1 ARTICLE THE EXCUSE OF SELF-DEFENSE: CORRECTING A HISTORICAL ACCIDENT ON BEHALF OF BATTERED WOMEN WHO KILL CATHRYN Jo ROSEN* TABLE OF CONTENTS Introduction I. The Theory of Justification II. The Theory of Excuse III. The Law of Self-Defense A. H istory B. The Modern Law of Self-Defense IV. The Battered Woman's Defense V. The Case for Excused Self-Defense Conclusion INTRODUCTION Domestic violence has been a part of American life at least since the first European colonists settled on North American soil.' The phenomenon of wife abuse first encountered public recognition in the mid-nineteenth century when it was bemoaned by feminists who * Assistant Professor of Criminal Justice, Temple University. B.A. Case Western Reserve University; J.D., LL.M. Temple University School of Law. 1. See Oppenlander, The Evolution of Law and Wife Abuse, 3 LAw & POL'Y Q. 382, 386 (1981). Since prehistoric times, society has accepted male use of physical force to achieve dominance over wives and children. Id. at Both English common law and ancient Roman law sanctioned the use of such force. Id. Early English settlers transported tolerance of wife beating to North America. Id. at 386. For a discussion of colonial and pre-civil War treatment of domestic violence in American law, see id. at ; Eber, The Battered Vifes Dilemma: To Kill or To Be Killed, 32 HASTINGS LJ. 895, (1981) (explaining that historical acceptance of wife beating stemmed from concepts of marital privacy and subjugation of wives as property of husbands).
2 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 sought to improve the societal position of women through legal reforms. 2 To some extent these early feminists were successful. Widespread enactment of Married Women's Property Acts improved the legal status of married women. 3 The liberalization of divorce laws allowed wives to obtain divorces on the grounds of cruelty or misconduct based on physical abuse by their husbands. 4 By the 1870s, courts had begun to convict husbands who victimized their wives of assault and homicide. 5 Consequently, public concern about domestic violence was declining by the turn of the century. 6 These nineteenth century victories, however, were largely illusory. The problem of wife beating by no means disappeared. Divorce was not a viable alternative for most women, 7 and judicial recognition that men were no longer legally justified in beating their wives did not readily translate into increased numbers of arrests or prosecutions for spousal assault and battery. 8 Probably as a result of the rebirth of the women's movement in the 1960s, national attention once again has focused on the problem of domestic violence. Programs and legal reforms designed to cure the problem by arresting, prosecuting, deterring, and/or rehabilitating abusers have begun on a number of fronts. Nonetheless, there is no universally acclaimed panacea for this complex social problem, and attempted solutions have seriously challenged the continued vitality of some tenets of American substantive and procedural criminal law See Oppenlander, supra note 1, at 392 (noting that birth of women's rights movement initiated legal restrictions on wife beating). 3. Prior to the enactment of these laws, women could not own property of any kind. C. THOMAS, SEX DISCRIMINATION IN A NUTSHELL 3 (1982). 4. Oppenlander, supra note 1, at Id. at 394. See, e.g., Fulgham v. State, 46 Ala. 143, (1871) (holding that husband's use of force to compel wife's obedience is no longerjustified); Harris v. State, 71 Miss. 462, 465, 14 So. 266, 266 (1893) (repudiating "revolting" precedent allowing husbands to chastise their wives in moderation); State v. Oliver, 70 N.C. 44, 45 (1874) (warning that courts will intervene when husband inflicts permanent injury or shows malicious violence); Gorman v. State, 42 Tex. 221, 223 (1875) (holding husband liable for assault for whipping wife as punishment). 6. Oppenlander, supra note 1, at See Waits, The Criminal Justice System's Response to Battering: Understanding the Problem, Forging the Solutions, 60 WASH. L. REv. 267, (1985) (arguing that stigma and economic consequences of divorce have prevented women from leaving battering relationships). 8. See Eber, supra note 1, at , (noting historical reluctance to arrest and prosecute wife beaters). 9. It is beyond the scope of this Article to explore the multitude of programs that have been created in the past decade or the voluminous literature that has focused on every aspect of domestic violence. See generally Eber, supra note 1, at (discussing remedies available to abused wives); Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HARV. WOMEN'S LJ. 57, (1984) (critiquing use of mediation as mechanism for resolving domestic violence); Schneider, Equal Rights to Trial for lomen: Sex Bias in the Law of Self-Defense, 15 HARV. C.R.-C.L. L. REV. 623, (1980) (arguing that individualization of self-defense law will provide equal treatment for battered women raising
3 1986] BA-rrERED WOMAN'S DEFENSE 13 One aspect of the current legal crisis surrounding domestic violence concerns female victims who strike back and kill their abusers. 10 Often, this resort to self-help results in prosecution of the woman for homicide. American courts and criminal justice officials have a difficult time dealing with these cases because they often involve sympathetic defendants who cannot fairly be blamed for their conduct but who would have no defense if the law was strictly applied. " I One reason the resulting cases are difficult is that they do not fit neatly into the categories of good and evil drawn by the criminal law. Basically, intentional killing is bad unless it is justified. On occasion, the circumstances in which the battered woman killed clearly indicate that the killing was justified in self-defense. In such cases, the woman acted in response to an overt act of aggression by her husband that created an objectively reasonable fear of imminent death or serious bodily harm. 12 Other cases, however, are more difficult. Despite the defendant's long-term victimization, she most likely would not have been killed or subjected to serious bodily injury on the occasion when she killed her abuser. Sometimes the problem arises because the woman perceived actual or threatened force to be deadly when, objectively, it was not.1 3 In other cases, the self-defense claims); Waits, supra note 7, at (favoring modifications to criminal justice system's approach to wife abuse). 10. Domestic violence occurs in a large variety of permutations and combinations. This Article is confined to situations involving females who have been abused by a male with whom they, have a relationship, regardless of whether they are in fact married, living together, separated, or divorced. Thus, although this Article frequently uses terms such as husband, wife, and spouse, the Article is not limited to violence occurring within marriages. 11. Ann Jones suggests that the problem of defending battered women who kill is fairly new only because the women usually were not prosecuted until the middle of the 20th century. A. JoNEs, WOMEN WHO KILL 284 (1980). Accordingly, both the police and the courts have pursued an unofficial policy of noninterference for most of the twentieth century. Id. But cf Wallace v. State, 44 Tex. Grim. 300, 301, 70 S.W. 756, (1902) (reviewing conviction of woman who killed husband after he beat and threatened her). In much less recent history, women who killed their husbands were guilty of treason. See Schneider, supra note 9, at 628, 629 n See, e.g., People v. Reeves, 47 Ill. App. 3d 406, , 362 N.E.2d 9, (1977) (exonerating wife for shooting husband during severe beating); Commonwealth v. Watson, 494 Pa. 467, , 431 A.2d 949, 952 (1981) (determining that long history of physical abuse and husband's attempt to kill wife immediately before she shot him established valid self-defense). See ifa notes and accompanying text (discussing use of deadly force in self-defense). 13. See, e.g., Borders v. State, 433 So. 2d 1325, 1326 (Fla. Dist. Ct. App. 1983) (holding that evidence of defendant's state of mind, relationship with husband, and husband's reputation for violence were necessary to determine reasonableness of defendant's perception of danger); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981) (requiring expert testimony on battered woman syndrome to prove threat of serious bodily harm); State v. Griffiths, 101 Idaho 163, 165, 610 P.2d 522, 524 (1980) (excluding psychiatric testimony to prove that defendant was acting out of fear when she shot her husband); People v. Adams, 102 Ill. App. 3d 1129, N.E.2d 267, 272 (1981) (finding evidence of decedent's intoxication relevant to defendant's self-defense claim); State v. Seelke, 221 Kan. 672, 681, 561 P.2d 869, 875-
