-University of Texas, 1997, Sliding Down the Slippery Slope Away From
Personal Responsibility: The Abuse Excuse, American Journal of Criminal Law, 25 Am. J. Crim. L. 193,
p. 196-7
Throughout the book, Wilson is concerned that the ever-increasing list of recognized excuses is right on the
edge of the slippery slope sliding further away from personal responsibility. He quickly discusses several defenses
including postpartum depression, posttraumatic stress disorder, premenstrual syndrome, black rage, and drug and alcohol addiction.
He suggests that with the development and approval of such personalized defenses, expert testimony is
replacing individual accountability. Wilson argues that all human behavior is caused by something, and as a result, there is no
reason to waste time and resources explaining that something in each case. He argues that society allows so many
explanations and justifications that, ultimately, everyone will have an excuse for anything they do . Although it
is not possible to excuse all criminals from responsibility, Wilson asserts that there are so many excuses for crime, why should society
accept some and ignore others?
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128

NO EASY PLACE TO DRAW THE LINE ONCE YOU EXAMINE CONTEXT TO DETERMINE
BLAMEWORTHINESS
Given the panicked reaction to Professor Delgado's carefully circumscribed brainwashing excuse, it is not hard to imagine the
thundering chorus of scholarly condemnation-still reverberating today-that greeted Judge Bazelon's disadvantaged social background
excuse. The question, however, that none of Judge Bazelon's critics coherently answer is why (from a noninstrumental or just
deserts perspective) courts can recognize the restricted determinism of duress or provocation but not the
fuller determinism of the disadvantaged social background excuse. As far as what a person's choice does or
does not reveal about that person's "true" character, what difference does it make whether his choice to do
wrong is rooted in an immediate threat from an armed assailant (restricted determinism) or a brutally
abusive childhood (fuller determinism)? In pondering this question, we must fully contemplate the desperate plight of
battered children: "Victims of child abuse are likely to be kids from poor and often profoundly twisted families. They live in nightmare
worlds of filth and hunger and violence and extreme pain. Often their stories are case studies in unrelieved torment, sickening to hear
about, sordid beyond belief.")
ALLOWING BATTERED WOMEN TO RESORT TO PRIVATE VIOLENCE TO CORRECT FOR

STATE INACTION SNOWBALLS TO GENERAL VIGILANTE AND RACIST VIOLENCE
Consider for example the standard that some commentators have suggested for suspension of the imminence rule:
when the state is not "effective" in protecting the individual, she may resort to violent self-help . The problem is
that the notion of "effectiveness" is so vague and open-ended, it would exceedingly complicate jury trials,
resulting in lengthy, complex debates over how to define "effective," whether the state was effective, and just how
effective it had to be before force was justified. It is doubtful that such a standard could constrain the danger of the
resort to vigilante violence, and there is a great danger of sliding down the slippery slope to cases such as
Bernhard Goetz, who felt justified in resorting to vigilante justice on the grounds that the state was not
doing enough to keep the streets safe. It is worth recalling that the lynching of blacks in the South was widely
defended on the grounds that state punishment was too lax and too slow to adequately protect Southern
women from rape. Whereas in cases of an imminent threat, the individual's judgment is least susceptible to
bias or wrongful motives as the danger is clear and unmistakable because immediate (it is also more easily
susceptible to proof of necessity after the fact), the very opposite may be said of the "effectiveness" exception: that it is highly
susceptible to subjective bias and partiality.
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129

DETERMINISTIC EXCUSES UNDERMINE BASIS OF CRIMINAL JUSTICE SYSTEM
ASSUMPTION THAT WE ARE ACCOUNTABLE FOR OUR ACTIONS
Perhaps recognizing the irremediable slipperiness of the distinctions between character and circumstances, and between choosing and
not choosing the particulars of a crime, Fletcher resorts to popular assumptions, hoary conventions, and unabashed complacency for
support. Because his argument here epitomizes the smugly conservative rhetoric that marks mainstream reactions to the disadvantaged
social background excuse, I quote it in full:
The arguments against excusing too many wrongdoers are both moral and institutional. The moral or
philosophical argument is addressed to the problem of determinism and responsibility in the standard cases
of wrongdoing. It is difficult to resolve this issue except by noting that we all blame and criticize others, and in turn subject
ourselves to blame and criticism, on the assumption of responsibility for our conduct. In order to defend the criminal law against the
determinist critique, we need not introduce freighted terms like "freedom of the will." Nor need we "posit" freedom as though we were
developing a geometric system on the basis of axioms. The point is simply that the criminal law should express the way we
live. Our culture is built on the assumption that, absent valid claims of excuse, we are accountable for what
we do. If that cultural presupposition should someday prove to be empirically false, there will be far more
radical changes in our way of life than those expressed in the criminal law.
RELAXING SELF-DEFENSE STANDARD FOR BATTERED WOMEN SNOWBALLS
MENEDEZ VERDICT PROVES
The Menendez debacle leaves two messages for us to ponder. First, there is no way to limit arguments of
domination and abuse to the justification of force in situations of ongoing domestic violence between men
and women (or between adult gay couples). Some feminists may have thought that advancing the battered woman's claims of selfdefense would help women as a special class that deserved special protection after centuries of discrimination. The battered woman
syndrome would represent something like affirmative action in the courts; it would compensate for all the prejudice that had
accumulated against women, particularly in rape cases. But if there is any principle guiding legal thought, it is the
egalitarian impulse toward generalization by analogy. The courts cannot recognize a defense for the blue eyed and refuse
it to the brown eyed. There is no way of limiting a new defense to a privileged class. If the "syndrome" relaxes
the criteria of self-defense for women, it must have the same impact for battered men and battered children.
This was obvious to Leslie Abramson, Erik's lawyer, who made it clear from the outset that the defense would
develop a defense for battered children that would draw on the innovations developed for battered women.
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130

SNOWBALLING ABUSE EXCUSES THREATEN TO UNDERMINE THE CRIMINAL
JUSTICE SYSTEM
Tosha Yvette Foster, JD Candidate, 1997, From Fear to Rage: Black Rage as a Natural Progression From
and Functional Equivalent of Battered Woman Syndrome, William and Mary Law Review, 38 Wm and
Mary L. Rev. 1851, p. 1851-2
Between 1993 and 1995, Americans witnessed a series of notable, highly publicized criminal trials. The most recent notable trial, that
of O.J. Simpson, resulted in a not guilty verdict that proved difficult for some to accept. The criminal verdict also was accompanied by
a decrease in the level of faith in the criminal justice system. For many, however, doubts about the ability of the current criminal
justice system to punish wrongdoers and by extension, to protect society at large, likely predated the Simpson verdict.
From the much publicized Menendez trial, to the much discussed Bobbitt trial, Americans have questioned judicial acceptance of
"abuse excuses." When evaluating the guilt or innocence of the accused, jurors were urged to consider battered child syndrome in the
Menendez trial and battered woman syndrome in the Bobbitt trial. Both battered child syndrome and battered woman
syndrome are commonly asserted abuse excuses. Although some people may not accept them as valid
defenses to criminal behavior, defense attorneys expect to use abuse excuses whenever the opportunity
should present itself. Few people, however, anticipated the black rage defense claimed by Colin Ferguson, the
assailant in the Long Island Railroad shooting, and even fewer people were willing to accept the black rage
defense. Some commentators argue that as long as the excuses are legitimate, they should be allowed. Others,
including some defense attorneys, warn that accepting an expanding number of abuse excuses as defenses
eventually will undermine the functioning of our criminal justice system .
BLACK RAGE SYNDROME FLOWS DIRECTLY FROM BATTERED WOMAN SYNDROME
Tosha Yvette Foster, JD Candidate, 1997, From Fear to Rage: Black Rage as a Natural Progression From
and Functional Equivalent of Battered Woman Syndrome, William and Mary Law Review, 38 Wm and
Mary L. Rev. 1851, p. 1871-2
Both battered woman syndrome and black rage initially manifest themselves as defense mechanisms to
forms of abuse. The battered woman realizes her limited options and becomes passive in response to repeated physical, emotional,
and sexual abuse. Likewise, the brutalized black person, seeing and experiencing daily the historical and
perpetual ill-treatment of blacks and perceiving that blacks are akin to an endangered species, develops a
coping mechanism centered around paranoia. Neither battered woman syndrome nor black rage are independent forms of
mental illness but are subsets of other recognized forms of psychoses.
Additionally, expert testimony concerning both battered woman
syndrome and black rage provides a

subjective view of the life of the accused. Battered woman syndrome focuses on the subjective life of a
battered woman, as opposed to a "typical" woman, and provides a glimpse of the defendant's thoughts and
emotions that led to the homicide. Black rage focuses on the subjective life of a black person living in
America, as opposed to focusing on the experiences of a hypothetical "citizen." Testimony would involve the
amount of reflection that the accused gave to racism before the homicide, as well as any personal experiences that may have
contributed to the move from healthy cultural paranoia to unhealthy individual paranoia. Admitting testimony concerning black rage
would allow the trier of fact to hear information relevant to the accused's actions and consider that information when evaluating the
evidence, in the same manner that admitting battered woman syndrome evidence aids the trier of fact.
Furthermore, battered woman syndrome and black rage serve to make the criminal justice system more
inclusive. Various legal scholars argued that the legal system, including the criminal justice system, was
designed for the writers of the laws, namely white males. Battered woman syndrome allows the reality of women's lives
to enter the legal landscape. Similarly, acknowledging black rage permits blacks to be brought onto a more even
playing field. Battered woman syndrome and black rage thus serve the same function, to ensure that "equal
justice," written primarily by and for one group of people, is received by all groups of people.
Planet Debate
131

ABUSE EXCUSES HAVE EMPIRICALLY SNOWBALLED
There are a growing number of abuse excusesand other excuses that are analogousthat have been raised or proposed.
The list of syndromes which have been discovered, invented, constructed, or concocted as
excuses for crime is mind-boggling. A sampling follows:
Adopted child syndrome
American dream syndrome
Arbitrary abuse of power syndrome
Battered child syndrome
Black rage syndrome
Computer addiction
Distant father syndrome
Elderly abuse syndrome
Everybody does it defense
Failure-to-file syndrome
False memory syndrome
Fetal alcohol syndrome
Gangster syndrome
Holocaust survivor syndrome
Legal abuse syndrome
The minister made me do it defense
Multiple personality disorder
Parnetal alienation syndrome
Patient-therapist sex syndrome
Pornography made me do it defense
Posttraumatic stress disorder
Premenstrual stress syndrome
Rape trauma syndrome
Repressed (or recovered) memory syndrome
Ritual abuse (satanic cults) syndrome
Roid rage (violence caused by steroids)
Self-victimization syndrome
Sexual abuse syndrome
Sexually transmitted disease syndrome
Situational stress syndrome
Sybil syndrome
Television made me do it defense
Tobacco deprivation syndrome
Twinkies made me do it defense
UFO survivor syndrome
Urban survival syndrome
Vietnam syndrome
Each of these syndromes and defenses shares in common a goal of deflecting responsibility from the person who
committed the criminal act onto someone else who may have abused him or her or otherwise caused him or her to do it.
Some of these excuses try to shift the blame to the abuser, others to a condition or circumstance. The
likelihood of success increases if the finger of abuse can be pointed to the specific person whom the
defendant killed or injured, allegedly to protect himself or herself.
Planet Debate
132
Killing Abusers Not Just

WRONG FOR CRIMINAL JUSTICE SYSTEM TO PERMIT NON-CONFRONTATIONAL
KILLING OF EVEN THE WORST ABUSERS
To keep a real case of wife battering in mind, think of the prosecution of Judy Norman in North Carolina. John Norman
had engaged in systematic dehumanizing actions toward his wife Judy. Beginning about five years after the wedding,
he started drinking and, while drunk, assaulting her, throwing glasses and bottles at her, putting out cigarettes on
her, breaking glass against her face and crushing food on her face. In addition, he forced her to engage in
prostitution to generate income for their household and mocked her streetwalking in front of "family and friends." If not satisfied
with her earnings, he beat her and called her "dog" and "whore." On a few occasions, he made her eat pet food out
of the pet's bowl and forced her to sleep on the floor. Apparently, according to her testimony, he kept up these
degrading practices for about 20 years-until the day in mid-June 1985 when she shot him in the back of the head.
There is ample corroboration of her story in the words of others. For example, her daughter Phyllis testified that her father had beat
her mother "all day long" immediately prior to the shooting. Also, Judy Norman had appealed with complaints to the police
and to a domestic abuse center at the local county hospital. The police would not intervene unless Judy took
out a warrant for John's arrest, and that she feared to do; she had experienced beatings in retaliation for prior efforts to
leave the scene of her suffering. The situation went from bad to worse. John was enraged and out of control, as a boarder testified, for
having been arrested on a drunk driving charge. At that point he forbad Judy from eating for three days prior to the shooting. The
family tried to get food to her, the mother sent over groceries, but Judy Norman feared retaliation and a beating if she disobeyed her
tyrannical husband. The words that we have availed to describe these anti-human conditions are too easily subject to abuse. This
was a gulag she called home.

