Law in Contemporary Society

Don’t Call Me Crazy

How the Reasonable Person Standard as Applied in Self-Defense Cases with Victims of Domestic Violence is Based on Faulty Assumptions

Criminal law generally only allows for the use of deadly force in self-defense when one is faced with an imminent threat. Although this rule has the laudable goal of discouraging premeditated murder, it also rests on an assumption that given enough time, a reasonable person can rely on the assistance of the state to protect them from harm. This assumption ignores the ugly reality that in some situations, and especially for victims of domestic violence, it may be reasonable to believe that the state will not assist you.

Two different pronoun problems. First, "A person" needs a singular pronoun. If the gendering of singular pronouns in English seems to be a problem here, use the plural, "People." Second, the second person pronoun ending the paragraph seems sudden: we've been in third person throughout the preceding sentences.


I have called the police twice and they did not come either time. On one of these occasions, an acquaintance’s intoxicated boyfriend was assaulting her. We got him out of the house, he passed out in the yard, and I called the police and described what had happened. After about 90 minutes, the abusive boyfriend woke up and walked away. I stayed awake for another few hours, wanting to talk to the police when they arrived. They never came. The abusive boyfriend spent the night in his van, half a block away, and in the morning, convinced his girlfriend to take him back. This experience, as well as almost every other experience that I have had with the police, has led me to the believe (reasonably, I would argue) that I cannot rely on the police to respond when I ask for help. And this is me – a white girl, from a privileged background, with the financial means, social ties, and family support to never feel truly stuck.

Infinitive splitting isn't good. Here "never to feel truly stuck" is simple and graceful, or as graceful as one can be with "stuck" in the phrase.

I cannot even imagine how it is for an indigent woman, or a woman of color, or a woman in an abusive relationship, and especially not for a woman experiencing all of those things simultaneously.

I think you mean you can imagine, and that you imagine she is unlikely to bother calling the police at all. It might have been more accurate to say "undocumented" than "indigent." Similarly "color" doesn't necessarily do a good job of defining which ethnic or cultural communities will be more reluctant to call the police: Haredi Jews are usually assumed to have "white" color, for example, but also do not report domestic violence.

Unfortunately, the argument that the state does not adequately protect victims of domestic violence is substantiated by evidence beyond my own personal experience. Consider some of the findings that Congress considered when discussing the Violence Against Women Act: One study in Texas indicated that the police did not respond to calls from one out of three battered women. At the Sheriff’s Department in Los Angeles, the practice was to put domestic violence calls at the bottom of the response list, rather than treating them as an emergency. A Washington DC study showed that even in cases where a victim of domestic violence was actually bleeding from her injuries when the police arrived, arrests were still made less than 15% of the time. Combined with the Supreme Court's ruling in DeShaney, (holding that the state has no affirmative duty to protect a citizen from abuse), the government has left victims of domestic violence with no one that they can count on to protect them, and no way to seek redress against the state for this failure to protect. Making this a perfect, if tragic, example of how the law often works punitively rather than therapeutically when operating on "the bottom", many jurisdictions also hold victims of domestic violence criminally culpable for failing to protect their children from the abuse of their partners.

It would be reasonable here also to refer, however, to the spread of "must arrest" statutes and rules requiring police to take action to remove the (almost always) man from the scene in custody. Similarly, the last sentence of the paragraph, while literally accurate, is potentially misleading: responsible prosecutors wouldn't charge a partner solely for failure to report or prevent violence by a primary abuser also abusing them, absent all evidence of some other form of complicity in the abuse. Even in such cases, duress or coercion might well be an appropriate defense, but your text seems to suggest that there's something inherently wrong with requiring proof of the affirmative defense, or perhaps even of imposing any liability in such situations, which seems to me probably to go further than you meant to go.

I don't understand the reference to DeShaney. (First, when citing a case, cite the case, not a Wikipedia article about it.) Even if DeShaney is wrongly decided as you believe, a position I agree with, the opposite result surely must depend on (1) the State's role as parens patriae in assuring the safety of children, and (2) the active previous involvement of the State's child protective services throughout Joshua DeShaney? 's life in Wisconsin, including repeated home visits. It's hard to see how, on any logic, one could find a non-statutory 14th Amendment damages remedy generally against municipalities for failing to prevent crimes, solve crimes, or interrupt crimes in progress. Implying such a direct non-statutory remedy from the 14th Amendment is hard work even given the elements present in DeShaney? I describe, which is why the Court finds it an unreachable destination.

