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Battered women who kill in non-beating situation have self-defense right
Mark
Reutter, Business & Law Editor
217-333-0568; mreutter@illinois.edu
8/15/2005
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CHAMPAIGN, Ill.
— Answering critics of the “battered woman syndrome,”
a University of Illinois expert argues that the claims made by victims
of domestic violence are a legitimate extension of the longstanding
rules of self-defense.
Many dispute the notion that the legal protection of self-defense can
be extended to a woman who kills a partner at some time other than during
a beating. According to Alan M. Dershowitz, a Harvard law professor,
a battered woman “has the option of either leaving or calling
the police” rather than taking matters into her own hands.
Self-defense claims raised by battered women have encountered the greatest
objections in cases in which a woman claims that a history of abuse
led her to kill her partner as he slept or was not engaged in violence.
“Although statistically most domestic violence killings do not
fall into this category,” such killings raise the most troublesome
questions for battered women claiming self-defense, wrote Kit Kinports,
a law professor at the University of Illinois College
of Law. “Can a woman who kills under these circumstances legitimately
argue that she acted in self-defense – that, pursuant to the prevailing
definition of the defense, she honestly and reasonably believed she
was in imminent danger of danger or serious bodily harm?”
In an article in the Saint Louis University Public Law Review, Kinports
goes through the legal questions raised by such cases. Critics, for
example, charge that a battered woman cannot hope to satisfy the “reasonableness”
requirement of the self-defense standard because her belief that force
was necessary was objectively not reasonable.
Kinports argued that evidence of a history of beatings or chokings by
a partner can provide an objective standard for evaluating a defendant’s
state of mind and her claim that she believed she was under a dire threat.
“The so-called ‘reasonable battered woman’ standard
adopted by some courts is just a shorthand description for the conventional
‘reasonable person under the circumstances’ standard that
courts apply in all self-defense cases,” she wrote. In addition,
the courts can evaluate through expert witnesses the growing body of
empirical work about domestic violence and the “battered women
syndrome,” a term coined by psychologist Lenore Walker in 1979.
Focusing on the self-defense standard’s “imminence”
requirement, Kinports faults critics who argue that a woman who kills
her partner while he is asleep cannot reasonably assert that she is
in imminent danger. Kinports cites research finding that a woman sometimes
can only realistically protect herself when the batterer is sleeping
and, further, that leaving an abusive partner may subject her to even
greater harm.
“At least half of the women who leave their abusers are followed
and harassed or further attacked by them,” she noted, citing figures
indicating that the majority of men who kill their spouses do so after
the couple has separated or divorced.
Calling the police, as Dershowitz suggested, is frequently futile under
real-world conditions, according to Kinports. “At least half of
protective orders against an abusive spouse are violated at least once,
and many are violated repeatedly. The police are still much more likely
to arrest in a case involving stranger assault and are reluctant to
arrest unless the abuser committed some independent crime.”
Likewise, requesting a court protective order can be especially risky
for mothers, because state authorities are increasingly bringing neglect
proceedings against women whose children witness family violence or
are themselves victims of abuse.
A U.S. Department of Justice study in 2000 found that 85 percent of
domestic assault cases involved men attacking women. The report estimated
that 4.5 million male-on-female assaults take place yearly in the U.S,
affecting 1.3 million women, resulting in an annual rate of 44.2 assaults
per 1,000 women over the age of 17.
What’s more, one in three female murders in 2001 was at the hands
of the victim’s husband or boyfriend, compared with one in 35
men killed by a wife or girlfriend, according to the Federal Bureau
of Investigation’s Uniform Crime Reports.
While the proportion
of women killed by their male intimates has stayed roughly the same
between 1971 and 2001 (at the 31-33 percent level), the proportion of
males killed by their wives or girlfriends has dropped from 7.8 percent
in 1971 to 2.8 percent in 2001, according to the FBI reports.
“As our experience with 30 years of reform efforts has demonstrated,
the gender bias that leads individual men to feel free to beat their
partners – and that leads society to treat that violence more
cavalierly than it treats stranger assault – is so well entrenched
that it has proven very resistant to change,” the Illinois scholar
pointed out.
“Certainly while we continue our efforts to end violence against
women, we should strive to give battered women’s self-defense
claims the same consideration we have traditionally afforded to defenses
raised by male defendants.”
Kinports’ article is titled, “So Much Activity, So Little
Change: A Reply to the Critics of Battered Women’s Self-Defense.”