If there was ever a clear relationship of dominance, this was it. This is a case of obvious evil. And the legal
system turned a blind eye. The temptation is to think that the oppressed and battered woman should take the law into her own
hands. The victim of the shooting, John Norman, had it coming to him. But however tragically Judy Norman's appeals to
the authorities went unheeded, she cannot put herself in the position of judge and executioner . If the
authorities had responded and prosecuted John Norman, they could not-for all his wickedness-impose the death
penalty. There may be justice in his dying, but it is not a form of justice that the legal system can readily
accommodate.
KILLING A SLEEPING ABUSER IS NOT A TOLERABLE MORAL OUTCOME
Some Reflections, The Ohio State Journal of Criminal Law, 3 Ohio St. J. Crim. L. 457, p. 461
The other thing to appreciate about self-defense is that it is a justification defense . To characterize a homicide as "justifiable"
is to say that killing the abuser while he sleeps is the right, good, or proper thing to do, or, at least, that killing
him constitutes a tolerable, permissible, or non-wrongful outcome. For the reasons I set out below, I believe that we
should be very, very slow to suggest that the killing of a sleeping abuser is a "proper" or even "tolerable"
moral or legal outcome.
Planet Debate
133
Killing Abusers Not Just

KILLING AS RETALIATION/RETRIBUTION NOT JUST
and Excuse, University of Pittsburgh Law Review, 57 U. Pitt. L. Rev. 553, p. 558
In cases of interpersonal as well as international violence, the outbreak might be neither defensive nor preemptive. It
could be simply a passionate retaliation for past wrongs suffered by the person resorting to violence. Retaliatory
acts seek to even the score-to inflict harm because harm has been suffered in the past.
Retaliation is the standard case of "taking the law into one's own hands." There is no way, under the law, to
justify killing a wife batterer or a rapist as retaliation or revenge, however much sympathy there may be for
the wife wreaking retaliation. Private citizens cannot function as judge and jury toward each other. They
have no authority to pass judgment and to punish each other for past wrongs .
Those who defend the use of violence rarely admit that their purpose is retaliation for a past wrong. The
argument typically is that the actor feared a recurrence of the past violence, thus the focus shifts from past to future violence,
from retaliation to an argument of defending against an imminent attack. This is the standard maneuver in
battered-wife cases. In view of her prior abuse, the wife arguably has reason to fear renewed violence. Killing the husband while
he is asleep then comes into focus as an arguably legitimate defensive response rather than an illegitimate act of vengeance for past
wrongs.
Planet Debate
134
Killing Abusers Undermines Value of Life

LEGITIMIZING BATTERED WOMEN KILLING THEIR ABUSERS UNDERMINES THE
GENERAL BELIEF IN THE SANCTITY OF LIFE
So, in summary so far, I contend that we should not justify the Judy Normans who kill their tormenters in passive
circumstances. To do so unduly expands the lawful use of deadly force to a point dangerous to the
community and debilitating to our belief in the general sanctity of human life . Admittedly, it is a tempting
direction to go when we look at evil persons such as J.T. Norman and when we see the "solution" of
execution of the sleeping abuser as a way of relieving the victim's agony. But it strikes me as a path we
should be slow to condone. And, that is especially the case when there is another theory -- another potential basis -- for handling
the issue. And, it is to that possible new solution to which I now turn.
Planet Debate
135
Justification Defense Does not Mean the Act is Moral

SUCCESSFUL JUSTIFICATION DEFENSE DOES NOT PROVE THAT THE ACT WAS MORAL
The category "justification" in the criminal justice system means only that an individual has avoided
liability based on a defense whose animating principle is that those who have done nothing wrong should
not be punished. Even if the challenged conduct is within the statute, it does not necessarily mean that the actor has
done nothing wrong, in the moral sense, in this particular case. Therefore, to assign a label to acquittees on this
basis (say, "not guilty-justification") will be inaccurate to an unknowable degree in an unidentifiable number of
specific cases, and to that extent fails to offer accurate moral messages .
BURDEN OF PROOF STANDARDS MEANS THAT A SUCCESSFUL JUSTIFICATION DEFENSE
DOES NOT PROVE THE ACT WAS MORAL
Mich. J.L. Reform 79, p. 96-7
The burden of proof for justification defenses stands in the way of both moral judgments and the claim that
acquittal means that the defendant in fact did nothing the criminal law regards as wrong. The burden of
proof is calibrated to avoid convicting the innocent at the cost of making it more difficult to convict the
legally and morally guilty. No burden of proof can simultaneously be so stringent that it prevents all erroneous convictions
(ensuring that all persons convicted are blameworthy) and so lenient that it prevents all erroneous acquittals (ensuring that all persons
not convicted are blameless). Wherever it is set, there will be both some defendants who get the defense and do not deserve it, and
others who deserve the defense but do not get it.
In many jurisdictions, the state must disprove self-defense beyond a reasonable doubt. A jurisdiction could
reasonably conclude that this high burden is warranted, to prevent the occasional conviction of an innocent person. Take,
for example, North Dakota, which by statute deems mistaken justifications "excuses," signaling that it regards the distinction as
important. Even in North Dakota, when there is clear and convincing evidence (but not proof beyond a reasonable doubt) that the
defendant is a cold-blooded murderer who did not act in self-defense, the individual must be acquitted as "justified."
In this way, all justification defenses are in part non-exculpatory public policy defenses. They sometimes
exonerate the guilty because of substantive and procedural features intended to protect the innocent. In no
case, therefore, does a verdict of "not guilty," even one known through a special verdict or otherwise based on a pure
justification defense, necessarily represent moral or legal exculpation. Thus, drawing a strong moral conclusion
from any acquittal without examining the facts is not logical . Proposals to draw moral messages from acquittals present
the "disease as cure" problem, changing agnostic "not guilty" verdicts that are accurate in every case to potentially morally misleading
ones by assigning reasons that will sometimes be false.
WHILE LAWS ARE DERIVED FROM MORAL PRINCIPLES WHAT IS LEGAL IS NOT
NECESSARILY THE SAME AS WHAT IS MORAL
Eugene R. Milhizer, Associate Professor of Law, Ave Maria School of Law, 2004, Justification and
Excuse: What They Were, What They Are, and What They Ought to Be, St. Johns Law Review, 78 St.
John's L. Rev. 725, p. 854-5
As traditionally and correctly understood, all legitimate laws, including criminal laws, are derived from and
consistent with transcendent moral principles and norms. This is not to suggest that the criminal law's
proper purpose is to codify morality, i.e., to describe comprehensively moral behavior and punish all departures from it.
Much of what is deemed immoral is left unregulated because of countervailing interests involving
individual liberty and freedom, because the conduct is not sufficiently harmful to society to warrant
regulation or punishment, or because of other prudential reasons. For example, although lying is immoral, the
criminal law stigmatizes only certain lies that are especially harmful, such as perjury and false official
statements. This traditional understanding of law and morality also recognizes that some laws, such as traffic regulations,
lack an obvious moral content, and that the body of law must regulate the mundane as well as the profound. There is no doubt,
however, that a traditional understanding of the inter-relationship between law and morality recognizes that the former's very
legitimacy depends upon its adherence to and consistency with transcendent moral norms. The positive law, in other words, was
always properly understood as being a derivative and selective extension and expression of the moral law that undergirds it.
Planet Debate
136
Excuse Defense Does Not Mean Act is Moral

EXCUSE DEFENSE DOES NOT MEAN AN ACT IS MORAL
An excuse, on the other hand, may be a complete legal defense, but it is not generally a moral exculpation.
Killing someone by accident does not generally result in criminal liability (at least absent a high degree of
negligence), but it surely is not praiseworthy. The act is indeed deserving of condemnation, though the actor is excused. We
dont want him to do it again, though we will excuse him from criminal responsibility this time.
Planet Debate
137
Insanity Defense Does Not Find Killing a Moral or Just

Response
INSANITY DEFENSE SAYS THAT THE KILLER IS MORALLY BLAMELESS NOT THAT
THE ACTION IS MORAL
Relatively early on in the history of the prosecutions of battered women, defense lawyers typically avoided
the stringency of self-defense law by avoiding the defense entirely in nonconfrontational cases . The defense
lawyer would contend that the battered women should be acquitted because of "temporary insanity." For
example, when battering victim Francine Hughes poured gasoline over her sleeping husband's bed and set
him ablaze, her defense counsel successfully obtained an acquittal on insanity grounds , thanks in part to the
testimony of a clinical psychologist that Hughes "experienced a breakdown of her psychological processes so that she was no longer
able to utilize judgment . . . no longer able to control her impulses . . . [and] unable to prevent herself from acting in the way she did."
Thus, Hughes avoided incarceration, but she did so at a cost. As some women's groups and domestic violence experts
appreciated, the moral message sent by the verdict was that Francine Hughes acted wrongly in killing her
husband. She escaped conviction because the jury believed she suffered from a disabling mental condition
that rendered her morally blameless for her wrongful actions. In short, Hughes, the woman, was excused; her
actions, however, were not justified.
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Presumption Against Deadly Force

DUTY TO RETREAT MEANS DEADLY FORCE IS A LAST RESORT
Jeffrey B. Murdoch, JD Candidate, 2000, Is Imminence Really Necessity? Reconciling Traditional Selfdefense Doctrine With The Battered Woman Syndrome, Northern Illinois University Law Review, 20 N.
Ill. U. L. Rev. 191, p. 196
Another doctrine that some jurisdictions use to qualify their law of self- defense is the duty to retreat. Like the rule against
aggressors claiming self-defense, the retreat rule also acknowledges that necessity is a broader concept than its
equation with imminence would hold. This doctrine requires that a person retreat, if it is possible to do so in
complete safety, before one is allowed to use deadly force in response to an attack . The duty to retreat arises because,
by definition, if one can take some action other than using deadly force to avert threatened harm, the use of
deadly force is not necessary. Thus, the retreat rule is built upon the principle of necessity. Furthermore, the retreat rule
recognizes that there may be circumstances beyond the temporal which would allow one to retreat. These additional circumstances can
perhaps best be categorized as spatial. Again, in the retreat rules, there is a recognition that imminence is not all there is to necessity.
DEADLY FORCE LIMITED TO LAST RESORT

