Battered Women Who Kill: Should The Reasonable Man Standard Still Apply?

by Angela Palmer

Until recently battered women who kill their abusers have had very few defenses under the law. Since the woman almost always admits to the slaying, the major defenses have been pleas of insanity or self-defense. A woman can plead insanity but she then faces the very real possibility that she might be committed to a state mental facility. This defense is seldom successful because the women are often not insane, and there is an effort to demonstrate the rational, though difficult to understand, basis for their actions, through the use of expert witness testimony. A woman can also plead that she acted in self-defense, which is generally even more difficult to prove. This difficulty comes as a result of the very narrow definition of self-defense and the stringent requirements that must be met if this plea is to be effective. Self-defense requires the accused to prove that she "reasonably believed" she was in immediate danger of death or serious bodily injury, that she resorted to deadly force in order to avert that danger, and that the deadly force was necessary to avert the danger. In some states there is an added requirement that the defendant prove that all avenues of escape were closed off when the act of self defense was committed. Women who kill their batterers somtimes do so when the batterer is asleep, usually after a lull in a battering incident. Sometimes they hire someone to do the killing for them, which does not fit into the self-defense definition either. This "reasonable man" standard is the standard by which most juries are instructed when self-defense is the plea.

The very basis for the "reasonable" man standard, which is to ensure that the law is as dispassionate and objective as possible without being completely removed, has created the greatest difficulty for battered women as defendants. Gillespie describes how the "reasonable" man developed in English Common Law around the year 1200. The main cases of self-defense were man-to-man bar brawls or stranger-on-the-street confrontations. These adversaries were assumed to be of relatively equal size, strength and ability. How a man would react in those situations seemed fairly obvious. He would fight with whatever his attacker was fighting with: fists, knife or gun. This was based upon the notion that a reasonable man would be justified in using violence, even lethal measures, in order to protect himself.

Many women are not of relatively equal size, strength and ability as their domestic attackers. They are seldom trained in physical defense and athletics like their male counterparts.(Gillespie, 33-36) In this context, Gillespie brings up the Wanrow decision of 1977 and the consequences deriving from that decision for battered women. In Wanrow, a battered woman was convicted of killing her husband. The most positive aspect of the case was the Washington Supreme Court's language in its opinion overturning Wanrow's previous conviction of second-degree murder. The court found that "the defendants actions (were) to be judged against her own subjective impressions and not those which a detached jury might determine to be objectively reasonable." This decision impacts battered women defendants by taking into account their ability to better determine the extent of violence about to be inflicted upon them, and the acceptance of their impressions as valid, rather than mentally deficient in some way. This rationale also reflects the relative abilities of the two parties and affords greater protection to the victim of abuse.

In the book Justifiable Homicide: Battered Women, Self-Defense and the Law, Cynthia K. Gillespie argues for the acceptance and inclusion of Battered Woman Syndrome testimony, derived from the research of Lenore E. Walker, as part of the self-defense doctrine. This testimony does not guarantee acquittal, but Gillespie believes that it is a necessary addition to current law. Gillespie is a lawyer whose key ideas rest on research done by Lenore Walker, a professor of psychology and the Executive Director of the Domestic Violence Institute. Gillespie argues for the recognition of expert witness testimony on the subject of Battered Woman Syndrome. This is not an entirely new psychological category; the main elements come from a long tradition of research into violence in general (i.e., Post-Traumatic Stress Disorder). Walker has developed a two part explanation for the mental life of battered women.

The first part deals with the Cycle Theory of Violence. In an abusive relationship, the victim and the abuser move through three stages which repeatedly recycle with increasing intensity and destructiveness. Stage 1 is the Tension-Building Phase, in which pressures build up on the batterer and minor battering incidents occur. During this phase the victim tries to control the behavior of the abuser by altering her own behavior. Stage 2 is the Acute Battering Incident, which involves a sometimes prolonged period of severe beating, often triggered by nothing of consequence. This phase is followed by Stage 3, the Loving and Contrition Phase, which does not necessarily involve acts of kindness, though it does represent a period of calm and a cessation of battering. This third phase can last for long periods of time, but sooner or later, according to Walker and other experts, Stage 1 will begin again.

The repetitive and violent nature of this relationship leads to the second part of Walker's explanation, which is the Psychosocial Theory of Learned Helplessness. This theory is not peculiar to Walker's research. She borrowed the term from the experiments done by Martin Seligman on dogs. Using electrical shocks from which the animals could not escape, he tested them to see how they reacted to prolonged exposure with no way of escape. The dogs soon ceased trying to escape, and even when avenues of escape were made available, they still would not use them. Similar experiments were done on humans and other animals. The results were nearly the same.

