5.5 The Defensive Action of Battered Women
5.5.2 The Conditions of Private Defence and the Issue of the Battered Woman
The question of the special consideration that should—according to the argu- ment—be accorded to the defensive force used by a battered woman arises in the face of an action that does not meet the accepted conditions for private defence.
The condition whose non-existence is the most frequent is the requirement of immediacy. In many cases, battered women killed their partners without any proximity in time to the attacks that their partners committed. This incompatibil- ity with the requirement of immediacy has been highlighted in cases in which men were killed while asleep, and in cases in which women hired professional killers to kill men.1307The frequency of these cases led many scholars to view the issue of the battered woman as a particular case of the issue of immediacy.1308While address- ing the requirement of immediacy, I noted the possibility of justification—under certain circumstances—of a ‘pre-emptive strike’. Here it should be noted that killing a person while asleep—even if he is likely to attack when he awakens—is, in my opinion, too early a strike that does not comply with the requirement of necessity in general and the requirement of immediacy in particular.1309In fact, the justification of this (too) pre-emptive strike in such cases constitutes, in prac-
1307 See, eg, the references in n 1300 above; Rosen, n 37 above, at 14 (addressing cases of men who were killed during their retreat-escape; recharging a revolver after three shots and continuing to shoot the man); see also the description of the case ofGracia(People v Gracia 54 Cal App 3d 61, 54 Cal 275 (1976)), ibidat 35 (although it did not involve a battered woman, the case is very interesting for our discussion—the requirement of immediacy: two men raped the accused person and promised to return and rape her again. The accused took a revolver, searched for them, and when she found one of them in the road a few hours later, shot him dead. She was acquitted on the grounds of self-defence). See also the discussion of the Norman case by Dressler, n 1299 above, at 264–69. Contra—Horder, n 1299 above, at 289ff.
1308 See, eg, the references in n 659 above.
1309 A possible exception, which is not addressed here, concerns a situation in which the require- ments of necessity and immediacy do indeed exist, such as when the attacked person is locked in a room with the sleeping aggressor, who is expected to kill him when he awakes, while the attacked per- son cannot open the door and escape, and cannot tie up the aggressor or neutralise him by any other means without waking him.
tice, a grant of permission (or even justification) for the man’s execution because of his past behaviour, or the behaviour expected from him in the future.1310The fact that other methods of action, especially a retreat and an appeal to law enforce- ment agencies, were open to these actors cannot be overlooked. As Smith points out, women who hired professional killers to kill their husbands do not seem to be helpless1311 (as mentioned, the learned helplessness is emphasised within the framework of theories that relate to the ‘battered woman syndrome’).
The case of Diaz(1983) serves as a classical example of this matter1312. The vio- lent husband of the accused threatened her that if she would not change he would murder their baby daughter. When he was in a deep sleep, the accused shot him with two deadly bullets. The accused was acquitted on grounds of self-defence, notwithstanding that the facts of the case, as the facts of other similar cases, raise questions not only with regard to the requirements of necessity and immediacy (which were not fulfilled), but also with regard to the very existence of real danger.
The issue of the battered woman is, actually, likely to illustrate the great import- ance of the requirement of immediacy, since it is especially in such situations that it is desirable to encourage recourse to non-violent alternatives and not to choose the course of taking human life.1313
This last consideration leads us to an additional accepted condition of private defence that is often discussed with regard to the defensive behaviour of a battered woman, which is the duty to retreat. As was noted during the discussion of the duty to retreat, there is an accepted exception to this duty—when the attacked person is at the time of the attack in his dwelling. Indeed, in most cases of the defensive actions of battered women the event takes place in the woman’s home—
a fact that many scholars highlight in their writings.1314However, these scholars ignore the accepted exception to this exception, which is applicable because of the fact that the ‘aggressor’-husband also resides in the same dwelling.1315The word
‘aggressor’ was placed in quotation marks, since given the lack of an immediate danger to the woman, which is typical in the cases under discussion, it is doubtful whether there is any room at all to talk about an attack and consequently the question of retreat does not arise at all, since there is altogether no room to use defensive force.
1310 Such were the opinions of an American court in State v Stewart (Sup Ct of Kan) 763 P 2d 572 (1988)—see Kadish and Schulhofer, n 640 above, at 871; and of Smith, n 91 above, at 116–17.