But also -- and this is where Judy Norman comes in -- the right to protect one's autonomy by using deadly force is
limited to cases in which such an extreme response is necessary. Stemming from the common law, a core
feature of self-defense law is that the life of every person, even that of an aggressor, should not be
terminated if there is a less extreme way to resolve the problem.
EXISTENCE OF INSTITUTIONAL LEGAL ALTERNATIVES NEGATES JUSTIFICATION FOR
DEADLY FORCE
Just Convictions, p. 109
Available legal alternatives other than retreat may preclude the justified use of force in self-defense .
Institutional assistance such as police intervention or restraining orders, for example, undermines the claim
that defensive force is necessary provided that assistance is available and effective. Confrontation cases involving an
attack in progress would rarely offer an opportunity to resort to these options, but the availability of legal
alternatives may become a critical consideration in nonconfrontation cases. The defendant who exercises
violence against a batterer who is not battering at that time must explain why her exercise of force was
necessary to prevent an anticipated attack. In order to support the claim that she reasonably believed that her exercise of
force was necessary for self-defense, she must demonstrate that she reasonably believed that legal alternatives
were either not available or not effective.
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Legitimate Self Defense Requires Imminence

IMMINENCE REQUIREMENT NECESSARY FOR SELF-DEFENSE TO MAINTAIN ITS
MORAL BASIS
The alternative contemporary theory of imminence, presented in Kimberly Ferzan's "Defending Imminence: From Battered Women to
Iraq," rejects the Proxy Thesis (though, as we will see, falls prey to the same error as the Proxy Thesis does). Ferzan argues that the
"compelling need to aid battered women has made the self-defense argument too easy. In this context, the
integrity of self-defense has been undermined by the jettisoning of imminence. " She insists that imminence is
"more than a proxy for necessity," but has an independent ethical basis. Her argument is based on the conceptual
distinction between self-defense and self-preference. The distinctive feature of self-defense, according to Ferzan, is
precisely that it is a defense against an act of aggression: "Self-defense is only understandable as a response
to another's aggressive conduct." And it is imminence that is the measure of aggression: "when the right to
self-defense is broadened to any person that might potentially inflict harm, we blur the distinction between
offense and defense. . . . We then have no ability to distinguish self-defensive conduct from aggressive conduct." This
requirement that there be prior aggression is a moral one, for Ferzan: "the moral assessment of both the
aggressor's and the defender's rights hinges on some notion of aggression. " One who invokes self-defense
before there is an imminent threat loses the moral high ground and thus the justification for his act : "The
aggressor's action 'starts it.' We can only understand defense by comparison with offense. The aggressor's action signifies the breach of
the community rules and the lack of respect for the defender. It is this action that makes self-defense understandable." The
imminence requirement thus ensures that the force really is defensive and therefore morally justified.
STRONG PRESUMPTION AGAINST WEAKENING THE IMMINENCE RULE GIVEN THE
DANGERS OF PRIVATE VIOLENCE
In recent years we have seen a major attack on the imminence rule, especially in its application to battered women. The wide range of
proposals for modifying the imminence restriction for battered women include eliminating the rule entirely, subordinating it to
necessity, modifying it, supplementing it, making it more flexible, subjectivizing it, contextualizing it, broadening it, and so forth. My
purpose here has been to sound a cautionary note in this debate. While there may well be some genuine cases where the
application of the imminence rule serves an injustice, one ought to be very careful in tinkering with a
crucial limitation on the right to violent self-help. This is particularly important given the serious doubts that have been
raised about whether the proposed reforms would have much impact on battered women homicides. As Holly Maguigan emphasizes,
the existing law of self-defense in most jurisdictions is "consistent with the self-defense claims of battered
women who kill"; to the extent there is a problem, it has to do with "unfair application of existing law," not
with the current standards of self-defense per se.
The imminence rule, as we have seen, is a crucial, independent restriction on the individual right to resort to
violence against others, especially deadly violence. The first task of the state is the control of violence, and
the restriction of individual violence to cases of genuine emergency when there is no recourse to state
protection is crucial to establishing this monopoly on violence. Civil life is, as Pufendorf warned, "too fragile to
allow each man to exact what he believes to be his due by violent self-help." Moreover, it is an essential
element of the rule of law that each person-even batterers-have a right to due process of law, especially
when their lives are at stake. If the rules of self-defense permit an exception to this principle in the case of
imminent danger, it is an exception that is best kept to an absolute minimum. As Joshua Dressier cautions, "we
should hesitate long and hard before we promote a criminal defence that categorically justifies the taking of life before it is
immediately necessary." Before we proceed with any modification (let alone elimination) of the imminence
restriction, we had better consider very carefully the implications of such a radical change in die longestablished and highly effective principles controlling the private resort to violence .
Planet Debate
140

SELF DEFENSE REQUIRES PROTECTION FROM AN IMMINENT ATTACK
1. The Attack Must Be Immediate
Self-defense is about repelling attacks-or more broadly, about fending off possible violations of rights. The first
question, then, is when the impending violation is sufficiently proximate to trigger a legitimate response . The
most common formula is that the attack must be imminent; it must be about to happen.
The requirement of imminence means that the time for defense is now. The defender cannot wait any longer. This
requirement distinguishes self-defense from the illegal use of force in two temporally related ways. A preemptive strike against
a feared aggressor is illegal force used too soon, and retaliation against a successful aggressor is illegal
force used too late. Legitimate self-defense must be neither too soon nor too late.
In the case of a preemptive strike, the defender calculates that the enemy is planning an attack or surely is likely to attack in the future,
and therefore it is wiser to strike first than to wait until the actual aggression. Preemptive strikes are illegal in international law as they
are illegal internally in every legal system of the world. They are illegal because they are not based on a visible manifestation of
aggression; they are grounded in a prediction of how the feared enemy is likely to behave in the future.
The line between lawful self-defense and an unlawful preemptive strike is not so easily staked out, but there are some clear instances
of both categories. Because the general principles of international law are the same as those of domestic legal systems, we can ponder
some dramatic examples among current international events.
MORALITY REQUIRES LIMITING SELF-DEFENSE TO WARDING OFF AN IMMINENT

ATTACK
Yet there is an important moral difference between pumping lead into a dead body and killing an aggressor
in self-defense. We can comfortably say that there is no harm in the former case (except perhaps interference with a dead body),
but injuring or killing a human being remains a harm, even if the harm is inflicted in self-defense. Justifying
the infliction of harm against a human being acknowledges the harm but asserts that it was inflicted for
good reason. The good reason is one that the defendant must personally entertain. It must be his or her reason for inflicting the
harm.
Note that the intention required is not to make the aggressor suffer but merely to thwart the attack , to ward it off,
to prevent it from happening. Working out this distinction-between making the aggressor suffer and fending off
an attack-was a critical advance in the Western understanding of self-defense . So far as I know, Thomas
Aquinas was the first to note the distinction and to limit self-defense to an intention designed to repel the
attack. Without this distinction, it is tempting to think of self-defense as a form of private punishment,
designed to make the aggressor suffer for the attack.
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IMMINENCE REQUIREMENT NECESSARY FOR SELF-DEFENSE TO REMAIN A LIFEAFFIRMING CONCEPT
Can we justifiably claim that a person's right of autonomy extends to taking a human life while that person
is asleep, because of his ongoing violent conduct? And, given that we are excluding syndrome consideration from this
analysis, can we justify the use of deadly force in defense of one's autonomy if there are nonviolent solutions
available? Although reasonable minds will differ on this, I submit that we should hesitate at expanding the right to kill as far as the
Judy Norman cases could take us.
The traditional requirement of imminency -- a temporal requirement, a relative closeness in time between the aggressor's
unlawful threat and the innocent person's defensive efforts to repel it -- serves an important, life-affirming, purpose. To
suggest that a battered woman should be able to kill today because sooner or later the batterer will
inevitably kill her strikes me as unacceptable. First, it is hard to imagine that it is necessary to kill to prevent
deadly force from being inflicted far down the time-line. The greater the time span between the defensive act and the
predicted act being defended against, the greater are the options available to the innocent person. Some reasonable temporal
requirement is needed.
The more we permit early use of force, the greater the risk that the force used was not necessary. But,
because deadly force is used -- and the putative aggressor is now dead -- we will never know for sure if the feared
attack was going to occur and whether some other, less extreme, remedy would have been sufficient . After
all, there is the slight possibility -- remote in J.T. Norman's case but perhaps less so in some other battering cases -- that the batterer
will change his behavior if permitted to live. Maybe he will "see the light"; more plausibly, since so many batterers have drinking
problems, he will get help to combat his alcoholism; or maybe he will go through counseling or anger management training. Professor
A1 Alschuler, speaking on a different issue, has remarked that "even funnel clouds" -- danger -- "sometimes turn around, and human
beings" -- because they possess free will -- "sometimes defy predictions." I would suggest that human tornadoes will defy our
predictions far more often than their cousins in Nature, if they are allowed to live. We should not entirely
give up on the ability of people to change -- that is one reason why some reasonable temporal requirement
is in order.
Beyond this, there is always the possibility that some other event will intervene to render an apparent
necessity to use deadly force inoperative. Maybe the batterer will have a debilitating stroke. Or, maybe, as sometimes
happens, the batterer will abandon the family, thus freeing the woman from further abuse, and rendering
deadly, autonomy-protecting, force unnecessary. My point, simply, is that once the law gets away from a
requirement of an immediate need to use force and begins to authorize preemptive strikes, we increase the
risk of repeating on an individual scale what happened in Iraq -- a claimed need to invade preemptively to
get rid of weapons of mass destruction that proved non-existent .
Planet Debate
142