What We’ve Tried to Do

Even though society at large is probably not ready to accept a conclusion that it is entirely reasonable for victims of domestic violence to believe that the state will be unable to help them, and therefore reasonable for these victims to use premeditated deadly force to protect themselves and end their cycle of abuse, there is at least some recognition that victims of domestic violence may be a special case.

That's not one conclusion, that's two. You have discussed only the first one. Where is the argument that those the State will not help are therefore entitled to "premeditated deadly force"?

We see this primarily through the use of Battered Women's Syndrome as a defense, which has been used in some jurisdictions to allow battered women to escape convictions for violent behavior when differently situated parties might have been convicted. However, several feminist scholars, with whom I agree, point out that this is problematic in that it perpetuates a damaging stereotype of battered women, and women in general, as mentally reduced. As well as reinforcing a powerless and marginalized status for women, testimony on Battered Women's Syndrome also generally fails to protect battered women from criminal charges. Most jurisdictions, if they allow testimony on Battered Women's Syndrome at all, only allow it to inform the jury's decisions to a very limited extent, and do not allow it as a complete defense in the case of violent behavior that seems clearly premeditated, for example, killing an abusive husband in his sleep. Battered Women's Syndrome is therefore an unsatisfactory solution to the problematic punitive, rather than therapeutic, treatment of battered women in the criminal justice system.

This doesn't address the analytic issues at all. If someone is in present reasonable apprehension of death or serious bodily injury, use of deadly force in self-defense is excusable without any reference to the "domestic" nature of the threat. And, as you point out, courts increasingly accept that a killing with malice prepense should be treated as a killing under immediate provocation where there has been a history of repeated violence against the killer, thus turning murder or first-degree homicide into manslaughter. Here you are not-asking about conditions under which premeditated killing should be excused, apparently asserting without explanation that killing on premeditation is "anticipatory self-defense." This conclusion may be correct, but it can't be assumed. Have we decided that this is the sole example of excusing premeditated murder of unarmed, sleeping, or otherwise not immediately threatening people who can be confidently predicted to be violent in future? Are there other such examples? Do they hinge on the psychological state of the killer, or primarily on the predictable future dangerousness of the victim? Can someone hire a person to perform "anticipatory self-defense," and if not, why not?

I'm not sure I fully understand the closing reference to "punitive, rather than therapeutic, treatment of battered women in the criminal justice system." Donald Black might use that phrase to denote the criminal conviction of a person, but in this context it seems to me to have more to do with sentencing. Is this about women who kill men who have a history of brutalizing them? If so, what does happen to them, overall? Do they serve substantial prison sentences? The full complement of "battered women in the criminal justice system," probably includes almost all women in the criminal justice system; I suspect, as you probably do too, that almost all female offenders have experienced physical violence in their lives.

What Needs to be Done

As I can not imagine a way in which self-defense law could allow victims of domestic violence to kill their abusers, without allowing all sorts of other, less socially desirable forms of premeditated murder, I believe that the solution to this problem must lie elsewhere. At the very least, we need to make it a reality that victims of domestic violence can reasonably rely on the state to protect them from their abusers. A decent starting point for this would be if Congress rewrote VAWA to allow suits against state actors rather than individual abusers. Although this would not provide victims of gender violence with the direct vindication that the original version of VAWA would have, it would create some sort of state duty to protect women from domestic violence, which would hopefully lead to better protection, and at least allow those who suffer from a lack of protection to have some form of redress. At the very least, the criminal justice system needs to acknowledge that the assumption that reasonable battered women can look to the state for help is at odds with reality, and accept that the problem is not that battered women are "crazy".

Was there evidence presented that the criminal justice system treats battered women as "crazy"? I don't think I saw it, and I'm not sure that without evidence I would believe it.

I'm still puzzled by the recommendation that domestic violence victims should be given a damages action against municipalities on the basis of a duty to protect "women" from domestic violence. Isn't that obviously unconstitutional? So we have a duty to protect people against domestic violence, failing which damages are awarded against the municipality. Why should this be limited to domestic violence? Is there some more serious obligation to protect people against domestic violence than other violence? Why should statute distinguish between this duty and the non-duty to protect against other violence, like for example, violence by state employees? In the latter case, we know already that the municipality has no duty unless the violence results from "policies and practices" of the municipality, at least so far as section 1983 is concerned. We don't want the State putting a policeman in every home, so what triggers the "duty to protect," for failing to observe which the municipality's taxpayers should be mulcted in damages?


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r5 - 22 Jan 2013 - 20:09:47 - IanSullivan
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