4 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 defendant killed in response to verbal threats unaccompanied by any contemporaneous overt physical aggression. 14 The most difficult cases arise when the defendant killed a sleeping or resting victim, 15 or when the defendant engaged in other behavior inconsistent with self-defense.' 6 In the latter half of the 1970s, defense lawyers began to explore avenues to best defend women charged with criminal homicide as a result of striking back and killing their tormentors. The result was the articulation of a theory ofjustification that has become known as the "battered woman's defense."' 7 The defense is designed to persuade the fact-finder that the defendant's status as a battered wo- 76 (1977) (noting that evidence showing that defendant was brutally beaten before shooting husband cast doubt on her intent to kill him); State v. Kelly, 97 NJ. 178, , 478 A.2d 364, (1984) (holding that expert testimony on battered woman syndrome is relevant to reasonableness of defendant's belief in imminent bodily harm); State v. Norris, 303 N.C. 526, , 279 S.E.2d 570, (1981) (allowing defendant to establish imperfect selfdefense regardless of whether she was aggressor or used unnecessary force); State v. Thomas, 66 Ohio St. 2d 518, 521, 423 N.E.2d 137, 139 (1981) (concluding that jury can determine reasonableness of defendant's fear without expert testimony on battered woman syndrome); Commonwealth v Zenyuh, 307 Pa. Super. 253, 256, 453 A.2d 338, 340 (1982) (holding fact that husband was not beating wife at time of shooting did not render wife's perception of imminent physical danger unreasonable). 14. See, e.g., People v. Lucas, 160 Cal. App. 2d 305, 310, 324 P.2d 933, 936 (1958) (holding that verbal threats do not constitute imminent danger); People v. White, 90 Ill. App. 3d 1067, , 414 N.E.2d 196, (1980) (finding that defendant's belief was reasonable that use of deadly force was necessary after husband threatened to beat her); State v. Fultz, 439 N.E.2d 659, 662 (Ind. Ct. App. 1982) (ruling that pointed finger and inaudible threats do not substantiate reasonable basis for fear); State v. Lynch, 436 So. 2d 567, (La. 1983) (justifying shooting after victim threatened to beat defendant); People v. Giacalone, 242 Mich. 16, 19-22, 217 N.W. 758, (1982) (finding that defendant's perception of danger was reasonable after husband threatened to kill her and kept loaded gun next to bed); People v. Tortes, 128 Misc. 2d 129, , 488 N.Y.S.2d 358, (1985) (determining that husband's threat to kill defendant created reasonable fear of imminent danger). 15. E.g., People v. Emick, 103 A.D.2d 643, 653, 481 N.Y.S.2d 552, 558 (1984) (defendant killed sleeping husband following hours of abuse); People v. Powell, 102 Misc. 2d 775, 778, 424 N.Y.S.2d 626, (1980) (defendant killed her ex-husband as he slept after husband had held her at gunpoint), aff'd 83 A.D.2d 719, 442 N.Y.S.2d 645 (1981); State v. Leidholm, 334 N.W.2d 811, 814 (N.D. 1983) (defendant stabbed and killed sleeping husband after night of abuse); State v. Allery, 101 Wash. 2d 591, 593, 682 P.2d 312, (1984) (en banc) (after finding her estranged husband in her home despite restraining order, defendant killed husband as he rested due to prior threats to kill her); State v. Felton, 110 Wis. 2d 485, , 329 N.W.2d 161, (1983) (defendant killed sleeping husband following history of persistent abuse of herself and her children). 16. See, e.g., Ibn-Tamas v. United States, 407 A.2d 626, (D.C. 1979) (pursuit of retreating victim); People v. Minnis, 118 Ill. App. 3d 345, 347, 455 N.E.2d 209, 211 (1983) (defendant dismembered and hid husband's body after killing him); People v. White, 90 Ill. App. 3d 1067, 1069, 414 N.E.2d 196, 198 (1980) (wife pursued retreating husband); State v. Seelke, 221 Kan. 672, 673, 561 P.2d 869, 871 (1977) (after shooting three times, defendant reloaded gun and shot again); State v. Martin, 666 S.W.2d 895, 897 (Mo. Ct. App. 1984) (defendant hired "hit man" to kill her estranged husband); Buhrle v. State, 627 P.2d 1374, 1376 (Wyo. 1981) (defendant hid gun and gloves worn to fire gun after shooting husband through partially open motel room door). 17. There is considerable disagreement as to the most appropriate name for the defense theory. See infra notes and accompanying text (discussing debate over correct characterization of defense).
5 1986] BATrERED WOMAN'S DEFENSE man renders reasonable her belief that self-help was justified. Therefore, the defendant should be acquitted because she acted in self-defense. Sharp debate has surrounded the battered woman's defense ever since the theory's inception. Much of the debate concerns the potential impact the defense may have on the ability of the criminal law to deter battered women from engaging in unnecessary self-help or from killing in revenge or retaliation. 18 Others worry that the defense cannot be confined to battered women and will lead to an undesirable extension of the justification of self-defense to anyone who has a subjective belief that use of deadly defensive force is necessary. 19 The position taken in the debate depends, at least to some extent, upon one's opinion whether the battered woman's defense is simply a specialized application of the rules of self-defense, an extension of the principles of self-defense to particular circumstances in which they otherwise would not be applicable, or an altogether new hybrid defense See, e.g., Acker & Toch, Battered Women, Straw Men, and Expert Testimony: A Comment on State v. Kelly, 21 GRIM. L. BULL. 125, 143 (1985) (arguing that battered woman's defense may cause juries to consider woman's conduct legal); Rittenmeyer, Of Battered Wives, Self-Defense and Double Standards ofjusttce, 9 J. CRUM. JUST. 389, 390 (1981) (asserting that battered woman's defense exploits stereotypes and provides license to kill); Note, Does Wife Abuse Justify Homiade?, 24 WAYNE L. REV. 1705, , (1978) (observing that acquittals of abused wives may sanction retaliation and revenge). Cf. Eber, supra note 1, at 930, 930 n.190 (citing commentators who predict that battered woman's defense will lead to "open season on men"). See also State v. Thomas, 66 Ohio St. 2d 518, 521, 423 N.E.2d 137, 140 (1981) (excluding expert testimony on battered woman syndrome because, inter alia, it would tend to stereotype defendant and would prejudice jury). 19. Rittenmeyer, supra note 18, at ; Note, supra note 18, at It has been suggested that the defense justifies the killing solely on the basis of the victim's evil character. See Acker & Toch, supra note 18, at (suggesting that evidence of battered woman syndrome may lead juries to believe that killing was just). Others see the defense as a "juxtaposition of insanity and self-defense." See Vaughn & Moore, The Battered Spouse Defense in Kentucky, 10 N. Ky. L. REV. 399, 419 (1983). Most commentators, however, emphatically deny that the defense is premised on the theory that the defendant should be acquitted either because of the victim's abusive behavior or because of the woman's abnormal behavior. See, e.g., E. BOCHNAK, WOMEN'S SELF-DEFENSE CASES: THEORY AND PRAcriCE xvii (1981) (arguing that defense should not be construed as vesting unique right to self-defense in battered women); Crocker, The Meaning of Equality for Battered Women Who Kill Men in Self-Defense, 8 HARV. WOMEN'S L.J. 121, 144 (1985) (stating that battered woman syndrome is properly treated as evidence of reasonableness of woman's actions); Comment, Self-Defense: Battered Woman Syndrome on Tial, 20 CAL. W.L. REV. 485, 495 (1984) (contending that battered woman syndrome is not separate defense, but instead is probative of defendant's perception of danger); see also State v. Leidholm, 334 N.W.2d 811, 820 (N.D. 1983) (concluding that evidence of battered woman syndrome goes to reasonableness of defendant's perception of imminent bodily danger); State v. Allery, 101 Wash. 2d 591, 597, 682 P.2d 312, 316 (1984) (en banc) (admitting expert testimony on battered woman syndrome because syndrome is central to claim that defendant's fear was reasonable). They emphasize that the purpose of the defense is just the opposite. The jury must be persuaded that the woman's perception that her life is in danger is reasonable. They argue that any kind of impaired mental state defense is absolutely inconsistent with this approach. One of the primary hurdles to winning a woman's self-defense case is that stereotypical