IMMINENCE RULE NECESSARY TO PREVENT RETALIATORY MOTIVES IN PRIVATE
VIOLENCE
Equally important, the imminence rule serves to limit the influence of retaliatory motives in the individual's
judgment (as well as the jury's judgment) as to when force is appropriate against another. Women no less than
men are of course influenced by retaliatory motives, a fact that must be kept in mind even for cases of battered
women. Unfortunately, advocates for homicidal battered women all too often idealize them as innocent victims
of circumstances, and neglect the possibility that anger or retaliatory motives can easily distort one's
perceptions of the need to resort to present force in self-defense (or even be the central motivation for the
violence). Cynthia Gillespie's failure to treat this issue in her Justifiable Homicide exemplifies this problem; in her
portrayal, women always act out of fear, but never rage or revenge, in stark contrast with the portrayals of
the men in her book, who are regularly depicted as motivated by anger and a desire to retaliate against their
spouses. Nor is this one-sided portrayal unique to Gillespie. As Belinda Morrissey argues, "Rage has traditionally been denied in
representation of women in Western societies. . . . Even Lenore Walker, who acknowledges its existence, downplays the significance
of anger as a catalyst when battered women kill, claiming that fear is the most important factor in these homicides."
But it is hardly plausible that none of these women, enduring the abuse that Gillespie describes, were at all
motivated by anger towards their tormenter or a desire to retaliate against him. Indeed, there is evidence of a
retaliatory motive even in some of the textbook cases, including the case of Judy Norman: her therapist testified that the
day before the killings, Norman expressed "considerable anger toward her husband" and said she should kill him "because of the
things he had done to her"--i.e., for past wrongs rather than future threats. Dershowitz suggests that Lorena Bobbitt may
also have been motivated by retaliation; there is evidence that her attack may have been an attempt to get back at her
husband when he said he was leaving her. Numerous commentators have warned that expanding the law of selfdefense would in effect license retaliation: George Fletcher suggests "we are witnessing the beginning of a
transformation of the battered woman's syndrome into a general defense of abuse as a justification for
retaliation." Dershowitz also sees a "growing justification for vigilante violence by those who claim they
cannot receive justice from the legal system ." Joshua Dressier argues that the underlying, unstated premise in many
battered women cases is that the woman is justified in killing her abuser "for the simple reason that he deserves it." Indeed, some
feminists have even explicitly argued that the battered woman should be allowed to carry out vigilante justice and punish her abuser.
Relaxing the imminence rule only invites retaliation by blurring the line between defensive force and
retaliatory after-the-fact force.
IMMINENT MEANS ABOUT TO OCCUR
"Imminent" is not a technical legal term , but is used in its ordinary or dictionary meaning, and indeed is often not defined at
all in statutes and jury instructions. The most common definition given is "about to occur"; that is, a danger is
imminent when it is not a future but a present threat. It is sometimes argued that "imminent" must be sharply
distinguished from the term "immediate," on the grounds that the latter implies a far more urgent, pressing, present threat than does the
former. However, it would be misleading to insist on too precise a distinction between these two words, for they are often used
interchangeably in common speech as well as in legal circles. A survey of case law shows that courts often use the two words
concurrently or even interchangeably. Paul Robinson thinks that imminence, taken literally, requires that the defendant
wait until the attacker "is standing over him with a knife"--i.e., is no less strict than immediacy. Black's Law
Dictionary defines "imminent" as "near at hand; mediate rather than immediate," but then confusingly defines "imminent
danger" this way: "In relation to homicide in self-defense, this term means immediate danger." Wayne LaFave
finesses the distinction by defining an imminent threat as one that is "almost immediately forthcoming." And the Model Penal Code
standard for self-defense adopts the phrase "immediately necessary"--a rather opaque phrase that apparently turns "imminence" into
"immediacy" (see discussion in the next section). It is thus far from obvious that there is an important or useful
distinction to be drawn between "imminent" and "immediate, " and I will use them interchangeably in the remainder of
this essay.
Planet Debate
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IMMINENT MEANS NOW
Subjectivity, University of Chicago Law Review, 68 U. Chi. L. Rev. 1235, p. 1242
Much of this debate appears to proceed on the assumption that the meaning of the term "imminence" is selfevident. Treatises and law reviews tell us that "the requirement of imminence means that the time for
defense is now. The defender cannot wait any longer." Similarly, force is "imminent" if it will occur "almost
immediately," "upon the instant," or "at once." "Legitimate self-defense must be neither too soon nor too late." Although
the Model Penal Code sought to change this rule, and potentially soften it, by shifting the requirement from the threat (as "imminent")
to the response (as "immediately necessary"), this approach has done little to change the basic assumption that we are still talking
about temporal matters.
IMMINENCE IS NOT MERELY A PROXY FOR NECESSITY

The first question for us then is whether the Proxy Thesis is correct: is the function of the imminence rule merely to serve
as an indicator for necessity? A close analysis will show that the thesis is false: the imminence and the
necessity rules are logically independent. It is certainly to be conceded that there is a close factual relation between
imminence and necessity, in that ordinarily when a threat is not yet imminent, it will not be necessary yet to resort to defensive force.
Similarly, in most cases where the use of defensive force is judged to be necessary, it will typically be the case that the danger is either
imminent or actual. There is an obvious explanation for this close connection: the further off in the future a potential threat
lies, the less likely it is that it will be necessary to counter it with present force, since there is ample time to
find other (nonviolent) responses. Further, since temporally distant harm is usually highly uncertain and even
speculative, it is harder to justify a claim that a violent response is necessary right now . Lots of things could
happen between now and then to make the use of force unnecessary. But by the time the threat becomes imminent, there is a far more
plausible case to be made that it is necessary to take decisive action.
Moreover, the relation between imminence and necessity is imperfect. It is easy to conceive of situations
involving imminence but not necessity, and vice versa. For example, if a security guard yells out to me:
"identify yourself or I'll shoot!" here there is an imminent threat, but since I can avoid any harm by simply
identifying myself, there is no necessity to use force. Somewhat more counterintuitively, it is also easy to conceive of
cases where force is necessary even though there is not an imminent threat. Indeed, we need look no further than the very sort of case
that has inspired the current debate: the woman who has been repeatedly abused in the past and has no alternative for protecting
herself against future harm than to attack her abuser preemptively. It is true that in general the further off in the future the threat is, the
less likely it will be necessary to act now. However, this relation is a matter of degree, not of intrinsic connection. Sometimes the best
or indeed the only time to act defensively is before the threat ripens into an imminent danger, and in such cases it is perfectly
reasonable to assert that it is necessary to act now, rather than risk disaster by waiting too long. Indeed, this is precisely how some
commentators interpret the case of Judy Norman: that in her judgment, it was necessary to act decisively, as the police were unable to
help her, and to wait until the moment of attack by her husband would be to risk serious abuse or even death if she did not take the
opportunity to act preemptively. The question then is how to handle cases where necessity and imminence diverge.
According to the Proxy Thesis, the use of force by the individual should be permitted whenever it is necessary, even if the threat is not
imminent. It would be simply absurd to deny a person the right to defend herself where force was necessary, based on a rigid,
formalistic adherence to a requirement of imminence. The problem for the Proxy Thesis, however, is that it fails to recognize how in
fact our legal system handles cases where imminence and necessity diverge. Where there is the necessity for the use of force, but no
imminent threat, the individual is not permitted to resort to force herself. This does not mean she must passively surrender to the
threat, or wait until it becomes imminent before she can act; rather, the law permits her to turn to the authorities for protection, i.e.,
call the police. Crucially, the lack of an imminent threat does not entail that the police or courts are prohibited
from using force (or the threat of force) as necessary to protect the individual. The authorities may use all
necessary and proportionate force to protect the woman, including for example arresting the abuser, or
issuing a protective order (backed by the threat of force). Thus we have identified a function for the imminence
rule that is wholly distinct from its role as an indicator of necessity: it establishes a strict division of the
right to use force. The individual may use force only when such force is necessary and the threat is
imminent; the state however may use force when it is necessary, even if the threat is not imminent (assuming
proportionality and other requirements are satisfied). Just why there exists this division of labor has, of course, not yet been
established. But the Proxy Thesis fails to recognize this division, and the crucial role of imminence in
establishing the division, and hence must be rejected.
Planet Debate
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Imminence Requirement Key to Maintaining State Monopoly

on Violence/Force
IMMINENCE RULE GROUNDED IN POLITICAL NECESSITY FOR STATE TO MAINTAIN
MONOPOLY ON FORCE NOT GROUNDED IN MORALITY
The central thesis of this essay is that the imminence rule is independent of the necessity rule, and that it derives
not from morality but from political theory. As so often, George Fletcher correctly grasps this point: "the requirement
properly falls into the domain of political rather than moral theory. The issue is the proper allocation of
authority between the state and the citizen." Fletcher here invokes what is traditionally called the "Public Authority"
restriction on the use of force. The basic idea is that the state claims a monopoly on force, under which no individual
or non-state group is permitted to resort to force without the state's authorization. There is, however, one
major exception to the societal monopoly on violence. Where the danger is present and immediate, and there is no
time to resort to a central authority, the individual is permitted to resort to force without seeking the prior
authorization of the state. Self-defense thus remains a private right for just this reason. It is the one exception to
the Public Authority requirement, on the grounds that the individual cannot reasonably be expected to submit passively to selfdestruction. But all preemptive force--before there is an imminent threat--and punitive or restorative force--after the
threat has ceased to be imminent-belongs entirely to the authority of the state.
But why this allocation of authority? To understand it, it will be necessary to take a brief historical tour of the origins of the
imminence rule. The restriction is quite old, dating back at least to ancient Roman law. As Frederick Russell explains in his classic
work The Just War in the Middle Ages, though Roman law recognized a fundamental right of self-defense against
unjust violence, it limited the conditions for exercise of the right by the concept of incontinenti. This means, as
Russell says, the "immediate repulsion of a violent attack on one's person . ... By contrast, repulsion of violence ex
intervallo, after a delay, was considered culpable." It is less than fully clear just what "immediate" meant for the Romans. For some
commentators this meant self-defense was limited to the same day as the attack; for others, it could take up to a year, so long as the
victim did not interrupt his efforts by turning to other matters. The rationale for this rule, as Russell interprets it, was to
distinguish sharply between permissible defense and impermissible vengeance, and thus to avoid protracted
violence of the feud or vendetta. Administering vengeance was the province of the court system, not the
individual. Thus Placentinus, arguing that defense must take place on the same day, justified this restriction on the grounds that a
day was sufficient time to summon help from the authorities (though why others such as Azo considered the period of imminence to
be as long as a year is less clear). In any case, the fundamental justification for the permission to resort to private violence in selfdefense was that the public authorities would not be able to protect the individual against an immediate attack. Cicero's famous
defense of Milo (52 BCE) eloquently expresses this position: "When arms speak, the laws are silent, they bid none to await their word,
since he who chooses to await them must pay an undeserved penalty ere he can exact a deserved one."
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Imminence Requirement Key to Maintaining State Monopoly on Violence/Force

IMMINENCE REQUIREMENT KEY TO STATE MONOPOLY ON VIOLENCE THE
CRITICAL ELEMENT TO A STABLE WORLD ORDER
In practice, this limitation was ineffective throughout much of the Middle Ages, given the lack of political unity, and the waging of
"private war" was a persistent problem. The state monopoly on force, with the sole exception for individual self-
defense against an imminent threat, only gradually became established during the crucial formative period
of the modern world order in the sixteenth and seventeenth centuries, the period of "transition from feudal Europe to the
modern Europe of sovereign states." Essential to this development was the elimination of "private war" by
channeling it into the modern idea of self-defense.
The many jurists and philosophers who contributed to this modern synthesis included Francisco Vitoria (1485-1546) and Alberico
Gentili (1552-1608), but especially Hugo Grotius (1583-1645). Grotius, writing during the devastating European wars of religion,
sought a secular foundation for social order, based on natural law principles rather than Christian doctrine. His great treatise The
Rights of War and Peace (1625) raised Seneca's famous question: "Why do we restrain homicide, and the murder of individuals, but
glory in the crime of slaughter, which destroys whole nations?" That is, why do we permit nations to wage war, but
restrict individuals from using violence? Grotius' answer is that wars are only permissible when they are for a just cause.
But the difference between nations and individuals is that nations are in effect in a state of nature, not of civil law: "where the power
of law ceases, there war begins." War may be the only way nations have to vindicate their rights. In contrast, for
individuals in civil society, "there are methods in law to prevent intended injuries, as well as actions for
those actually [i.e., already] committed." Thus individuals are not permitted to resort to force to vindicate their
rights, because the state exists for that purpose. The only exception to this: "when our lives are threatened
with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided." When under an immediate
threat, the individual is unable to invoke the protection of the state, and so has entered what is in effect a state of "private war,"
justifying him in using extreme force. While we today no longer recognize the idea of "private war," we have inherited this rule of
self-defense, grounded in the essential limitation to cases of imminent threat, where government assistance is not available.
The imminence rule thereafter became a fixture in the discussions of the private resort to violence.
Pufendorf's On the Duty of Man and Citizen (1673) articulates this same principle, that persons who are subject to civil authority are
severely limited in their right of self-defense:
But those who are subject to civil government are only justified in using violence in self-defense when time
and place do not allow appeal to the assistance of the magistrate to repel an injury by which life or some
irreplaceable good, as valuable as life itself, is thrown into immediate danger . But this is confined to repelling the
danger; vengeance and a guarantee against attack in the future must be left to the judgment of the
magistrate.
John Locke's Second Treatise of Government (1690) reiterates the argument:
Thus, a thief whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill when he sets on me to rob
me but of my horse or coat, because the law, which was made for my preservation, where it cannot interpose to secure my life from
present force, which if lost is capable of no reparation, permits me my own defense and the right of war, a liberty to kill the aggressor,
for remedy in a case where the mischief may be irreparable. Want of a common judge with authority puts all men in a state of Nature;
force without right upon a man's person makes a state of war both where there is, and is not, a common judge.
And the eighteenth-century French philosopher Montesquieu, in The Spirit of the Laws (1748), held that:
Among citizens, the right to natural defense does not carry with it a necessity to attack. Instead of attacking, they
have the recourse of the tribunals. Therefore, they can exercise that right of defense only in cases that occur so
suddenly that one would be lost if one waited for the aid of the laws.
William Blackstone's extraordinarily influential Commentaries on the Laws of England (1764-1769) stated the imminence
rule as part of English law:

This right of natural defence does not imply a right of attacking: for, instead of attacking one another for injuries past
or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this
right of preventive defence, but in sudden and violent cases; when certain and immediate suffering would be the consequence
of waiting for the assistance of the law.
And following Blackstone, the imminence restriction first starts appearing in legal treatises in the late eighteenth century, where it has
remained ever since, at least until today.
Planet Debate
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Imminence Requirement Key to Maintaining State Monopoly on Violence/Force

GOVERNMENT MONOPOLY ON USE OF VIOLENCE/FORCE CRITICAL TO FUNCTIONING
SOCIAL ORDER
This particular allocation of the authority to use force is a response to the fundamental political concern of
regulating and controlling the use of violence in society. The first task of government is providing security
to its citizens; internal security is no less important than external security. The self-defense rules developed in order to
control private violence, which posed a constant threat of internal anarchy (nor was the problem of violence limited
to the "barroom" paradigm of two strangers confronting each other in a public place, as Cynthia Gillespie and other battered women
advocates suggest). As Grotius and others recognized, the deeper moral and political problem is the need to ensure as
far as possible the objectivity and disinterest of those who are authorized to use force . Thus Grotius declares, "it
is much more conducive to the peace of society for a matter in dispute to be decided by a disinterested
person, than by the partiality and prejudice of the party aggrieved ." The Public Authority criterion thus ultimately
rests on the venerable natural law principle (also dating back to ancient Rome) that no one should be a judge in his own
case; the decision to use force against another person must be made by an objective and disinterested
authority. We go to great lengths to ensure the objectivity of such decisions: independent judges, unbiased juries, strict rules of
evidence and procedure, the right to appeal, etc. The use of force must be justified by an objective authority in a
position to decide without bias or interest in the case. Thus the state reserves the right to the use of
retaliatory (punitive) force against past harm, as well as preemptive/preventive force against future threats.
The single exception to this principle is where the immediacy of the threat rendered it impossible to resort
to external protection, and thus licensed self-help. Even in such cases, notably, the state has always reserved the right to be the
arbiter after the fact as to whether the defensive force used was justified from an impartial perspective. Note that this analysis suggests
a pragmatic standard for defining the imminence restriction: a threat is imminent when there is insufficient time to enlist the aid of the
authorities to protect oneself.
STATE MONOPOLY ON VIOLENCE JUSTIFIED STATE IN MORE OBJECTIVE POSITION

TO ASSESS THREATS THAN BATTERED WOMEN
It bears emphasizing that the very rationale for a bright-line rule (or at least as bright a line as can reasonably be drawn) in
the case of violent self-help is to minimize the room for the exercise of human judgment as to when and
how much to impose harm on others in order to protect oneself. Without it, people are likely to
overestimate future risks and to err in the direction of acting preemptively "regardless of cost to others ," as
David Gauthier warns. However, the literature on battered women again does not appear to acknowledge these
inevitable limitations and distortions of human judgment; thus Downs criticizes Lenore Walker: "Nothing in Walker's
writings indicates how we or a jury could divine when a battered woman's perception of danger is not reasonable." Indeed, quite the
opposite: advocates of battered women repeatedly insist on these women's enhanced perceptual capacities to
recognize imminent threats that would not be perceptible to the ordinary person, by entering into a state of
"hypervigilance" which permits them to recognize subtle signs of danger. Yet such claims appear to go far
beyond any documented evidence demonstrating how reliable such abilities are, how many "battered women"
develop them, or how to identify which women have them (Lenore Walker, for example, simply tells us unhelpfully that
"behavioral principles support this conclusion). Elizabeth Schneider, despite repeatedly admonishing us not to generalize about
battered women since each case is unique, insists nonetheless that juries be informed that "the battered woman's prediction of the
likely extent and imminence of violence is particularly acute and accurate." Such sweeping generalizations would in effect
bypass the imminence rule by stipulating the presence of a danger that only the battered woman, with her
supernormal capacities, would be capable of recognizing. No doubt some women do develop such
capacities, but it is of course equally possible that victims of repeated abuse develop the opposite tendency,
and become hypersensitive to signs of danger even where they do not exist, or become subject to the
natural human tendency towards self-serving bias in regards to the use of force against others in selfprotection--i.e., the very reason for the imminence rule in the first place.
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Vigilantism Bad: Threat to Stable Society

VIGILANTISM IS A THREAT TO THE STABLE RULE OF LAW
Am U. J. Gender & L. 141, p. 152-3
Courts have long been threatened by vigilantism. The legal system, fearing vigilantism, claims that retribution is the
objective of the criminal justice system. The Supreme Court, in an opinion supporting capital punishment, stated that the
justice system must express society's outrage at offensive conduct where society asks its citizens to rely on
the justice system rather than resorting to vigilantism. The Court continued:
The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of
criminal justice serves an important purpose in promoting the stability of a society governed by law. When
people begin to believe that organized society is unwilling or unable to impose upon the criminal offender
the punishment they "deserve," then there are sown the seeds of anarchy of self-help, vigilante justice, and
lynch law.
For the courts, evenhanded distribution of justice is paramount in maintaining the justice system and
preventing the arrival of a state of anarchy wherein normally law-abiding citizens become vigilantes. While society may
have revoked the individual's right of private vengeance, when the justice system fails, the individual may still have a "fundamental,
natural yearning to see justice done ... the urge for retribution."
WEAKENING IMMINENCE REQUIREMENT UNLEASHES PRIVATE VIGILANTE VIOLENCE

THAT IS ANTITHETICAL TO A STABLE CIVIL SOCIETY
Finally, we need to address one more indirect attack on the imminence rule: the argument for
"subjectivizing" the perception of imminence. Variously described as "reinterpreting" imminence,
"contextualizing" it, or subjecting it to a "narrative" logic, the idea is the same: should a woman believe she is in
imminent danger, she is justified in resorting to force, whether or not her belief was objectively valid or
even reasonable. At its extreme, this position draws on a postmodernist, relativist theory of "women's ways of knowing," for
example Lenore Walker's notorious claim that a concern solely for facts and rationality reflects "male thinking," whereas to women
"opinions count as much as facts." Most commentators of course avoid such excesses and acknowledge the objective reality of
whether there was an imminent threat or not. Even so, they may adopt equally dubious strategies, such as insisting on individualizing
or subjectivizing the concept of "reasonableness," a strategy that Richard Schopp has rightly criticized as incoherent, since the very
notion of "reasonableness" entails adherence to common, shared standards of inference and evidence-gathering. Alternatively, victim
advocates sometimes suggest eliminating the reasonableness requirement altogether in favor of a purely
subjective standard: if the victim felt in danger (even if there was no real danger), then she was justified in
using force. It is even sometimes suggested that, to the battered person, "the threat always feels imminent"
--thus licensing violence at any time or place, if one accepts the subjective standard of imminence.
But any such radical subjectivization of the law of self-defense, even apart from the moral relativism on
which it is based, overlooks the problem of potential bias in one's perception of the need for the use of force
against others. Indeed, it would legitimize those biases by accepting them as valid legal defenses. Such a
position ignores the idea of responsibility to others, especially when it comes to the use of deadly force;
merely feeling afraid of someone else does not entail the right to shoot him. The criminal law exists in part
to demand that individuals live up to higher standards of moral responsibility than they might otherwise.
Nor would civil society even be possible if each individual were granted a license to resort to vigilante
violence any time he felt in danger. Not only would such a law be subject to gross abuse, but recall that the very reason for
the objective imminence standard in the first place is the natural human tendency to overreact to possible future threats, and to err on
the side of imposing costs on others rather than risk any danger to oneself. It bears emphasizing that the victim of the killing will not
be available to rebut the claim that he was presenting an imminent threat. It is certainly possible to consider unreasonable mistakes as
excusing (rather than justifying) conditions, but even here it is important that the law insist that people aspire to the highest possible
standard of objectivity, particularly when making a decision about taking the life of another. As David Gauthier argues,
A legal system which failed to recognize the right, which failed to recognize the justification each person has to act in her own
protection in the light of imminent danger, could have no valid claim on the allegiance or obedience of those it sought to bring within
its sway. But in recognizing the right, the law brings self-defense within its ambit; while it may not deny the right,
it may and must, of course, delimit it. The right of each person to defend herself is not, and could not be
understood as, a right to do whatever she might allege to be required for her defense. Such a subjectivism
would be altogether corrosive to a legal system.
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Vigilantism Bad: Threat to Stable Society

