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Published: 2008-03-26

The "Battered Woman's Defense" Its History and Future



Twenty years ago I was forced to learn something about battered women in the course of representing a woman who had killed her abusive husband. Prior to that time I had known women were abused but viewed it as a private or personal injustice. I began to learn during the case that the injustice of abuse by an individual man was a symptom of a pervasive denial of human rights on a broad scale that made society itself the accomplice of the man who had beaten my client. Since then I have represented a dozen other women who fought back against their abusers and consulted in fifty to a hundred similar cases across the country. Those twelve years have affirmed and sharpened, but not altered, my initial discovery about the root cause of domestic violence. Essential to the existence of domestic violence is the denial of the equality of women in cultures that perceived this denial as both acceptable and lawful.

This denial of equality was the essential cornerstone of men's violence against women and ultimately operated to deny women a fair trial when they were successful in fighting back against the violence.

From the beginning of time women were seen as inferior to men. Examination of the history of western civilization reveals laws authorizing men's use of violence against women to chastise and control them. In Roman times a husband was permitted to use reasonable physical force, including blackening her eyes or breaking her nose, in disciplining his wife. The English principle of coverture established that a married woman could not own property free from her husband's claim or control. In fact, women themselves were seen as property. English rape laws considered rape a crime against the husband, father or fianci of the victim. Rape cases were considered properly disposed of if the male "owner" of the victim was compensated for the damage to his "property". Marital rape was inconceivable, as wives could not legally refuse their husbands' conjugal rights. A sixteenth century Russian code wisely cautioned husbands not to strike their wives on the face or ear since they would be sorely disadvantaged should the wife become blind, deaf, or otherwise incapacitated. In many parts of Europe a man could kill his wife without penalty well into the 1600's. By contrast, a wife who killed her husband was penalized as if she had committed treason, because her act of homicide was considered analogous to murdering the king.

English common law sanctioned wife beating under the infamous "rule of thumb," which decreed that a man might use a "rod not thicker than his thumb" with which to chastise his wife. Oddly enough, this restriction was meant to be a means of protecting wives from over zealous husbands. American states adopted this rule in the early nineteenth century in formal recognition of a husband's right to beat his wife. By 1910, only 35 out of 46 states had passed reform legislation classifying wife-beating as assault.

These legalized injustices documented a societal state of mind not easily erased after being in place for centuries. It is only in the last fifteen years that most states have made it a crime for a man to rape his wife. Some states require physical injury to accompany the rape. The real legacy of these laws and practices remains in our perceptions of women and their position in respect to men. In many parts of our society a woman's wifely duties include sexual submissiveness.

It is no surprise that a man authorized to abuse his wife would be the king of the castle and the breadwinner. Women were relegated to traditional supporting roles of housewife and mother. A generation ago, national magazines featured stories on the corporate wife and her importance in supporting her husband's career. Careers for women were expected to be in teaching and nursing. It was not long ago that a woman could not be found in the boardroom, a police department or construction site. Few women could aspire to be doctors or lawyers or any occupation that might be overly time consuming and interfere with the duties of being mothers and wives. Also, These professions did not fit the image of a "good woman" who was passive and submissive.

Bound up in these beliefs was the understanding that what happened between a man and a woman behind closed doors was a private family matter. It was behind closed doors that women were regularly abused. Even though government's fundamental obligation to its citizens is its duty to protect them from harm, an exception existed for the husband who would beat his wife. Only recently have police departments begun to vigorously arrest wife beaters, less out of concern for the women than as a result of lawsuits based on an equal protection claim for a failure to protect.

In this reality, battered women knew that they could expect little protection from the men who beat them. Many of them died as a result but some in the face of impending death fought back and killed their abusers. Then they found a system of justice that prosecuted them with a lightening quickness and efficiency never provided to protect them. Not surprisingly the attitudes that permeated a world in which wife beating was accepted had little tolerance for the woman who fought back. On the rare occasions that women were successful in court their defense was premised on the concept of insanity. Perhaps the best known case was that of Francine Hughes whose story was dramatically portrayed in the television movie "The Burning Bed" televised in 1984.