1311 See Smith, n 91 above, at 116–17.
1312 See People v Diaz, no. 2714 (Sup Ct NY) (1983); see also the references in n 1300 above.
1313 Perhaps even more powerful than the force of words would be the power of the painting that was presented—for some reason—in the collection of articles on the subject of our discussion that was collated in vol 9–11 of the Women’s Rights Law Reporter (1986–1989) (ibidat 257), in which a woman is seen chasing after a man in flight from her, while she is brandishing a knife in her hand and leaning towards him ready to stab him in the back.
1314 See, eg, Bochnak, n 1299 above, at 46–48; Wells, n 1299 above, at 127.
1315 See the text accompanying nn 1059–61 above (including the different approach of the MPC—
n 1061 above).
It is common to link the duty to retreat with the woman’s inability—because of her psychological state, social standing and so forth—to separate from her hus- band and leave home. Accordingly, the fact is emphasised—inter alia by means of expert testimony, which will be discussed below—that the beating of the woman was arbitrary and did not stem from any guilt on her part, given her inability to sever the contact with her husband.1316This argument constitutes a break-in to an open door. For nobody suggests viewing the fact that the woman did not separate from her husband during the period of beatings that preceded the tragic incident as causing the situation of compulsion by prior guilt of the actor. As we saw in the previous section (5.4), such causation accompanied by guilt is not even relevant when in the situation of compulsion itself the conditions for private defence did not exist in any case. The question is not why did the woman not leave the home on each of the occasions that she had the opportunity to do so during the long period of the beatings which preceded the tragic event, but why did she kill her husband in the absence of necessity in general and immediacy in particular, or—
when an immediate severe attack was expected from the husband—why did she avoid retreating from home at the relevant time (prior to killing her husband).
An additional main condition for the justification of private defence, which American case law often tends to erode when the defensive behaviour of a battered woman is involved, is the proportionality requirement. In the decisive majority of the cases that are the subject of our discussion, women used deadly force even when the severity of the danger they faced was not even close to that level1317. Yet American courts occasionally tend to subjectify to no small degree the objective requirement of proportionality. The Supreme Court of Washington, for example, abolished a (correct) instruction that the court of the first instance issued to the jurors in the case of Wanrow,according to which a deadly weapon should not be used against a person who is unarmed unless there is a reasonable cause to believe that there is an immediate severe danger to the attacked person, reasoning that women in our society are not skilled in repelling aggressors without the use of arms.1318
1316 See, eg, Bochnak, n 1299 above, at 46–48; Taylor, n 1208 above, at 1704.
1317 This is also the assessment of Rosen—see Rosen, n 37 above, at 43. It is interesting to note that this conclusion is actually likely given the previous beatings, if—as in most cases—none of the previ- ous beatings was accompanied by deadly force. With regard to this matter, my opinion is that using experts’ testimony and stressing the many previous beatings may constitute a double-edged sword, as I shall explain below.
1318 See the ruling in State v Wanrow (Sup Ct of Wash) 88 Wash 2d 221 559 P 2d 548 (1977). It should be clarified and emphasised that the question here is not one of necessity but of proportional- ity. It should also be noted that sometimes it does not only concern the subjectifying of the objective requirement of proportionality, but, in effect, a waiver of the requirement of proportionality or—at least—a significant erosion of it. This occurs when a woman does not even have a (mistaken) belief in the existence of a severe danger.
In Canada, a committee report that addressed the defensive actions of battered women was pub- lished in 1997. Alongside other alternatives for treatment of the problem—especially in the punish- ment setting—the report also suggests changing the definition in the law of self-defence to the effect of
These and other distortions of private defence and its conditions, through which it would be possible to justify unjustified actions, earned, as expected, much criti- cism. Concerns were voiced regarding a loss of deterrence value, legitimisation of revenge by providing a ‘license to kill’, a ‘male hunt’, and justification of the use of force—including deadly force—every time that the actor believes subjectively that its use is necessary and proportionate.1319To these concerns should be added the fear of curtailing the requirements of necessity and proportionality, not only when the actor is mistaken in thinking that they exist, but even when the actor himself does not believe in their existence, to the effect of full justification of his action.
These concerns are especially conspicuous against the backdrop of arguments for many other syndromes, which sprang up like mushrooms after the storm of the battered woman syndrome. Arguments were raised regarding the actual existence and relevance of an advanced old-age syndrome; the Vietnam War veterans syn- drome; the battered child syndrome; the battered person syndrome; and the pre- menstrual syndrome.1320These many potential syndromes indicate the danger in breaking down the boundaries of private defence in light of the battered woman syndrome.1321