LEGITIMIZING ABUSE AS A DEFENSE TO HOMICIDE UNDERMINES THE CRIMINAL
JUSTICE SYSTEM
302
Critics of abuse-based defenses argue that abused persons who kill their abusers do not, and should not, fit into any
legally justifiable framework of homicide defense. Critics contend that expanding traditional models of selfdefense to include abused persons who kill their abusers will grossly distort the aims of self-defense as a
justification and encourage self-help rather than resort to the criminal justice system.
LEGITIMIZING THE ABUSE EXCUSE FOR KILLING ONES PARENTS THREATENS
CRIMINAL JUSTICE SYSTEM AND STABLE SOCIAL ORDER
317-8
Professor Alan Dershowitz has echoed the sentiments of the Indiana Supreme Court in Whipple by enumerating
the dangers of what he has termed the "abuse excuse." In his book, The Abuse Excuse: And Other Cop-outs, Sob Stories, and
Evasions of Responsibility, Dershowitz includes Battered Child Syndrome in a double digit list of defenses which place "the victim who is usually dead and incapable of defending himself - on trial" which will lead to "invitations to lawlessness."
Dershowitz cites the case of Lyle and Erik Menendez to discredit the validity of the battered child defense
in parricide cases. Dubbing it the "paradigm of the abusive and successful employment of the abuse
excuse," Dershowitz decries the eighteen and twenty-one-year-old Menendez brothers who killed their parents in their Beverly Hills
mansion on August 20, 1989 in a seemingly premeditated fashion as " "preventive' executioners." Despite evidence that the brothers
planned the murders and had several means of escape available to them, the trial resulted in a hung jury after testimony that they had
been sexually abused by their parents. Dershowitz asserts that outcomes such as this "endanger our collective
safety by legitimating a sense of vigilantism that reflects our frustration over the apparent inability of law
enforcement to reduce the rampant violence that engulfs us."
LEGITIMIZING BATTERED CHILDRENS KILLING OF THEIR PARENTS UNDERMINES
THE JUSTICE SYSTEM AND LEADS TO ANARCHY
321-2
Justice Thomas continues by warning of the inevitable dangers of adopting Battered Child Syndrome as a
justification for the taking of a human life, positing that if judicial recognition of an abuse-based defense
were given, there is reason to fear that the number of individuals seeking to justify their murderous actions
upon similar lines would increase exponentially. The court avoids this feared outcome by refusing to admit the expert
forensic psychiatrist's testimony because it had not "been presented any evidence of any court's acceptance of the science of the
battered child, [and of] what can be predicted from the battered child."
In affirming the trial court's decision to exclude the testimony of the forensic psychiatrist, Justice Thomas looks to the importance of
the reasonable person standard and its foundation in a shared common experience. He states that although many "seem to be
prepared to espouse the notion that a victim of abuse is entitled to kill the abuser, that special justification
defense is antithetical to the mores of modern civilized society." Implicit in this statement is the notion that
if juries acquit victims who kill their abusers, juries are betraying their duty to society. By relieving the
actor of culpability, the jury allows the actor to assume the role of both judge and jury. The actor
circumvents the entire rule of law by being able to decide what amount of abuse must be endured before he or she is allowed
to exact fatal retribution from the abuser. This is what leads Justice Thomas to conclude that expansion of the selfdefense justification would "amount to a leap into the abyss of anarchy ."
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Self Defense Should be Narrowly Construed

SELF DEFENSE MUST BE NARROWLY CONSTRUED DISTINCT FROM PUNISHMENT
Yet the distinction between punishment and self-defense is fundamental . Without a clear understanding of
the conceptual distinction between the two, we would find it hard to explain why it is possible to use deadly
force even in those cases where capital punishment would be out of the question. For example, deadly force is
permissible to defend against rape, but capital punishment for rape would be unconstitutional. When a nation
abolishes capital punishment, as have most European countries, it does not thereby modify its law of self-defense. Also, selfdefense is permissible against unjustified, but excused, aggression. This would not be conceptually tenable
if defensive force were considered an act of punishment. The excused aggressor is never punished for his deed, but he
may suffer serious physical consequences when his aggression is justifiably thwarted.
These five elements of self-defense -imminence, unlawfulness, necessity, proportionality, and intentioninterweave in the standard legislative definitions of legitimate defensive force . Consider the Model Penal Code:
"[Subject to certain limitations] the use of force upon or toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present
occasion."
The requirement of imminence is reflected in the language "immediately necessary . . . on the present occasion." The element of
"unlawfulness" is made explicit; the principle that excused attacks are unlawful is recognized in section 3.11, which explicitly limits
the scope of section 3.04. The phrase "immediately necessary" also captures the necessity of the response. The element of
proportionality is made explicit in section 3.04(2)(b), which limits the use of deadly force to cases of threatened homicide, serious
bodily harm, kidnapping, or rape. The required intention to defend oneself comes through in the pivotal position occupied by the word
"believes" in the drafting of the section.
The word "believes" is so centrally located in section 3.04(1) that it appears that what is at stake is not an actual unlawful attack, but
merely the belief of the actor that an attack is under way. This mode of drafting captures what is in fact a deep misunderstanding about
self-defense in American jurisprudence. The requirement of intention-number five in the list above-has become the
necessary and sufficient condition for justifiable self-defense.

CONSIDERING RELATIONSHIPS OF DOMINANCE CONFUSES THE LAW
The second message of the Menendez trial is that if relationships of dominance are introduced in the context of selfdefense and other claims of justification, the tendency of well-meaning observers will be to repeat the
Mydans mistake: Treating the issue as an exploration of whether a history of abuse and domination justifies
retaliatory action by the subordinated party. In self-defense cases, as they are now tried, this temptation is ever present.
There is no reason to confuse the law even further by inviting arguments about whether a history of
domination could justify striking back by the victimized person.
WEAKENING SELF DEFENSE LAW TO ACCEPT NON-CONFRONTATIONAL KILLINGS OF
ABUSERS UNDERMINES SOCIETYS MORAL VALUES AND CONDONES PRIVATE
HOMICIDAL VENGEANCE
The temptation is to say that a nonconfrontational "self-defense" homicide is morally justifiable. Many individuals, including many of
my own criminal law students each year, express this opinion. And, in the past two decades, legal advocates for battered
women have sought, albeit with only minimal appellate-court success so far, to convince courts to permit battered
women (at least, those suffering from battered woman syndrome ), who kill in nonconfrontational circumstances, to
assert the defense of self-defense.

The thesis of this Commentary is that the proposition that a battered woman is justified in killing her sleeping
abuser, although well-meaning, is wrong, and that any serious effort to expand self-defense law -- for
battered women but also, presumably, for others -- to permit such killings is a "reform" society ultimately will
regret. Although there is reason to reform -- and expand -- self-defense law, I fear that the result of expanding self-defense
law to the extent required to justify the killing of a sleeping abuser would be the coarsening of our moral
values about human life and, perhaps, even the condonation of homicidal vengeance.
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BROADENING SELF DEFENSE TO ALLOW PARRICIDE BY ABUSED CHILDREN
UNDERMINES IT
Lauren E. Goldman, JD Candidate, 1994, Nonconfrontational Killings and the Appropriate Use of
Battered Child Syndrome Testimony: The Hazards of Subjective Self-Defense and the Merits of Partial
Excuse, Case Western Reserve Law Review, 45 Case W. Res. 185, p. 199-201
As a psychological disorder, battered child syndrome is an inherently subjective phenomenon which cannot
be included in an objective analysis of the necessity of action and imminence of harm required to support a
claim of self-defense. In applying a reasonableness standard, the attributes of the individual are abstracted into those of an
average member of society. While a defendant's physical attributes may be included in the calculus of a reasonable person, mental and
emotional characteristics, including clinically recognized psychological disorder symptoms, are not. Thus, in the case of a battered
child defendant, his lesser height, weight, and physical strength should be considered in judging the reasonableness of the killing, but
his unique perceptions as affected by battered child syndrome should not.
Admittedly, the standard for self-defense in states utilizing an objective test is not wholly devoid of subjective considerations. The
objective test considers how an "ordinary, intelligent, and prudent" person in the defendant's situation would react to determine if the
defendant's self-defense claim was reasonable. For the purpose of this inquiry, the "situation" may include the defendant's prior
knowledge of the victim's propensities for violence, as well as the victim's actual history of abuse itself. Although the concept of
the defendant's situation does introduce an element of subjectiveness into the inquiry, it should not extend
to encompass the defendant's psychological and emotional characteristics. To do so would be crossing the
line into the law of those few states utilizing a wholly subjective standard for self-defense.
In such states, "an accused's actions are to be viewed from the standpoint of a person whose mental and physical characteristics are
like the accused's and who sees what the accused sees and knows what the accused knows." This standard clearly would incorporate
the perceptual irregularities caused by battered child syndrome, because it would "allow[] the jury to judge the reasonableness of the
accused's actions against the accused's subjective impressions of the need to use force rather than against those impressions which a
jury determines that a hypothetical reasonably cautious person would have under similar circumstances." Consideration of
battered child syndrome and its effect on the defendant's perceptions is consistent with the subjective
standard even in a nonconfrontational situation because the jury only has to believe that the defendant
suffered from the syndrome and believe his testimony that his perceptions were affected in such a way as to
make the harm imminent and the killing necessary.
Incorporating the defendant's altered perceptions into the objective standard, however, proves inherently inconsistent. In the case of
a nonconfrontational killing, despite expert testimony explaining how battered child syndrome affects an
individual's perceptions, the jury has no meaningful way to determine whether a particular battered child
defendant's belief in the imminence of danger and necessity of deadly force was reasonable. The inquiry is
too subjective and specific to an individual defendant to impose an external standard . At best, the jury can listen
to the expert testimony and believe the defendant's version of what he perceived and what he believed were the implications.
However, this reduces the objective standard to one which is wholly subjective.
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WEAKENING SELF DEFENSE LAW TO INCLUDE BATTERED CHILD SYNDROME
UNDERMINES SYSTEMS RESPECT FOR THE SANCTITY OF LIFE
Excuse, Case Western Reserve Law Review, 45 Case W. Res. 185, p. 203
Beyond circumventing the statutory requirements in the overwhelming majority of states, the use of a de facto subjective
standard through the introduction of battered child syndrome testimony unacceptably expands the doctrine
of self-defense. This expansion would infringe on the premise of our criminal law system that the
preservation of life is an important value and that the taking of a life will be exempt from criminality and
punishment only in a narrow, societal-determined set of circumstances.
ALLOWING BATTERED CHILD SYNDROME AS A GROUNDS FOR SELF DEFENSE
UNDERMINES SANCTITY OF LIFE AND LEGITIMIZES PRIVATE VENGEANCE
The introduction of battered child syndrome testimony and the resultant subjective standard of self-defense has
disturbing consequences for the premise that because preservation of human life is an important value, the
taking of a life will be exempt from criminality and punishment only in a limited, societally determined set
of circumstances. Removing the external, objective restraints imposed by the imminence of harm required
to support a claim of self-defense defeats several interwoven policies that are the foundation of a narrow
self-defense doctrine: the prevention of preemptive strikes, self-help, and retaliatory killings. Only by
excluding battered child syndrome testimony and maintaining the integrity of an objective standard of
imminence can society be sure that self-defense claims in nonconfrontational situations are rooted in
necessity rather than retribution.
MUST STRICTLY CONSTRUE IMMINENCE REQUIREMENT ALTERNATIVE IS TO
ADVOCATE PREEMPTIVE STRIKES AS A SOLUTION TO DOMESTIC VIOLENCE
The danger of preemptive strikes is particularly acute in the unique situation of the battered child. Allowing self-defense claims
based only on subjective imminence permits the battered child caught in a cycle of abuse to kill his or her
abuser at any time in anticipation of the near-certain abuse that will occur in the future and then claim
justification.
This result is disconcerting because society should not advocate the preemptive strike as a solution to
domestic violence problems. Society should not deprive an individual of the protection of the self-defense doctrine simply
because he or she happens to suffer violence at the hands of a family member rather than a stranger. However, neither should it
sanction killing unless the defendant is confronted with a critical, objectively reasonable imminent
confrontation. The failure to adhere to a strict standard of imminence implicit in the introduction of testimony about the child's
distorted perceptions results in a dangerous condonation of the preemptive strike.
SHOULD NOT VIEW KILLING ABUSERS AS JUST ENCOURAGES OTHERS TO DO IT

These distinctions are not always susceptible to neat categorization. Insanity, which sounds like a mitigating factor, may be a
complete legal excuse. A mistake about self-defense may sound like an excuse, but if the mistake is a reasonable one, the law treats
it as a justification. (If it is an unreasonable mistake, it may be a mitigation). But at its core, the distinction among
justifications, excuses, and mitigations is an important one that is becoming unfortunately blurred by some
recent excuses. For example, the battered woman syndrome is generally introduced as part on self-defense,
which is a complete justification. Yet many believe it should be regarded as a mitigating factor or, at most,
as an excuse, since we do not want to encourage abused women (or children) to take the law into their own
hands. We may want to excuse the conduct in extreme cases, but we surely dont want to justify it.
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ABUSE EXCUSES PLACE THE VICTIM ON TRIAL TO LEGITIMIZE VIGILANTE JUSTICE