Although seen as a landmark in recognition of the plight of battered women, Ms. Hughes premised her defense on the ground of temporary insanity. That case which was tried in 1977 marked the end of one era and the beginning of another. Dr. Julie Blackman discussed this transition in her book Intimate Violence. At the time we were in the midst of a feminist movement aimed at equality for women in all aspects of society. A part of this movement focused on an awareness of the plight of battered women and the basic injustice of their situation. In the mid 1970's the first battered women's shelters were opened in the United States and old ideas about women in the criminal justice system were challenged. The case of Yvonne Wanrow, decided by the Supreme Court of the State of Washington in 1977, was a pivotal advance for women in self defense cases. Ms. Wanrow had appealed a murder conviction complaining that the trial Court had instructed the jury on the issue of self defense using only the masculine gender to explain the circumstances justifying the use of force in self defense. She and her lawyers believed that using the masculine gender implicitly advised the jury to use a male standard in assessing the propriety of a woman's conduct. It seems hard to believe that a major advance encompassed the right of a woman to have "her" and "she" substituted for "he" and "him" when a jury considered the circumstances in which she used force to defend herself. But, that is exactly what happened.

Progressing beyond the reasonable male standard for self defense the debate continues today about what standard to apply. Some suggest a sex-neutral standard taking into account all of the circumstances surrounding the participants at the time of the incident, including individual characteristics and histories of the parties. Both lay and expert testimony would be used to explain the individual's violence and to dispel misperceptions about intimate violence. Critics suggest this standard reinforces sexual stereotypes by focusing on the defendant as an individual woman but calling it sex-neutral.

A second alternative advanced is the "reasonable woman standard." Advocates argue a woman's perceptions of danger, harm and force are different from a man's and therefore her reactions when threatened by her husband are significantly different from those of a man in similar circumstances. Accordingly her actions should be judged by a different standard. Detractors of this standard see stereotypes emerging similar to those feared with the use of the sex-neutral standard, that is ...

A third approach is the creation of entirely new concept of self defense based on a reasonable battered woman. A major problem with this position is that it may be unconstitutional under an equal protection argument and again may substitute one stereotype for another. My own experience suggests women have gotten the fairest trial in situations where the sex-neutral standard was used.

Changing the beliefs of a society has been much harder than changing the gender of pronouns used to instruct a jury. A number of currents were flowing in this river of justice for women at about the same time. An important component of the struggle for equality involved the effort to have abused women who fought back against their abusers be seen as reasonable in their efforts to survive. No longer would women go into court and defend themselves in clear cases of self defense by arguing that they were deranged at the time.

This was not an easy task. The American vision of self defense had always been cast in the picture of two gunfighters squaring off on a western street. In such a scenario a woman reasonable or not would always be dead. Violence and its use had always been seen as appropriate in male terms. A good man was ambitious, aggressive and in control. A good woman on the other hand was demure, passive and submissive running contrary to the vision of her in a situation where the use of force was ever a good thing. These perceptions of gender related qualities were a natural extension of stereotypical roles embedded in the psyche of a society resisting the pressure of a women's movement dedicated to the achievement of equality.

Lenore Walker, a psychologist, provided a vehicle to assist women in explaining their experiences in the context of a criminal trial where the woman's use of force in self defense was an issue. In her book, The Battered Woman, published in 1979, she outlined a theory based on research with battered women relating to the structure of a battering relationship from a prospective of understanding the woman's position. She offered the "battered woman's syndrome" to explain why a woman stayed. She described as well the characteristics of these relationships. She suggested that battering relationships had a cycle of violence consisting of three phases and that women in these relationships often suffered from learned helplessness.

Dr. Walker's landmark work described a series of myths associated with battered women and the characteristics of the women themselves. The myths included beliefs that battering was not widespread, it didn't happen to middle class white women, that the women were masochists, they could leave at any time and battered women deserved to get beaten. The women themselves were said to suffer from low self esteem, have traditional values about relationships, to accept responsibility for the abuse, and believe they were isolated, among other things. The three phases of the repeated cycle of violence consisted of the tension building phase, the acute battering incident and the contrition phase where the batterer showered affection on the women with promises never to repeat the conduct. Later anecdotal information suggests that the contrition phase may disappear over a long period of time replaced by a periods better described as a lull in hostilities. At this time the apologies and remorse that helped keep the woman in the relationship are replaced by fear of leaving.