6 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 Disagreement about the role of self-defense in the legal system and in society as a whole further confounds the debate. Recent years have witnessed demands for broader concepts of self-defense by minority groups in general 21 and battered women in particular. 22 These demands have created considerable tension in the common law approach to self-defense. Simultaneously, a small group of legal academics have been ardently debating the entire structure of common law defenses on a variety of levels. Some scholars simply argue that fair adjudication of affirmative defenses requires adoption of a subjective standard, rather than the traditional objective standard. 23 Others have undertaken the task of systematizing the entire structure of common law defenses. 24 These scholars argue that it is essential to revive the common law distinction between justification and excuse to achieve logic and coherence in the criminal law. The wisdom and usefulness of this endeavor also has provoked substantial debate within the academic community. 25 female traits are often considered to be the antithesis of reasonable. The trier of fact may be more willing to excuse the woman's conduct on grounds of insanity or diminished intellectual capacity than self-defense. The result, however, is less desirable than an acquittal on the ground of self-defense because the former may lead to involuntary civil commitment of the defendant while the latter only mitigates the culpability to a lesser crime. Schneider, supra note 9, at 638. There is an inherent inconsistency in arguing that a person whose perceptions are altered by a psychologically identifiable syndrome is nonetheless reasonable with respect to conduct related to the syndrome. This Article proposes a solution to the dilemma that can lead to complete acquittal for defendants whose perceptions are altered by an abusive relationship, without demeaning all women as unreasonable and, consequently, inferior to men. 21. See, e.g., Cohen, Old Age as a Criminal Defense, 21 CRIM. L. BULL. 5, 6-7 (1985) (analyzing criminal liability of elderly offenders); Ford, In Defense of the Defenders: The Vietnam Vet Syndrome, 19 CRIM. L. BULL. 434, (1983) (exploring post-traumatic stress syndrome caused by military service in Vietnam); see also Donovan & Wildman, Is the Reasonable Man Obsolete? A Critical Perspecuve on Self-Defense and Provocation, 14 Loy. L.A.L. REV. 435, , 462 (1981) (arguing that reasonable man standard should be replaced by one that reflects defendant's social reality). 22. See infra notes and accompanying text (discussing feminists' efforts to modify self-defense theory to meet needs of battered women). 23. See Donovan & Wildman, supra note 21, at 445 (advocating adoption of subjective standard of self-defense that reflects defendant's social reality). See also infra notes and accompanying text (describing changes in "reasonable man" standard when applied to battered women). 24. See G. FLETCHER, RETHINKING CRIMINAL LAw (1978) (analyzing criminal defenses from systematic perspective) [hereinafter G. FLETCHER, RETHINKING]; Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199, (1982) (organizing criminal law defenses). 25. See G. FLETCHER, RETHINKING, supra note 24, at (analyzing criminal conduct and accountability from conventional perspective of justification and excuse); Dressier, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY 421, (1982) (maintaining that sensitivity to justification/excuse distinction will render provocation rules more consistent); Robinson, supra note 24, at 291 (proposing conceptual framework that distinguishes defenses by their effect on liability and punishment); NoteJustification: The Impact of the Model Penal Code on Statutor ' Reform, 75 COLUM. L. REV. 914, (1975) (emphasizing distinctions between excuse and justification). But see Greenawalt, The Peplexing Borders ofjnstifcation and Excuse, 84 COLUM. L. REV. 1897, 1898, (1984) (arguing that
7 1986] BA-rTERED WOMAN'S DEFENSE These two diverse strains of legal developments of the past decade-the very practical aspects of defending battered women who kill and the highly theoretical debate about the entire structure of the common law criminal defenses-have much to offer one another. 2 6 Categorizing self-defense as ajustification rather than as an excuse causes the defense to be defined in narrow terms. This is detrimental to the needs of battered women defendants who kill in nontraditional self-defense situations. Accommodation of the conflicting needs of society and battered women who kill can be achieved by a system of criminal defenses based on a revived distinction between justification and excuse. Similarly, the very real demands battered women make on the criminal justice system illustrate the need to reform and systematize the law of criminal defenses. This Article proposes that classifying self-defense as an excuse will result in more justice for battered women who kill without threatening important values promoted by the criminal law, such as the suppression of private retaliation and the sanctity of human life. The Article will explore first the concepts ofjustification and excuse. Second, it will examine the historical development of the present law of self-defense, the doctrine's general rules, and its classification as a justification. The discussion then will turn to a description of differences between excuse and justification are relevant to legal theory, but have no practical application). Legal scholars do not agree why it is important to distinguish between justification and excuse. Paul Robinson cites concerns over liability of an actor who resists justified or excused conduct and third party liability for assisting an actor as reasons for supporting the distinction between justification and excuse. Robinson, supra note 24, at Glanville Williams believes that the distinction is relevant only for questions of third party liability. Williams, The Theory of Excuses 1982 CRIM. L. REv. 732, George Fletcher believes that the justification/excuse distinction must be made in order to permit consideration of the defendant's blameworthiness on an individualized or subjective basis. Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269, (1974) [hereinafter Fletcher, Individualization]. Peter Alldridge concludes that the distinction is useful in the appraisal of substantive rules of law, including treatment of cumulatively provoked killings. Alldridge, The Coherence of Defences, 1983 CRIM. L. REv. 665, This author disagrees with Williams' assertion that the distinction is relevant for practical purposes only to the liability of third persons. See Williams, supra, at To the contrary, categorization of a defense as a justification or an excuse has significant effects on doctrinal development. See Dressier, supra, at (arguing that distinction between justification and excuse lends consistency to criminal defenses). The distinction must be made in order to consider the culpability of battered women and others who kill on an individualized basis. Fletcher, Individualization, supra, at These two trends have not been isolated completely from one another. The feminist lawyers who conceived the notion of women's self-defense incorporated Fletcher's theory of individualization of excusing conditions. See Schneider, supra note 9, at (demonstrating that Fletcher's theory is necessary to provide equal treatment for battered women claiming self-defense). Fletcher's theory was first articulated in Fletcher, Individualization, supra note 25. See infra note 163 and accompanying text (discussing feminists' application of Fletcher's theory to battered women's cases).