At bottom, the subtle message of these abuse-excuse defenses is that the real criminal is the dead victim and
the defendant performed a public good by dispatching him. Thus, the abuse excuse places the victim of the
killing or maiming on trial generally in absentia and if the defense lawyer can persuade the jury that he or she
had it coming, there is a chance that the jury will disregard the established rules of self-defense and take
the law into its own hands by acquitting the defendant or reducing the charges.
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AT: Societal Failure to Protect Domestic Violence Victims

Justifies Relaxing Self-Defense Standards
LEGITIMIZING ABUSE EXCUSES UNDERMINES EFFORTS TO INCREASE SERVICES AND
LAW ENFORCEMENT FOR ABUSE VICTIMS
Nor does the acceptance of abuse excuses really do anything constructive about addressing the very real
and terrible problem of abuse. Our society must confront that issue directly, by creating more accessible
shelters for battered women, abused children, and the abused and battered elderly. The police and the courts must
be required to give high priority to what is now all too frequently ignored or denigrated as family or domestic disputes. These are
real crimes.
But one wrong does not justify another. Allowing victims of abuse to invoke an abuse excuse, while doing
nothing to prevent the underlying abuse, is little more than symbolism on the cheap . We appear to be recognizing
the problem of abuse, while doing nothing to break the cycle of violence. Indeed, encouraging victims of abuse to kill and
then to raise the abuse excuse, instead of societys spending money and devoting significant societal
resources to preventing abuse, allows us to pretend we are confronting the problem, while perpetuating the
very cycle it is supposed to break.
The law should do more to facilitate the separation of the abuser from the abused by removing the abuser and preventing recurrence
of the abuse. Taking the law into ones own hands should be a last resort, not a preferred solution. The abuse
excuse, coupled with phony rhetoric and statistics about the futility and danger of leaving, sends precisely the
wrong message. It is little more than a rhetorical, feel-good, cheap, short-term nonsolution to a complex and
pressing societal problem that deserves real solutions, high priority, and significant allocation of resources .
FAILURE OF THE STATE TO PROTECT THE ABUSED PERSON DOESNT JUSTIFY

WEAKENING SELF-DEFENSE REQUIREMENTS
In cases like Norman, however, an additional element seems to influence those who seek to relax the law in favor
of the battered wife who strikes back. The political issue at stake in interpreting the requirement of imminence is whether the
state's authority to keep the peace should yield to the individual's authority to use force in self-protection. The argument is often
made that in these cases, the state fails to exercise its protective function . Judy Norman in fact sought
protection from social agencies and she failed to receive it. In other cases, the police fail to intervene to
protect those who are victimized at home. In these situations, where there is a gap between the theory of
state protection and the reality of police indifference, it becomes difficult to assess whether the courts of the
state should be required to recognize a broader than usual right of self-defense. The problem, it seems, is to
formulate a precise test of how badly the police have failed and to determine a proportionate adjustment in
the law of self-defense.
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AT: Societal Failure to Protect Domestic Violence Victims Justifies Relaxing SelfDefense Standards
ARGUMENT THAT STATE FAILURE TO PROTECT JUSTIFIES EXEMPTION FROM STATE
MONOPOLY ON VIOLENCE REQUIRES A HIGH BAR OF FAILURE
However, any individual or group claiming a special exemption from the societal monopoly on force must meet
a very high standard indeed. No society, of course, can ever be even close to perfectly effective in preventing
illegal violence and guaranteeing justice, nor is the imminence restriction premised on any such Utopian
ideal. The declaration of a return to a "state of nature" is an extraordinary claim, appropriate only in the
most extreme and unambiguous circumstances. The classic case is the true state of nature where there is no
effective state presence at all and hence no access to judicial procedure, for example, as Hugo Grotius explains, "on
the seas, in a wilderness, or desert islands, or in any other place where there is no civil government." More pertinent to the
battered woman, however, are two other kinds of cases. First, in kidnap cases where the victim is wholly in the
power of her captors, it is widely accepted that, at least in some cases, a captive can use deadly force
against her captor even in the absence of an imminent threat. Second, in cases where the state
systematically and deliberately denies legal protection entirely to an individual or a group (for example, black
slaves in the antebellum South or Jews in Nazi Germany), there is a strong case for declaring a return to the right to
private violence. The question for us then is whether the situation of battered women can be considered a
return to the state of nature on either of these two grounds.
BATTERED WOMEN DONT MEET THE EXTREME CASES THAT JUSTIFY RELAXING
IMMINENCE REQUIREMENT/PRESERVING STATE MONOPOLY ON VIOLENCE
It is in fact frequently suggested that battered women are in situations amounting to hostage or captivity ,
given the difficulties for women trying to leave an abusive relationship, including threats of retaliation if
they try to leave. Martha Mahoney, for example, argues that a batterer's threats against a woman create an
"imprisoning effect" that provides a "persuasive analogy" with "hostages or prisoners of war," hence helps shift
the "paradigm" of the battered woman to the "image of a hostage resisting her own death." It is true that, where a woman is genuinely
held captive by her abuser with no possible escape or recourse to the authorities, she would legitimately be entitled to use force even
absent an imminent threat. However, one should be cautious of relying on analogies or paradigms as the basis for
allowing homicidal self-help. The woman who is literally held captive by her abuser and is unable to leave or call for help is in
the state of a kidnap victim, and would be justified in using preemptive force to free herself. But difficulty in leaving is not
equivalent to genuine captivity; as Ferzan explains, a woman is not a "hostage" simply "because social and
economic factors make leaving more difficult." Donald Downs similarly criticizes Lenore Walker and Judith Herman for
using the "concept of captivity loosely, rendering it applicable to all or most battering relationships"; for example, " financial
dependence or emotional dependence cannot" constitute captivity, he warns, "unless we unwisely stretch the legal
notion of captivity or being kidnapped." It is doubtful whether we want juries making highly subjective judgments about what "image"
fits a battered woman, for the tendency would be towards an inevitable loosening of the standards for the use of force, and hence a
substantial erosion of the imminence rule.
Others have suggested that battered women should be exempted from the imminence rule on the grounds of
the wholesale denial of legal protection to battered women in our society. It is of course not at all obvious who
comprises this group: all women who have ever been physically struck (or suffered psychological or sexual abuse, as Lenore Walker
maintains)? All abuse victims whatever, male or female? Only those women who have been subject to repeated beatings? Only those
women who are unable to leave the relationship, for whatever reason? Only those who have tried to avail themselves of the authorities
but been refused? But even beyond the problem of delimiting the class of those exempt from the rule, there is a deeper issue here: the
analogy with cases of total and systematic exclusion (slaves, Jews in Nazi Germany) is highly questionable .
Indeed, given the extraordinary attention paid to protecting battered women since the issue became
prominent three decades ago-including the passage of domestic violence reform statutes in all fifty states, the federal Violence
Against Women Act, statutes authorizing mandatory warrantless arrests for misdemeanor assaults in domestic violence cases,
specialized domestic violence courts in some states, statutes authorizing expert testimony on "battered women's syndrome," mass
clemencies for convicted battered women killers (including twenty-five women freed in Ohio in 1991), and even the rise of an entire
new tort for battered women--it would be difficult to defend the claim that women in general, or abused women
in particular, are systematically excluded from the protection of the law . One can of course acknowledge
the seriousness of the problem of domestic violence and the need for the government to do much better in
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155
protecting victims of abuse, without resorting to the "nuclear option" of declaring that battered women are
in a state of nature and may resort to any force they see fit against their abuser.
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156
Violence Bad
PARDONING BATTERED WOMEN CONVICTED OF HOMICIDE IS AN ENDORSEMENT OF
VIOLENCE
It has also been alleged that pardoning battered women who kill sends the wrong message to a society that
already seems to endorse violence. Lawrence Sherman, professor of criminology at the University of Maryland and president
of the Crime Control Institute of Maryland believes that
this country has an epidemic of homicide. Kids under age 10 are starting to kill each other. The
rate of murder by
young people has doubled in the last five years. Any message from somebody of the stature of the governor
of Ohio that says a whole class of killers should be forgiven without having to do their jail time is just one
more way that society says it's OK to kill people.
Although Professor Sherman agreed that battered women often deserve better treatment by the courts, he believes that once
they are convicted they should serve their time.
VIOLENCE IS NEVER THE MORAL OPTION
Howard Zinn, Fellow at Harvard, 1990, Declarations of Independence, p. 289-90
All of us, therefore, as we approach the next century, face an enormous responsibility: How to achieve justice without massive
violence. Whatever in the past has been the moral justification for violencewhether defense against attack,
or the overthrow of tyrannymust now be accomplished by other means.
It is the monumental and tactical challenge of our time. It will make the greatest demands on our ingenuity, our courage, our patience,
and our willingness to renounce old habitsbut it must be done. Surely nations must defend themselves against attack, citizens must
resist and remove oppressive regimes, the poor must rebel against their poverty and redistribute the wealth of the rich. But that must
be done without the violence of war.
Too many of the official tributes to Martin Luther King, Jr., have piously praised his nonviolence, the praise often coming from
political leaders who themselves have committed great violence against other nations and have accepted the daily violence of poverty
in American life. But Kings phrase, and that of the southern civil rights movement, was not simply nonviolence, but nonviolent
direct action.
In this way, nonviolence does not mean acceptance, but resistancenot waiting, but acting. It is not at all passive. It involves strikes,
boycotts, noncooperation, mass demonstrations, and sabotage, as well as appeals to the conscience of the world, even to individuals in
the oppressing group who might break away from their past.
Direct action does not deride using the political rights, the civil liberties, even the voting mechanisms in those societies where they
are available (as in the United States), but it recognizes the limitations of those controlled rights and goes beyond.
Freedom and justice, which so often have been excuses for violence, are still our goals . But the means for
achieving them must change, because violence, however tempting in the quickness of its action, undermines those
goals immediately, and also in the long run. The means for achieving social change must match, morally,
the ends.
It is true that human rights cannot be defended or advanced without power. But, if we have learned anything useful from the carnage
of this century, it is that true power does notas the heads of states everywhere implore us to believecome out of the barrel of a
gun, or out of a missile silo.
Planet Debate
157
AT: Societal Failure to Protect Domestic Violence Victims Justifies Relaxing SelfDefense Standards
CAN NEVER ACHIEVE JUST ENDS THROUGH VIOLENT MEANS
Leroy Pelton, Professor Psychology-Wayne State University, 1974, The Psychology of Nonviolence, p.
55-6
Power is not amoral. The type of power used to gain certain ends, however humane those ends may be, can itself be inhumane.
Cameron (1970, p. 24) has said:
Violenceis centrally tied to the notion of human harm and commonly stands in need of justification , since
it would seem absurd to advocate the harming of human beings.
Violence stands in need of justification through the ends it pursues (Arendt, 1969, p. 51) perhaps because it is
often regarded as intrinsically inhumane and not merely because it is (often) instrumental in nature, as Arendt argues.
Nonviolence does not permit of means that are in themselves inhumane and that therefore stand in need of
justification through ends. Although the philosophy of nonviolence rejects violence solely on moral grounds
(viz., on the premise that the violent act is intrinsically inhumane), it lay well be that, as indicated before, power is not indifferent to
the ends for which it is used.
Arendt (1969, p 80) has said that the danger of violencewill always be that the means overwhelm the end.
Advocates of nonviolence have often maintained the belief that the end is pre-existent in the means (King, 1967, p. 71). Indeed, the
power of nonviolence is, ideally, power that already begins to build and set the example for what is to be. What it promises to achieve
is not extrinsic to what it is. As Shridaharani (1939, p. 316) said: The means should be the end in the process and ideal
in the making. The nonviolent activist believes that he cannot claim to seek a world of peace and yet not practice peace, or speak
of a future social justice while perpetrating the injustice of violence in the present. Perhaps, if our goals is a world in which
conflicts are resolved through reason, we must initiate rational discussion; if our goal is peace, we must
behave peacefully; if our goal is justice, we must behave justly; and if our goal is human freedom tempered
by social responsibility, we must behave as free and responsible individuals. Nonviolence is active love; it is
humane power, power that does not do injustice or multiply evil. This is the ideal that the nonviolent activist, as imperfect
as he is, strives to approximate. In succeeding chapters we shall see to what extent the above prescriptions for action are reflected in
the various forms of nonviolent power. Let us first look more carefully at the concept of social power and at the various forms that
power can take in general.
VIOLENCE DEHUMANIZES SOCIETY