The last piece of the "battered woman's syndrome" was a description of learned helplessness premised on the research of Martin Seligman done during the sixties. Seligman had reported that dogs placed in cages with a divider would jump from one side to the other when the side the dog was on was charged with electricity. Then, the side the dog jumped to was also charged and a shock was administered causing the dog to jump back to the side of the cage he had come from. Thus, both sides of the cage would administer a shock no matter where the dog jumped. There was nowhere the dog could go without receiving a shock. In a short while the dog would no longer attempt to jump because it had learned there was nothing it could do to avoid the pain. The dog would simply lie there. The animal had learned that it was helpless and refused to try to avoid the shock. This principle was applied to battered women in abusive relationships. Repeated beatings like electric shocks seem inescapable. Women, at first, believe they can control the violence by their behavior. Doing what the abuser wants or refraining from conduct that precipitates the violence over time doesn't work. These women come to believe that nothing they do can alter the violence. They become passive and the ability to perceive alternatives disappears. Battered Woman's Syndrome became a way to explain the conduct of a woman in a battering relationship who had fought back and killed her abuser. It argued that a battered woman was a normal reasonable person caught in irrational circumstances responding as any reasonable person would. For a lawyer handling a woman's self defense case it provided the tools to argue what happened to this woman would happen to anybody under similar circumstances. "Battered Woman's Syndrome" made the battered woman every woman and therefore a reasonable person who used force in self defense. An apparent contradiction lay in the use of force by someone who suffered from learned helplessness. This was explained as a instinctual response to a survival situation where the threatened violence by the abuser exceeded prior violence levels and was observed by a person acutely aware of changes in the level of violence. This evidence was predicated on scientific theory and could be offered to the jury or judge through the testimony of an expert in the area of "Battered Woman's Syndrome".

The confluence of currents in the social stream of the 70's provided a movement dedicated to equality for women and a body of research that could explain the experiences of battered women within the concept of reasonableness. Such was the birth of what has become known as the "Battered Woman's Defense". This defense is really nothing more than a woman's use of self defense in the context of her experience as a battered woman.

Its advent on the legal scene came at a time when a generation of men were threatened with impotence at the thought of a woman having the right to choose a superior position during sexual intercourse. Women were challenging their place in an existing societal order. No less traumatic was the understanding that a normal woman could be trapped in an abusive relationship that escalated to a point where the right thing to do was use violence in aid of her survival. This concept presented images that collided like two speeding trains racing toward each other on the same track. Battered woman's self defense, seemed to be a semantic nd social oxymoron.

The same beliefs about sexual stereotypes and prejudices that justified the historical victimization of women denied them their right to defend themselves from it. It is the feminist's catch 22. The vision of a woman as a victim suggested passivity and helplessness devoid of any power or blemish. God help the woman using self defense who couldn't measure up to image of a helpless heroine with a spotless character. In a world that had been filled with Hollywood scenes of a woman capitulating to love in the overpowering embrace of the hero who knew better than the heroine what she wanted, the acceptance of woman's control of her destiny was frightening. Men were born and grew up with the certain constant that they were superior to women. Women in society were the nurturer's, the care-givers not the movers or shakers. It was the way things were meant to be; it was right. Many women grew up being taught--and accepted-- the same beliefs. A woman's violence against a particular man in self defense was seen as a threat to every man and the existing social order.

I remember growing up going to Catholic school and hearing the saying that if the nuns had you until you were ten they had their hand on your shoulder the rest of your life. It was a way of explaining the power of beliefs drilled into you as a child. No less powerful were the repeated messages about the status of men and women. The roles of women and men and the inherent superiority of men permeated every facet of our being from religion to the media to observations of everyday life, not as something bad but as a statement of the natural order which was both right and wholesome. The mountain of prejudice we now call sexism built over all of history would not be eroded in a short time.

Before a battered woman could fight the battle for the hearts and minds of a jury she needed an advocate to present her story. Like a screenplay that needs a good director and the backing of a producer, a battered woman's self defense case needed the vision of a lawyer to structure the case and a judge willing to let it be presented to the jury. An attorney or judge encumbered by prejudices about battered women would be an unlikely candidate to advance a defense that contradicted fundamental opinions about the existing social order. Even the unbiased might deny the reality of societal prejudice to absolve themselves of any responsibility for the violence these beliefs tolerated. Obviously the denial of such prejudice renders us powerless to correct an injustice that we cannot admit exists. Too little attention has been paid to the cases of women that were never presented in court, not because of a biased or ignorant judge but as the product of inaction or ignorance of the attorney charged with her defense. These injustices surface, if at all, as the woman languishes in jail and becomes aware of what could have been done for her case.