8 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 the battered woman's defense and will evaluate how it has fared under the justification theory of self-defense. Finally, a case will be made for creation of a new defense of excused self-defense that will accommodate many battered women's cases excluded by the justification theory without sacrificing the basic goals of the criminal law. I. THE THEORY OF JUSTIFICATION The prohibitory criminal law suffers from the infirmity of always being overinclusive or underinclusive. 27 For example, the law can prohibit undesirable intentional killings in one of two ways. The law can either condemn all intentional homicides, including those that are beneficial to society, or the law can identify all the specific circumstances that make intentional killings unacceptable to society. Experience has shown this latter method is bound to be underinclusive. 28 In a society that highly values concepts of fair notice and unambiguous statutory statements of criminal law, 29 the first option must prevail in the contest between overinclusiveness and underinclusiveness. Consequently, we draw our criminal law in an overly general fashion and compensate by permitting those who commit criminal acts to defend themselves with claims of justification. 3 0 Justification defenses identify objectively determinable external circumstances that render otherwise criminal acts acceptable to society. 3 ' The conduct is paradigmatically wrong but, due to compelling circumstances and proper motive, the case is exceptional and the conduct should not be punished. 32 The act is legal because the circumstances invalidate the normal rules of criminal liability. 3 3 Consequently, an exception must be made to the prohibitory criminal law. Each justification defense is defined by a particular set of circum- 27. See Robinson, A Theory ofjustification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. REV. 266, 272 (1975) (arguing that criminal codes cannot accurately prescribe correct conduct in all situations but only can provide approximations of society's intuitive judgments). 28. See State v. Bradbury, 136 Me. 347, 9 A.2d 657 (1939) (ruling that disposal of corpse contrary to public decency is common law crime); Shaw v. Director of Public Prosecutions, 2 W.L.R. 897, 899, 2 All E.R. 446 (1961) (holding that conspiracy to corrupt public morals is punishable as common law offense). 29. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (explaining that rule of law entitles citizens to know what state commands and forbids). 30. See Robinson, supra note 27, at 272 (arguing that principle ofjustification is consistent with statutory criminal law because both limit blameworthiness to undesirable acts or harmful consequences). 31. Dressier, supra note 25, at Fletcher, The Right Deed for the Wrong Reasons: A Reply to Mr. Robinson, 23 UCLA L. REV. 293, (1975) (illustrating difference between correct conduct and conduct justified by sufficient reason). 33. Note, supra note 25, at 916.
9 1986] BATTERED WOMAN'S DEFENSE stances under which it is appropriate to disregard the criminal law's prohibition against acting. The law assumes that, when the circumstances that define the justification exist, the defendant has accomplished a socially desirable objective by committing the act or, at least, has not harmed society. 3 4 Thus, a determination that certain circumstances create a justification constitutes a decision that any person who commits the act under similar circumstances will be justified as well. 3 5 Indeed, the criminal law desires and encourages justified conduct. 3 6 In a situation of conflict, the justified act is the act that should prevail. 3 7 Paul Robinson, a leading proponent of systematization of criminal law defenses, has identified three categories of justification defenses: 38 (1) lesser evils; 39 (2) authorized use of defensive 34. See Alldridge, supra note 25, at 665 (stating that justification is based on act); Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 954 (1985) (explaining that justification concerns legal permissibility of act that nominally violates law); Robinson, supra note 27, at (arguing that an otherwise criminal act is justified whenever there is no societal harm); Williams, supra note 25, at 735 (defining justification as defense that affirms social desirability of act). Fletcher argues that inclusion of merely permissible conduct (as distinguished from desirable conduct) in the category ofjustified conduct is inconsistent with the concept of the criminal law as a self-regulating set of conduct rules. Fletcher, supra, at He notes that selfdefense is best defined as permissible rather than rightful conduct. Id. The implication is that self-defense should be classified as an excuse. 35. Note, Partially Determined Imperfect Self-Defense: The Battered Wife Kills and Tells Why, 34 STAN. L. REV. 615, 631 (1982). Robinson believes that right or legally permissible conduct that normally violates the criminal law is justified regardless of the actor's subjective intent. 2 P. ROBINSON, CRIMINAL LAW DEFENSES 122 (1984). Thus, so long as the objectively identifiable circumstances make conduct justifiable, the actor should be acquitted even if the actor was unaware of the justifying circumstances and committed the act for a "criminal" reason. Id. See also Robinson, supra note 27, at (stating that bad motive and lack of knowledge should not preclude defense of justification). Fletcher disagrees. Although he believes that justification should be judged on an objective rather than subjective standard, Fletcher would not find an act justified unless the actor honestly and reasonably believed the necessary circumstances existed. Fletcher, supra note 32, at 295; see also G. FLETCHER, RETHINKING, supra note 25, at 768 (maintaining that self-defense theory demands both objective standard of wrongful aggression and subjective standard of justificatory intent); Greenawalt, supra note 25, at 1916 (arguing that subjective analysis of actor's intent is crucial forjustification both in ordinary usage and legal theory). This debate need not be resolved for purposes of this Article. The general difficulty in battered women's cases is lack of proper circumstances rather than improper motive. Nonetheless, adoption of Robinson's view would increase the likelihood that women who acted solely in retaliation for prior abuse may be acquitted. See P. ROBINSON, supra, 122 (stating that subjective motive is irrelevant in self-defense). 36. See Fletcher, supra note 34, at 954 (arguing that claims of justification involve legal permissibility of acts nominally violating law); Greenawalt, supra note 25, at 1903 (stating that central definitional characteristic of justification is that conduct is warranted, not wrongful); Robinson, supra note 24, at 245 (noting that justifications send mixed message to community by acquitting defendant despite harm that was inflicted). 37. Fletcher, supra note 34, at 954. The criminal law's encouragement ofjustified conduct extends to third parties, justifying intervention to prevent the greater harm. Greenawalt, supra note 25, at P. ROBINSON, supra note 35, 122; Robinson, supra note 24, at
10 20 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 force; 40 and (3) authorized use of aggressive force. 4 1 All three categories are premised on a balancing notion. An act is justified if the societal harm avoided outweighs the societal harm inflicted. Lesser evils justifications involve relatively easy tasks of balancing the relative importance of the physical harm threatened with the physical harm inflicted. 42 The weighing required for authorized use of defensive and aggressive force is more difficult. Usually, the physical harms are equal-the taking of human lives. Robinson tips the balance in the defender's favor, however, by emphasizing the importance of weighing more than the comparative physical injuries. Society also has an interest in the right to bodily integrity. When society's interest in the right to bodily integrity and in protection against physical injury are combined, they outweigh society's interest in protecting the aggressor from physical harm. 43 Robinson identifies a uniform internal structure shared by all justification defenses. If certain triggering conditions occur, a necessary and proportionate response is permitted. 44 The necessity requirement has two aspects. First, it requires immediacy of the triggering conditions. 45 One can act only when there is no time to use any method other than criminal conduct to protect or further the interest at stake. 46 Second, the defender may act only to the extent necessary to protect the threatened interest. 