Ho Wong Jeong, Professor of Peace Studies- George Mason University, 2002, Approaches to Peace, p.
105
The significance of reconciliation is further underlined by an appreciation of how the trauma left behind by large-scale
violence is passed from one generation to the next, perpetuating cycles of violence. Conflict, which is deeply
rooted in culture and consciousness, has its own affective dynamics, fostering militarism and the glory of killing
the other (Galtung, 1998a, p. 3). While despair, historical falsification, stereotyping, and dehumanization
affect the behavior of the victims, distrust and indifference characterize the offenders mental world .
Reconciliation, therefore, has to change these organizing principles which determine the way people choose to act in order to delegitimize violence as a means for dealing with conflict (Lunsden, 1999, p. 3).
VIOLENCE IS UNJUSTSHOULD BE AVOIDED

Leroy Pelton, Professor Psychology-Wayne State University, 1974, The Psychology of Nonviolence, p.
16
These principles of ahimsa, relative truth, and self-suffering underlie and guide nonviolent action and the nonviolent waging of
conflict.
Nonviolence is action-oriented; it does not avoid conflict but seeks to confront and resolve it. It acknowledges,
I think, that there are not only actions (such as violence) that are themselves unjust and therefore must be avoided
but that sometimes inaction can contribute to justice. Those of my generation have seen the crime of silence. The nonviolent
activist holds the attitude that we are responsible for other human beings for they are all our brothers and
sisters.
VIOLENCE BREEDS MORE VIOLENCE ANY ADVANTAGES ARE ONLY TEMPORARY
G. S. Herbert, Philosophy Sri Venkateshwar University, 1971, Non Violence and Social Change, p. 1545
It is usually thought that violence brings about quick changes whereas non-violence or love entails a slow process of transformation.
This point requires careful examination. It appears that by threat of force we can get things done with speed. But the question is,
whether the objectives are achieved, especially in social matters?
Planet Debate
158
Violence leaves behind rancour, suffering, and a burning spirit of revenge. Violence breeds violence and
there is no end to it. Gandhi says, I object to violence because when it appears to do good, the good is
only temporary, the evil it does is permanent. Anything achieved through violence is only temporary . It gives
apparent success only. If we are satisfied by such apparent success we can rely on violence.
Further a careful analysis reveals that even violence cannot bring about quick results. Even an armed insurrection does not succeed in
the first rush or with one effort. In the prolonged war for a cause, there are many skirmishes, battles, and campaigns, and reverses and
successes. Permanent results are obtained only when there is a change of heart. This is true especially in social matters. In a sense,
social reform can never take place through violence. In the context of religious conversion, Kriplani writes, Real
conversion is the conversion of the devotees heart in search of truth. In social matters also conversion of heart is essential. It is
ultimately by appeal to see the truth and by love that social reforms can be made a success. So the question of the rapidity of change
involving a particular method loses much of its meaning in matters of social change as there is only the method loses much of its
meaning in matters of social change as there is only the method of non-violence to bring about the change. As Gandhi says, We need
not to be afraid that the method of non-violence is a slow, long drawn out process. It is the swiftest the world has seen for it is the
surest.
Planet Debate
159
Faked Defense
EXCUSING WOMEN WHO KILL ABUSERS MEANS THAT THE DEFENSE WILL BE FAKED
BY OTHERS WRONG TO LEGITIMIZE THIS EXCUSE
In some instances, the battered woman syndrome has been abused by defendants who clearly had options other
than taking the law into their own hands. As one of the nations leading experts in criminal law asked rhetorically: Do
any husbands get killed anymore who dont batter their wives? Any time a defense works, it is quickly
abused by some who killed in cold blood. In other cases, the killing may not be calculated, but the killer
may have resorted to lethal force when other options were available. Though we may be sympathetic with a
childless, financially independent woman who is abused by her boyfriend or husband, a history of abuse does not justify
killing the abuser, regardless of how unsympathetic he may be. The woman in that situation does have
options, unpalatable as they may be. The law requires her to act on those options rather than kill her
abuser. Using the battered woman syndrome in that sort of case is an example of what I call the abuse excuse.
CREATING EXCEPTION FOR BATTERED WOMEN TO KILL ENCOURAGES OTHERS TO
FAKE THIS DEFENSE
There is also a fear among prosecutors and others that women who were not battered are attempting to use battered
woman syndrome as a fake defense. For example, Orlando prosecutor Dorothy Sedgwick is certain that Rita
Collins was attempting to use battered woman syndrome as a fake defense after she killed her husband and
feels sure that justice was done in denying Rita clemency. Rita argued that she was the victim of years of physical and mental abuse
before she filed for divorce and got a restraining order against her husband, and that he continued to abuse her until she shot him.
However, prosecutors "played tapes of [Rita] threatening her husband over the phone and portrayed her as a bitter, unstable woman
who had bought a gun, lured him to the house and murdered him out of jealousy and anger over the divorce." In addition, recent
investigations into the cases of the twenty-five women former Ohio Governor Richard Celeste pardoned
raise doubts as to whether some of the women were actually battered at all. This fear of abuse of battered woman
syndrome presents a convincing argument against clemency for battered women, yet it does not justify excluding all battered women
from the exercise of executive clemency.
KIDS CAN FAKE BATTERED CHILD SYNDROME

Critics have argued that allowing self-defense claims in nonconfrontational situations will give rise to a rash of
vigilante-style killings of slumbering abusers, or even worse, slayings of nonabusive parents by rebellious or
greedy children who then falsely claim abuse in order to avoid criminal sanction.
Planet Debate
160
AT: Killing Private Tyrants/Forfeiture Theory Morally

Justified
MORAL THEORY OF FORFEITURE HAS DISTURBING IMPLICATIONS AND UNDESIRABLE
EFFECTS
Please notice the implications of this moral view. We have decided that a human life is expendable. We can
swat him like a fly and toss him in the garbage without guilt feelings. If we follow the logic of this position,
imagine -- as has occurred -- a battered woman hires a contract killer to take her husband's life, and then seeks to
justify her conduct. No court has allowed such a claim. But, if the death of an abuser is equivalent to throwing out
the garbage or swatting a fly -- if he is not recognized as a human being deserving of the law's protection -- what basis do
we have for prosecuting the woman or, for that matter, the contract killer (or, let's assume, the abused
woman's brother, who acts for reasons of love and not greed) who swats the fly or (switching metaphors)
kills the vermin?

Jan Feb Evidence

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Planet Debate

January/February 2012 L-D Domestic Violence

January/February 2012 LD Topic........................................................................................4

Executive Clemency for Those Killing Abusers Morally Just..........................................63

Insanity Defense Does Not Find Killing a Moral or Just Response................................137

January/February 2012 LD Topic

Many Women In Prison for Killing Abusers

Domestic Violence Homicides High

Domestic Violence Harms

State Response to Domestic Violence Inadequate

allowed offenders to plead to less serious charges.

CANNOT SOLVE VIOLENCE VICTIMS HAVE NO ACCESS TO LEGAL SERVICES

Criminal Justice System Doctrines Unfavorable to Self Defense

Criminal Justice System Doctrines Unfavorable to Self Defense Claims

Self Defense Provides Basis for Moral Justification

Self Defense Means That the Act Is Just/Actor Behaved

Self Defense Means That the Act Is Just/Actor Behaved Responsibly

excuse that reflects the moral ground for exculpation.

Self Defense Means That the Act Is Just/Actor Behaved Responsibly

Law Governing Domestic Violence Victims who Kill Abusers is

DIFFERENCE BETWEEN PROVOCATION AND BATTERED WOMAN SYNDROME

Self Defense Law Fails Women

historically "to the wall," before responding with force.

Self Defense Law Fails Women

SELF DEFENSE LAW DEVELOPED TO MEET THE NEEDS OF MEN

Self Defense Law Fails Women

inherent gender bias in the law of self-defense, rendering it

SELF-DEFENSE LAW AS APPLIED INADEQUATE FOR BATTERED WOMEN

Self Defense Law Fails Child Abuse Victims

CHILDREN KILLING ABUSIVE PARENTS HAVE DIFFICULTY MEETING SELF-DEFENSE

Self Defense Law Fails Child Abuse Victims

CHILDREN MOST DISADVANTAGED BY SELF-DEFENSE STANDARDS

Self Defense Law Fails Child Abuse Victims

Imminence Requirement Biased

COURTS APPLY IMMINENCE IN WAY THAT DISADVANTAGES WOMEN AND IMPOSES

Imminence Requirement Should be Replaced

IMMINENCE SHOULD BE VIEWED AS THE IMMEDIATE NECESSITY OF A RESPONSE

Imminence Requirement Should be Replaced

FAILURE OF THE STATE TO PROTECT BATTERED WOMEN JUSTIFIES RELAXATION OF

Imminence Requirement Should be Replaced

Imminence Requirement Unnecessary

wait until an actual or imminent attack in order to protect herself.

AT: Arguments Against Reforming Imminence Requirement

Deadly Force Against Private Tyrants Morally Justified

Deadly Force Against Private Tyrants Morally Justified

Private Tyranny Worse than Public Tyranny

Private Tyranny Worse than Public Tyranny

Abusers Forfeit Their Right to Life

Retribution/Vigilantism Against Batterers Morally Just

VIGILANTISM PROVIDES MORAL JUSTIFICATION FOR KILLING ABUSERS

Retribution/Vigilantism Against Batterers Morally Just

they may not be bound by the contractarian stricture against self-help.

archetypal vigilante as male may be seen in their portrayal.

AT: Arguments Against Vigilantism

BATTERING SYNDROME DOESNT SPARK VIGILANTISM

AT: Arguments Against Vigilantism

Retributive Theory of Justice: Moral Punishment Requires

RETRIBUTIVE JUSTICE EVOLVES FROM KANTS CATEGORICAL IMPERATIVE

Retributive Theory of Justice: Moral Punishment

Retributive Theory of Justice: Moral Punishment Requires

Retributive Theory of Justice: Moral Punishment Requires

Retributive Theory of Justice: Context of Long-Term Abuse

Context of Abuse Critical to Determination of Desert and Just

JUST PUNISHMENT REQUIRES ASSESSMENT OF DEFENDANTS TRUE CHARACTER