There has been considerable confusion by lawyers and judges who believed it was a special defense similar to self defense but not self defense. In many of my cases, prosecutors, defense lawyers and judges would ask me if I was going to use the "battered Woman's Defense". A prosecutor would inform the judge that "Mr. Dowd is going to use the `battered woman's defense'". The judge in the position of someone asked to gaze on the emperor's famous new suit of clothes would respond "we will just have to see if he does" convinced he was unaware of something he should have known. They talked like it were collateral estoppel or the statute of frauds. It was sometimes seen as a psychiatric defense somewhere between insanity and heat of passion. Really, the true lies elsewhere. Like the emperors' clothes, there is no "Battered Woman's Defense."

Still, good thinking people were misled. Part of the problem was the use of the word syndrome to describe the abused woman reactions to a violent relationship. "Syndrome" is defined as a group of symptoms that characterize a disease or disorder. I believe it is useful to describe Battered Woman's Syndrome as the responses and characteristics of a normal woman who finds herself in a defective or dysfunctional relationship surrounded by the societal realities of life confronting a woman today. The major defects are in the relationship, the batterer and the society.

Without considerable knowledge of the subject it is easy to conclude that Battered Woman's Syndrome describes a disorder or disease of the woman resulting from abuse and causing her to remain in a battering relationship. In this construct the woman stays because the abuse impairs a rational decision to leave or she suffers some from pre existing defect. It is very hard to build a self defense case grounded in reasonableness when the woman's prior decisions reflect an absence of quality. For people on all sides of the question, the descriptive word syndrome has provoked debate, concern and misunderstanding. Most would prefer it hadn't been used but the confusion resulting from a descriptive name change, at this time, would exacerbate the problem. Feminist concerns focused on the fear that the apparent contradictions inherent in the word syndrome would label battered women as abnormal people. This perception necessarily absolved society of any responsibility and placed the blame on the victim. Judges have ordered psychiatric examinations of women claiming to use expert testimony on Battered Woman's Syndrome in the mistaken belief that a form of insanity defense was imminent. The essence of the error was the search for medical pathology in the disease of an intimate relationship better dealt with by the social sciences than medicine.

This is not to say that battered women may not suffer from some form of mental disorder as a result of the continual violence. Maladies like post traumatic stress disorder may be present giving rise to an insanity defense or some form of mitigating psychiatric defense such as extreme emotional disturbance. One of the problems in interposing a form of insanity defense involves the potential of having the burden of proof on this issue. Another difficulty can be the prosecution's right to a psychiatric examination of the woman where there is a mitigating or exculpating psychiatric defense.

Some of the responsibility for the confusion must be laid at the door of the defense lawyers in their inaccurate presentation of the expert testimony in aid of the defense of a battered woman. Defense lawyers found themselves with a source of expert testimony that their adversaries and judges seldom understood. Too often they seized on this lack of knowledge as a means of extending the evidence beyond its potential. This resulted in chaotic rulings by trial courts left to be sorted out by appellate courts.

I believe the proper use of "Battered Woman's Syndrome" assists the fact finder to understand the state of mind of the battered woman at the time she fought back against her abuser. It does this by dispelling myths and misperceptions about battered women, explains the woman's inability to escape the battering relationship and provides an understanding of the circumstances creating a reality-based perception requiring the use of reasonable and necessary deadly force in order to defend herself. Such evidence does this in the same way a history of prior violence and abuse bears on the state of mind. The expert explains to the jury the myths and misconceptions about abused women and their batterers and then charts the characteristics of a battering relationship that identifies Battered Woman's Syndrome such as the cycle of violence and learned helplessness. These concepts have been previously discussed. The expert when discussing learned helplessness can start to explain the numerous real factors facing a battered woman who seeks a way out of the relationship.