47 That is, if nonharmful (i.e., noncriminal) or less harmful alternatives for avoid- 39. Robinson, supra note 24, at 214, 243 (including defenses traditionally categorized as necessity and duress). 40. Id. at , 242 (including defenses traditionally categorized as defense of others, self-defense, defense of property, and defense of premises). 41. Id. at , 243 (including parental authority, benevolent custodial authority, and authority to prevent suicide). The authorized use of aggressive force also arises in the context of public authority. Id. (including law enforcement, medical, military, and judicial authority). The authorized use of aggressive force justification differs from other justification defenses because it is limited to particular persons in special positions that protect and further legally recognized interests against non-aggressors who threaten those interests. Id. at Id. at Id. This view is problematic because the victim also has a right of bodily integrity. Only if one can assume that the aggressor has forfeited this right by his act of aggression does the balancing rationale justify the defensive act. See Fletcher, supra note 32, at 305 (arguing that moral forfeiture rationale for self-defense, premised on view that aggressor has lesser interest in freedom from physical aggression than other persons, is problematic); see also infla notes and accompanying text (discussing moral forfeiture theory). 44. Id. at Id. at Robinson does not attempt to decide how immediate the threatened harm must be. Id. at 217 n.70. It seems, however, that extension of the requirement of temporal necessity beyond the Model Penal Code time frame of "the present occasion" would make Robinson's lesser evils rationale dubious. See MODEL PENAL CODE 3.04(1) (1985) (use of force in selfdefense is justified when used to protect self from present threat). The shorter, common law standard of "imminency" may be required. See infra note 107 and accompanying text (discussing traditional requirement of imminency in self-defense theory). 47. Robinson, supra note 24, at
11 19861 BArTERED WOMAN'S DEFENSE ing the threatened harm are available, the infliction of criminal harm is not necessary or justified. Both aspects of the necessity requirement further the same goal. If justified conduct is noncriminal because it constitutes the lesser evil, the availability of a noncriminal alternative to avoiding the threatened harm defeats the claim. Because the justified conduct still causes a societal harm, it will be exculpated only if the greater harm was certain to occur and if no less harmful alternative was available. Otherwise the justified conduct will not be the lesser harm. The proportionality requirement serves a similar function. Even when the threatened harm is immediate and no less harmful alternatives are available, the maximum harm that may be inflicted cannot exceed the threatened harm. 48 For example, deadly force never can be used to protect against nondeadly force. If the harm inflicted exceeds the maximum limit, it is not the lesser evil and cannot be justified. The criminal law tends to apply these standards in a stringent manner in order to narrow the range of conduct that will be excepted from the normal prohibitions of the criminal law. 49 The question is whether, on balance, the act was beneficial to society. A court that broadens the concepts of necessity or proportionality risks erroneous encouragement of harmful conduct. Moreover, because circumstances that are external to the actor define the justification, objective standards must prevail to determine whether the elements exist. 5 0 A mistake regarding the existence of the triggering condition must be fatal to a claim of justification because it would destroy the balance of interests. Mistaken assessment of necessity or proportionality should lead to the same result. In either case, the balance of relative harms is upset. 5 ' To hold, as the battered woman's defense requires, that the actor's own experiences and psychological makeup should be considered in determining whether an act is justified is entirely inconsistent with the theory that a justified act is either beneficial or not harmful to society. 52 II. THE THEORY OF Excuse Justified conduct is conduct that will be encouraged or, at least, 48. Id. at See Note, supra note 25, at 921 (arguing that confusion of policies underlying justification and excuse results in stringent, narrow standards ofjustified conduct). 50. Robinson, supra note 24, at 239 n Id. at See infra notes and accompanying text (analyzing inconsistencies arising from characterization of battered woman's defense as justification defense).
12 22 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 tolerated under objectively identifiable circumstances that are not exclusive to the defendant. 53 In contrast, excuse focuses on the actor's subjective perceptions. 54 An excused actor has committed a harmful act that the criminal law seeks to prevent. 55 Unlike a justified act, the excused act did not avoid a greater societal harm or further a greater societal interest. 56 The actor is excused despite the harmful act because, due to internal or external pressure, she was not morally blameworthy. 5 7 Under the circumstances in which the harmful act was committed, the actor did not have a fair opportunity to choose meaningfully whether to inflict the harm. 58 Because Anglo-American law presumes free will, one who cannot exercise a voluntary choice whether to obey or violate the criminal law is not an appropriate subject of criminal punishment. 59 Consequently, excuses will apply only when the wrongful conduct is substantially more attributable to coercive influences than to free will. 60 Because the act was not voluntary, commission of the wrongful act is 53. See supra notes and accompanying text (discussing doctrine of justification). 54. Dressier, supra note 25, at 437; Robinson, supra note 24, at 221. But see Greenawalt, supra note 25, at (arguing that objective/subjective distinction between justification and excuse is erroneous). Although Greenawalt appears to misperceive the basis on which the objective/subjective distinction is normally made, he correctly points out that justifications have a subjective component and that many excuses have an objective component. Id at To be justified, an actor must subjectively believe that thejustificatory grounds exist. Id. To be excused, the actor's failure to resist internal or external compulsion must be either reasonable or understandable. Id. See supra note 35 and accompanying text (discussing disagreement concerning relevance of actor's subjective intent to justification defense). 55. See Greenawalt, supra note 25, at 1900 (explaining that need to prevent harmful acts prohibits others from emulating excused actors' conduct). See also Fletcher, supra note 34, at 958, Fletcher criticizes Anglo-American law because it does not require an ordered inquiry into whether an act is justified or excused. Id. He argues that both logic and retributive theories of punishment create a need to determine whether or not the conduct in question was justified before asking whether the actor is excused for her wrongful conduct because she was not blameworthy. Id. at Fletcher suggests that Anglo-American law is able to ignore this inquiry due to the law's traditional adherence to utilitarian theories of punishment. Id. at Nonetheless, it is widely recognized that punishment for utilitarian goals alone is undesirable because moral blameworthiness is a prerequisite to imposition of criminal sanctions. See H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION (1968) (noting that both retribution and utilitarianism presuppose moral blameworthiness). Thus, ordering the inquiry in the manner Fletcher advocates is desirable regardless of one's alignment as a utilitarian or a retributionist. 56. See supra notes and accompanying text (discussing social desirability ofjustified conduct). 57. Greenawalt, supra note 25, at Professor Greenawalt summarizes the "typical features" of excuse as follows: "If an action is excused, the actor is relieved of blame but others may not properly perform similar actions; interference with such actions is appropriate; and assistance of such actions is wrongful." Id. 58. Dressier, supra note 25, at 437; Donovan & Wildman, supra note 21, at 453; G. FLETCHER, RETHINKING supra note 24, at 759, 811; Robinson, supra note 24, at 229, See H. PACKER, supra note 55, at (discussing moral blameworthiness as prerequisite to criminal liability); Robinson, supra note 24, at 221 n.81 (arguing that imposition of criminal sanction presupposes exercise of free will). 60. Fletcher, supra note 34, at 971.