Walker uses this theory to explain why women who are battered do not seek to escape, which is generally the most baffling question surrounding domestic abuse cases. The key to understanding this theory lies in understanding how people's perceptions of the amount of control that they have over their surroundings can "teach" them to be helpless. Just as Seligman's dogs were subjected to inescapable shocks, so are battered women subjected to brutality at the hands of their lovers and husbands. The brutality of their situation in conjunction with the women's lack of resources, lack of assistance from police and other public servants and lack of meaningful personal relationships offering support to the battered women, create in the women the same response pattern as was created in the dogs in Seligman's study. The Cycle Theory of Violence shows how women are slowly "taught" that they can do nothing to escape from their batterers. The Cycle begins slowly and often the third stage lasts the longest and has the most impact on the women. In the beginning of a battering relationship, this phase almost always involves some form of promise by the batterer that he will change and that this will never happen again. Of course, a great many other reasons exist why a woman's first reaction to violence is to dismiss it and try to make everything good again in the relationship. These reasons range from simply loving their husbands too much to throw it all away to having no other options available. A dismissal of the first instance often leads the man to feel that the woman is taking some of the blame for his actions, thereby making him feel justified in abusing her.(Tong, 137) Unfortunately the statistics paint a grim picture of women who choose this route, because a great many women die every year at the hands of their male partners, often after making attempts to leave or drive out their abusers.

The emphasis that Gillespie places on the expert witness testimony regarding Battered Woman Syndrome comes from her understanding of the legal process as it is applied to female defendants who have killed their batterers in self-defense. The immediacy requirement, which states that the threat of death or serious bodily injury must be immediate, poses the most difficult problem for these women, and Gillespie believes that admission of expert witness testimony will allow juries to see things through the eyes of the battered woman. She argues that the battered woman has a better sense of what is in store for her at the hands of her batterer than some dispassionate by-stander, or what she terms "the mysterious reasonable man" who haunts the legal stage and creates an impossible image with which women are compared. The actual standard should be a "battered woman", not a "reasonable man," because of the peculiar nature of domestic violence. A killing committed by a battered woman does not fit very well into the format of other crimes because of the domestic violence's longevity and destructiveness to both people involved, especially to the victim.

The criticism of expert witness testimony revolves around two views. The feminist argument put forth by Charles Ewing, Naomi Wolf and other sources, states that focusing on the Battered Woman Syndrome to justify homicide leads the jury to see the victimization and powerlessness of the defendant, and does little to explain her action in killing the abuser. According to Ewing, the testimony can have negative effects on battered women's cases in two ways. First, it can paint a picture in the jurors minds of mental disturbance or incapacity, which is literally the opposite of what it is intended to do. This is not a plea of insanity and the intent of the testimony is to show that the woman was victimized rather than that she was mentally deficient. Second and more importantly, it can appear as if there is a separate defense for battered women which gives them a "license to kill".(Ewing, 55-57) The feminist reaction to these arguments is that women don't want to be sheltered from their full responsibilities and, if they are forced to murder in their own defense, they want to be justified according to the standards of their case and the law, not excused because they lack the proper reasoning to tell that their action was wrong. This is the strongest argument against relying wholly upon expert witness testimony. The difference between excuse and justification is very important to today's theories of law, and this testimony must thus be characterized under one or the other heading.

The conservative reaction rests solely on the "license to kill" philosophy. Women deserve sympathy and help when they are victims of domestic abuse. They do not deserve to have free reign with their killing impulses. The violent response these women have chosen comes as revenge for the years of abuse they have suffered and modern law does not sanction murder for revenge.(Caplan, 39-43) Gillespie believes this sort of thinking comes from our legal tradition and its English roots. An article in Ms. magazine clearly describes the problems associated with expert witness testimony regarding Battered Woman Syndrome. The stereotypes that women were subjected to in the past may be reinforced - feeling masochistic, having low self-esteem, being dependent, and adhering to traditional beliefs about the family and female sex roles - and were seldom based on anything more concrete than generalizations promulgated by male power figures. With the advent of Battered Woman Syndrome, these same power figures have a more solid, scientific base from which to use the same stereotypes against female defendants.(Kandel, 88-89) Certainly some battered women may exhibit these character traits. However, many battered women are strong and independent and are not meek and passive in the face of authority. The problem with Battered Woman Syndrome testimony is that it sets in stone these negative character traits and leaves the strong women out of the picture.

The effect of the inclusion of battered woman syndrome testimony, and of the change from a "reasonable man" to the neutral "reasonable person in the same circumstances" standard, is by no means clear. The Reasonable Man, in some courts, has lost his place in the law of self-defense, at least as applied to battered women who kill. It remains to be seen whether or not this is a change for the better.

List of Works

Browne, Angela. When Battered Women Kill. New York: The Free Press, 1987.

Caplan, Gerald. "Battered Wives, Battered Justice". National Review. (Feb. 25, 1991): 39-43.

Ewing, Charles P. Battered Women Who Kill: Psychological Self-Defense as Legal Justification. Lexington: D.C. Heath and Co., 1987.

Gillespie, Cynthia K. Justifiable Homicide: Battered Women, Self- Defense and the Law. Columbus: Ohio State Univ. Press, 1989.

Huffman, Thomas. "Abortion, Moral Responsibility and Self- Defense". Public Affairs Quarterly. p. 293-300.

Iowa Department of Public Safety. Research and Development Bureau. Iowa Domestic Abuse Reports 1987, 1988, 1989, 1990.

Kandel, Minouche. "Women Who Kill Their Batterers Are Getting Battered in Court". Ms. 4 (July/August 1993): 88-89.

Walker, Lenore E. Terrifying Love: Why Battered Women Kill and How Society Responds. New York: Harper & Row, 1989.

---. The Battered Woman. New York: Harper & Row, 1979.

Wolf, Naomi. Fire With Fire. New York: Random House, 1993.

Tong, Rosemarie. Women, Sex and the Law. Maryland: Rowman & Littlefield, 1984.