13 1986] BATrERED WOMAN'S DEFENSE not determinative of the actor's moral blameworthiness. Therefore, the excused actor cannot be punished solely on the basis of performing the act. 6 ' Instead, the relevant question is whether the particular actor can fairly be blamed for having succumbed to overwhelming pressure. 62 Excuse theory allows the fact-finder to consider the whole individual and to evaluate whether, under the circumstances, her life experience enabled her to choose between criminal and noncriminal conduct. If her inability to choose was reasonable or understandable, she is not culpable. The conclusion that she had no real choice is not necessarily the equivalent of a determination that the defendant was mentally incompetent. 63 Rather, it is a recognition that each person's life experiences are different and that consequently each person's reasonable reaction to the same set of external circumstances will differ. 64 Although there is widespread agreement on the general theory of excuse, there is no consensus regarding the proper elements of excuse. 65 The two leading advocates of revival of the distinction between justification and excuse each substantially expand the list of common law excuses. Robinson identifies four situational categories in which lack of free choice renders the defendant nonculpable: (1) acts that were not the product of the actor's determination; 66 (2) defects in perception or knowledge of the physical nature of the 61. Fletcher, Individualization, supra note 25, at Id. at In contrast, the relevant policy question in a case of justification is whether other people should commit the same act in the same situation. See supra notes and accompanying text (discussing criminal law's encouragement of justified acts). 63. But see Note, supra note 25, at 916 (suggesting that excuse posits lack of culpability based on individual's incapacity to commit offense). This erroneous conception that an actor who is excused from a crime lacks criminal capacity, i.e., is somehow mentally inferior, may account for some feminists' rejection of excuse as a defense for battered women. See supra note 20 and infra notes and accompanying text (discussing feminists' preference for justification theory). It must be emphasized that the theory of excuses discussed here can and should lead to complete acquittal rather than mitigation or other special consequences such as involuntary civil commitment. 64. See Donovan & Wildman, supra note 21, at 466 (arguing that law's failure to recognize relevancy of particular circumstances works injustice for accused individual and perpetuates inequities that caused individual to act). 65. This confusion is partially due to the law's preference for justifications. Modem codifications based on the Model Penal Code, for example, categorize most defenses asjustifications. Note, supra note 25, at See MODEL PENAL CODE (Proposed Official Draft 1962) (listing justification defenses). Conversely, excuse defenses are limited to duress and insanity. See id (duress); id (insanity). 66. Robinson, supra note 24, at 242. These defenses are usually treated as failure of proof defenses, precluding liability because there is no actus reus. See W. LAFAVE & A. Scorr, CRIMINAL LAw (1972) (analyzing respective liabilities for voluntary and involuntary acts).
14 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 conduct or its consequences; 67 (3) ignorance of criminality or wrongfulness of conduct; 68 and (4) impairment of control. 69 Fletcher, on the other hand, identifies four traditional defenses as excuses: necessity, coercion or duress, insanity, and mistake of law when the actor's ignorance of the law is beyond the actor's control. 70 Both authors agree that a reasonable but mistaken belief in the existence of circumstances creating a justification may constitute an excuse. 7 1 Similarly, both authors propose criteria to limit claims of excuse. Robinson concludes that, to be excused, the actor must suffer from a disability that causes an excusing condition. 7 2 A disability is a mental condition of the actor at the time of the offense that lessens the possibility that the harmful act was a product of the actor's meaningful choice.7 3 The condition may be permanent or temporary, internal or external, but it must have observable symptoms apart from the conduct in question. 4 The disability need not be a mental abnormality. It may be caused simply by a lack of information when the actor cannot be blamed for failing to obtain the information. 75 Fletcher calls for a similar limiting criteria that he terms a "limited temporal distortion of the actor's character." 7 6 The authors' shared disability requirement serves a variety of functions. The requirement limits the instances of excuse, provides evidence that the actor's free will actually was impaired, and shifts blame from the actor to the disability. Additionally, if an actor is perceived to be abnormal or the victim of abnormal pressures, the actor is excepted from the criminal law without undermining the law's general condemna- 67. Robinson, supra note 24, at 242 (including insanity, intoxication, somnambulism, and automatism). 68. Id. at 224, 243 (including mistake as to justification). 69. Id. at 243 (including duress). 70. Fletcher, Individualization, supra note 25, at 1269, The mistake of law category includes mistakes as to justification. Id. Glanville Williams believes that both Robinson and Fletcher err by failing to include absence of mens rea or negligence in their lists of excuses. Williams, supra note 25, at n.9. Williams defines two categories of excuses: (I) defenses that constitute a denial of the proscribed state of mind or negligence, and (2) defenses that hold the defendant unaccountable because the defendant was not a free and responsible agent. Id. at Fletcher, supra note 34, at ; Robinson, supra note 24, at Most American jurisdictions erroneously justify a reasonable, but mistaken, belief in the existence of circumstances creating the right to use self-defense. See infra notes 78 & 199 and accompanying text. 72. Robinson, supra note 24, at Id. at 221, 222 n Id. at Id. at G. FLETCHER, RETHINKING, supra note 24, at 802.
15 1986] BATTERED WOMAN'S DEFENSE 25 tory and deterrent functions. 77 III. THE LAW OF SELF-DEFENSE A. History Today most American jurisdictions treat self-defense as ajustification. 7 8 Because self-defense first entered the common law as an excuse, however, exploration of the history of the common law doctrine of self-defense is instructive in revealing whether it corresponds more closely to the rationale of justification or excuse. Early English common law did not recognize the notion that a killing in self-defense precluded culpability for homicide. 7 9 All intentional killings were felonious, capital crimes. 80 Prohibition of any form of self-help allowed early English rulers to control violence and establish obedience to the rule of law. If self-help was unlawful, reliance on governmental authority was necessary to protect one's interest in personal safety. 81 Between the twelfth and sixteenth centuries, strict liability for intentional killings began to disappear. 82 Homicides committed to prevent crime, in war, or to carry out the lawful execution of a legal punishment were deemed justified. 8 3 Such intentional killings ad- 77. Robinson, supra note 24, at An actor who performs a wrongful act expecting to be excused will be disappointed. The expectation demonstrates an unacceptable element of choice and planning that is likely to defeat the claim of excuse. See Fletcher, supra note 34, at See MODEL PENAL CODE 3.04 (1985) (classifying self-defense as a justification); see also Note, supra note 25, at n.2 (listing states that as of 1975 had adopted criminal codes based upon the Model Penal Code). North Dakota, however, has rejected the Model Penal Code approach. See N.D. CENr. CODE , (1976) (defining selfdefense as justification when use of force is necessary and proportionate and as excuse when actor reasonably, but mistakenly, believed force was necessary and proportionate). See also State v. Leidholm, 334 N.W.2d 811, (N.D. 1983) (applying statute); Note, Criminal Law - Self-Defense -Jury Instructions Given on Subjective Standard of Reasonableness in Self-Defense Do not Require a Specific Instruction on Battered Woman Syndrome, 60 N.D.L. REV. 141, (1984) (analyzing statute). The North Dakota scheme incorporates Fletcher's and Robinson's criticism of the Model Penal Code's treatment of reasonable but mistaken beliefs in the existence of justificatory circumstances. See supra note 71 and accompanying text (discussing Robinson's and Fletcher's consideration of reasonable but mistaken beliefs). 79. Donovan & Wildman, supra note 21, at Id. at See Brown, Self-Defence in Homicide From Strict Liability to Complete Exculpation, 1958 CRIM. L. REV. 583, (suggesting that self-help is less available as government's power expands). 82. On the development of the concept of mens rea in the early common law, see generally, Sayre,.Mens Rea, 45 HARV. L. REV. 974, (1932) F. POLLOCK & F. MArTLAND, THE HISTORY OF ENGLISH LAW (2d ed. 1898); Donovan & Wildman, supra note 21, at 441. These early justifications would for the most part fall under Robinson's third category ofjustifications-authorized use of aggressive force by public authority. See supra note 41 (discussing Robinson's treatment of use of force by public authority).
16 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 mittedly violated the interests of the victim. 84 Nonetheless, under the circumstances, the actor had a legal right to commit the act because it was beneficial to society. 85 The homicides justified by the early common law benefitted society because they were committed on behalf of the state itself against persons who threatened the state's ability to control aggression against persons and property. It was necessary to except those intentional killings from the proscriptions of the criminal law to consolidate respect for the rule of law. Medieval England also saw the beginnings of the notion of excusable homicide. Self-defense first appeared in the common law as an excuse rather than a justification. 86 One who commits a justifiable homicide is acquitted of the crime because the objective external circumstances that make the killing desirable require exception to the prohibitory criminal law. 87 On the other hand, an excusable act of homicide constituted a crime because an unjustified criminal act invaded a legally protected interest of the victim. Because of surrounding circumstances that affect the defendant in a unique fashion, however, the defendant is not culpable because he has no free choice whether or not to comply with the criminal law. 8 8 A medieval English defendant who acted in self-defense was probably presumed to have had no real choice whether to act because of the natural human instinct for self-preservation-an instinct inconsistent with the need for social control. 8 9 Precisely because self-help was contrary to societal needs, in medieval England an excused homicide was merely pardonable. Although the defendant who acted in selfdefense was saved from capital punishment, his property was still subject to forfeiture 90 and he suffered other civil disabilities until the royal pardon was granted. 91 As time passed, pardons became increasingly ministerial until, by the early nineteenth century, self-defense was regarded as a complete excuse in England. 92 As the practical difference betweenjusti- 84. See Alldridge, supra note 25, at 667 (discussing rule permitting taking of innocent life to maximize societal survival rate). 85. Id. 86. Donovan & Wildman, supra note 21, at 441; 2 F. POLLOCK & F. MArrLAND, supra note 83, at See supra notes and accompanying text (discussing justification defense theory). 88. See supra notes and accompanying text (analyzing defense of excuse). 89. Donovan & Wildman, supra note 21, at See G. FLETCHER, RETHINKING, supra note 24, at (noting that early self-defense defendants were subject to forfeiture of instruments of crime). 91. See 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 182 (1769) (stating that English law considered excusable homicide deserving of punishment); Robinson, supia note 27, at 275 (noting that defendants claiming self-defense were required to seek pardon to avoid punishment). 92. Donovan & Wildman, supra note 21, at 443.
17 19861 BATrERED WOMAN'S DEFENSE fication and excuse disappeared, other distinctions between the two categories of defenses also began to fade. Late in the nineteenth century, at least one legal scholar declared that the categories no longer bore any legal consequence in English law. 93 In the United States, the technical distinctions between justification and excuse also faded although the labels continued to bear some rhetorical significance. 94 As codification of the criminal law progressed in the mid-twentieth century, many state codes categorized self-defense as a justification rather than as an excuse. 95 The theoretical implications are clear. One has a legal right to kill in self-defense. Moreover, such intentional homicides are encouraged because they are not harmful to society and may be beneficial. Yet the criminal law's general goal of reducing the amount of violence in society remains the same. 96 To harmonize the principle that killings in self-defense are justified with the principle that human life is the highest value protected by the law, the range of defensive conduct that will be justified must be narrowly circumscribed. The result is a legal environment that is inhospitable to the battered woman's defense. B. The Modern Law of Self-Defense The criminal law normally penalizes those who intentionally inflict or attempt to inflict physical harm. 9 7 There is general agreement, however, that intentional infliction of physical harm upon another is not culpable when it is inflicted in self-defense. Thus, a person who kills in self-defense will be acquitted of homicide. Although exceptions persist, most American jurisdictions define self-defense in a similar manner, with a few common variations. 98 The definition of self-defense is designed to permit a person to use self-help against an unlawful aggressor when there is no opportu J. STEPHENS, HISTORY OF THE CRIMINAL LAW OF ENGLAND 1, 56 (1883). 94. Note, supra note 25, at See supra note 78 (discussing influence on state statutes of Model Penal Code's classification of self-defense as justification). 96. See Note, supra note 35, at 627 (noting society's dual interests in preventing vigilante justice while permitting some self-defense). 97. Such conduct will be defined as murder, manslaughter, attempted murder, or some form of assault and battery depending upon the particular accused's state of mind and whether he succeeded in inflicting the intended harm. W. LAFAVE & A. Sco-rr, supra note 66, at A complete review or synthesis of the law of self-defense in each American jurisdiction is beyond the scope of this Article. For the most part, the author has relied upon LaFave and Scott's well-regarded textbook and on the Model Penal Code as representing the law of the majority of American jurisdictions. See W. LAFAVE & A. Sco-r, supra note 66, 5.7; MODEL PENAL CODE 3.04 (1985) (discussing general law of self-defense).
18 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 nity to resort to the criminal justice system for protection. 9 9 Not surprisingly, the elements of self-defense correspond to the components of all justification defenses that Robinson has identified. 00 An intentional killing will be justified' 0 ' when the following requirements are met: 1. An actor can only defend herself against what she reasonably believes is unlawful force The amount of force must be proportionate to the threatened force Deadly force 10 4 may not be used unless the actor reasonably believes that she is protecting herself against infliction of death or serious bodily harm The actor must reasonably believe that it is necessary to use force to prevent the threatened harm The actor must reasonably believe that the adversary's 99. W. LAFAVE & A. Sco-r, supra note 66, at See supra notes and accompanying text (discussing Robinson's necessity and proportionality requirements) See W. LAFAvE & A. ScoTr, supra note 66, at 391 (discussing self-defense as justification defense); MODEL PENAL CODE 3.04 (1985) (defining self-defense as justifiable use of force) W. LAFAVE & A. Scorr, supra note 66, at 392. Unlawful force can be either a crime or a tort. Id. Generally, the actor may not be the initial aggressor. Id. at There are two situations, however, when the actor may initiate the use of force. Id. at 395. First, if the actor's use of nondeadly force is met with a deadly response, the actor may defend himself justifiably. Id. Second, if the actor's good-faith attempts to withdraw from the encounter are thwarted by his adversary, the actor's right to self-defense is restored. Id. See also Note, supra note 35, at 625 n.458 (discussing some potentially troublesome broader definitions of unlawful force). Unlawful aggression against the actor is Robinson's "triggering condition." See supra note 44 and accompanying text (discussing appropriate response when triggering condition occurs) W. LAFAVE & A. Scorr, supra note 66, at This corresponds to Robinson's proportionality requirement. See supra notes and accompanying text (discussing Robinson's proportionality requirement) W. LAFAVE & A. ScoTr, supra note 66, at 392. Deadly force is defined as force used with the intent to inflict death or serious bodily harm or force used with knowledge of its capability to inflict death or serious bodily harm. Id Id. at 393. A few jurisdictions require equal force as opposed to proportionate force. Id. This view would preclude use of a weapon against an unarmed assailant regardless of the correctness of the defendant's belief that the unarmed assailant could inflict death or serious bodily harm. Id. The majority rule, however, allows reasonable proportionate force even when it is "unequal." Id. See also id. at 392 (noting that mere threats of death or serious bodily harm do not constitute use of deadly force). The Model Penal Code allows the use of deadly force against "sexual intercourse compelled by force or threat" regardless of the degree of force. MODEL PENAL CODE 3.04(2)(b) (1985) W. LAFAVE & A. ScoTr, supra note 66, at 393. Under this view, a reasonable, but mistaken, belief in necessity does not defeat the defense, but one who makes an unreasonable mistake Will not have a defense. The Model Penal Code is more forgiving. It requires only that the actor have a good faith belief that the force is necessary. The belief need not be reasonable. See MODEL PENAL CODE 3.04(2) (1985) (providing that "a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used"). See generally supra notes and accompanying text (discussing excuse defense and reasonable belief requirement). Self-defense need not be the actor's sole motive. A person acting in proper self-defense
19 1986] BATTERED WOMAN'S DEFENSE threatened use of force is imminent A determination that an intentional killing is justified because it was committed in self-defense carries certain doctrinal implications. Anyone who intentionally kills another person under the same circumstances will be justified as well. The aggressor/victim has no right to defend against the justified actor's defensive act or against the equally justified acts of third parties who may come to the defender's aid. Any person who confronts the same circumstances as a person acquitted on grounds of self-defense has a legal right to kill; indeed, the law encourages her to do so Because the ramifications of an acquittal on grounds of self-defense extend far beyond the particular case under adjudication, the law of self-defense is designed to ensure as closely as possible that does not lose the defense by having an additional, less admirable motive. W. LAFAVE & A. Scorr, supra note 66, at 394. The question of necessity should not be confused with the issue of retreat. A significant minority of American jurisdictions require the defender to retreat before using deadly force when he knows he can avoid harm and achieve complete safety by running away from his adversary. Id. at Retreat from one's home or place of business, however, may not be required. See, e.g., People v. McGrandy, 9 Mich. App. 187, 189, 156 N.W.2d 48, 49 (1967) (holding that battered wife was not required to retreat from own home to claim valid selfdefense); Commonwealth v. Johnston, 438 Pa. 485, 489, 263 A.2d 376, 379 (1970) (ruling that defender may stand ground and meet deadly force with deadly force when threatened in own home by nonmember of family). But cf Commonwealth v. Schaeffer, 367 Mass. 508, 511, 326 N.E.2d 880, 883 (1975) (holding that, although defender does not have unlimited right to use deadly force without attempting to retreat from own home, location of assault is valid consideration in self-defense). Others require retreat from one's home only when the adversary is a co-occupant. See, e.g., State v. Pontery, 19 NJ. 457, 475, 117 A.2d 473, 482 (1955) (holding that common law retreat rule is inapplicable when adversary is co-occupant); Commonwealth v. Walker, 447 Pa. 146, 150, 288 A.2d 741, 743 (1972) (ruling that defender must retreat if attacker is co-resident). Cf Commonwealth v. Eberle, 474 Pa. 548, 557, 379 A.2d 90, 94 (1977) (requiring no duty to retreat when attacker was frequent guest, but not coresident). Because most battered woman's defense cases occur in the home, the retreat doctrine is rarely relevant. Even when it is, the requirement that the defendant must know she can retreat in complete safety limits the doctrine's influence on case outcome. When retreat is not required, defendant is permitted to stand her ground and respond to an imminent attack with deadly force if running away is the only alternative. See generally Note, Limits on the Use of Defensive Force to Prevent IntramaritalAssaults, 10 RuT.-CAM. L. REV. 643, (1979) (discussing application of retreat rule to domestic abuse cases) W. LAFAVE & A. ScoTr, supra note 66, at 394. At common law, the imminency requirement is usually interpreted to require a threat of immediate harm. The Model Penal Code expands the time frame, allowing use of force to protect against an unlawful attack "on the present occasion." MODEL PENAL CODE 3.04(1). LaFave & Scott explain that the imminency requirement rules out the possibility that the defendant may be able to thwart the attack using nonviolent means. Id. The imminency requirement is problematic in battered woman's defense cases when past behavior indicates that the harm will occur in the future and effective avoidance of the harm may be impossible. See Note, supra note 106, at (recommending adoption of a standard of self-defense that does not require imminency). Together, the imminency and necessity requirements constitute Robinson's necessity condition. See supra notes and accompanying text (discussing Robinson's theory of necessity) See supa notes and accompanying text (discussing theoretical basis ofjustification defenses).
20 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:11 the justificatory grounds exist. 109 To be justified, the defensive act must cause less societal harm than the harm that the victim/aggressor threatened."1 0 The requirement that the victim's threatened aggression be unlawful permits the devaluation of the aggressor's life and interest in bodily integrity relative to the defender's. 11 ' If the victim's aggression was not unlawful, the victim's interest in life cannot be devalued. The comparative harms will be equal and the defensive act will not bejustified." 2 Thus, a killing in self-defense by an actor who mistakenly believes that the threatened aggression is unlawful should not be a justified act. ' 1 Expanding the prerequisites of self-defense to allow reasonable mistakes regarding the unlawfulness of aggressive force increases the risk that taking of innocent lives will be encouraged. Even when the triggering condition for self-defense-unlawful aggression-is present, the common law requirements of proportionality, necessity, and imminence must be met to achieve the proper balance of harm.' 14 The amount of force employed by the defender must be proportionate to the threatened aggressive force. If deadly force is used to defend against nondeadly force, the harm inflicted by the actor (death or serious bodily harm) will be greater than the harm avoided (less than serious bodily harm). Even if deadly force is proportionate, its use must be necessary. Otherwise, unlawful conduct will only bejustified when it involves the lesser harm of two harmful choices. If countering with nondeadly force or with no force at all avoids the threatened harm, defensive use of deadly force is no longer the lesser evil of only two choices. Alternatives involving still less societal harm are available. Indeed, in many cases it may have been possible to avoid unlawful conduct altogether. The same consideration underlies the imminency requirement. The 109. See Marcus, Conjugal Violence: The Law of Force and the Force of Law, 69 CALIF. L. REV. 1657, 1704 (1981) (stating that theory of self-defense is designed to ensure that homicide was unavoidable) See supra notes and accompanying text (discussing balance of societal interests in justification) See supra note 43 and accompanying text (arguing that combination of right of bodily integrity and protection against physical injury outweigh society's interest in protecting agressor). Rationales that have been offered to support this devaluation are discussed infra notes and accompanying text Cf. Fletcher, supra note 34, at (arguing that mere belief, no matter how reasonable, cannot justify homicide) Fletcher and Robinson both agree that such cases are not justified. Instead, they should be treated as excuses unless the actor is culpable for making the mistake, in which case liability should be imposed. See supra note 71 and accompanying text (discussing Robinson's and Fletcher's views on mistake and excuse theory). Compare MODEL PENAL CODE 3.04(2) (1985) (justifying use of force if actor honestly believes in unlawfulness of force) See supra notes and notes and accompanying text (discussing Robinson's theory ofjustification and elements of self-defense).