The real barriers facing a woman trying to escape a battering relationship contribute to a sense of helplessness and at the same time explain why she doesn't leave. Things like the poor performance of police and the courts in protecting women, the lack of space in battered women's shelters, the likelihood of increased violence when a woman attempts to leave, the financial hardship a woman faces when leaving all make escape difficult and dangerous. These factors together with evidence of the prior violence of the abuser are part of a woman's state of mind whichis critical to her defense. The facts contributing to a belief by the woman that she is helpless to control the violence, stop it or successfully flee are not products of defective or delusional thinking. Crucial handicaps for women in self defense cases have been their apparent use of excessive force in response to a threat or assault and the timeliness of their response to a threat of harm or actual harm. In some cases it is the use of a knife or gun in response to an unarmed attack or the woman's use of force after a threat of death with no assault. Another criticism of the law of self defense is that it presumes a first-time meeting between the participants.

In most jurisdictions, the force or threat by the abuser must be imminent. The word "imminent" refers to a non specific period of time: it can be an immediate threat or something that could happen at any time. The case where the woman shoots a sleeping man or one with his back turned has not appeared to meet the criterion of imminence. In an appropriate case, the testimony of the battered woman about the abuse over a period of time, her belief that she could not escape her abuser in any real way, together with the expert testimony about the reality of these beliefs provides a context that fits a test of imminence, grounded in her experience even if the man's back was turned or she was responding to an unarmed assault. If a hostage, like Terry Anderson, was told he would be killed the next day, we would applaud the strangling of a sleeping guard in an effort to escape. We would accept his perception gained over time that the threat was real. Those circumstances certainly meet any test of imminence and justify the use of whatever force it took to be free.

I have represented women whose lives in homes with abusive men were as dangerous and hopeless as living in a cell in Beirut being guarded by terrorists. These women's knowledge of their captors makes them the best able to assess the threat. Their perception of limited options is not delusional. They may indeed learn to be helpless but this helplessness is produced by the realities of their daily existence and not some distorted by product of violence.

Why can't lawyers, judges and juries equate the experiences of the battered woman with those of the hostage or prisoner? Our daily news is spotted with reports of women murdered clutching orders of protection or fleeing like fugitives from men in relentless pursuit. I have remarked to many in recent years that a battered woman's self defense case is harder today to win than it was in the early nineteen eighties. The increase in media attention over the last few years generated an assumption that the problem was fast being solved. Again, the reality is markedly different. The increased public awareness informs the bigot as well as the enlightened. Those in the past that responded to the case of a battered woman with crass prejudice now pretend to accept the premise of battered woman's self defense and the necessary expert testimony accompanying it, but structure their opposition to the issue in the assertion that the woman in question doesn't fit the mold.

It has given rise to distinctions between "good" and "bad" battered women. The "good" battered woman conforms to age old stereotypes of women as passive, loyal housewives living lives as loyal and loving companions of their abuser. This woman must be without any flaw in her character and must continually appeal to the police and courts for help regardless of its futility. The "bad" battered woman is one who fails to possess any of the virtues of the "good" battered woman. She may have obtained an education and pursued a career. Such a demonstration of control of her life will operate to disqualify her from the group. Infidelity or abuse of drugs is equally dangerous. I represented a woman in 1984, in Queens County, who had shot her abusive husband. Duringthe course of the trial the prosecutor tried to introduce evidence that my client was a sloppy house keeper, didn't toilet-train her children and had an affair. The judge permitted the testimony and instructed the jury this was evidence demonstrating what she had done to provoke her husband to beat her. The prosecutor in that case was a woman. Both judge and prosecutor claimed to be sympathetic to battered women, but my client didn't fit the mold. The frontal assault on the issue of battered women as victims of injustice has been replaced by an individual disqualification from the group.

The new rallying cry of the bigot spawned in the darkness of ignorance is that "we all know and accept the injustices done to women and the need to recognize the right of battered women to fight back against their abusers, but this particular woman was not in such a position". The wolves are indeed in sheeps clothing. It is not very different from the fourteen stalwarts of the United States Senate proclaiming their sensitivity to sexual harassment during the Clarence Thomas confirmation hearings. The sensitive Senators abhorred sexual harassment in general; they just couldn't find any when they looked for it.

The struggle today for acceptance of the right of a battered woman to defend herself against her abuser and then receive a fair hearing in the system that prosecutes her has shifted from a fight to get in the door to a battle over a particular woman's presence as an appropriate resident. The rationale for the exclusion has remained the same while the arguments have changed. The perceived need to camouflage the prejudice makes it all the more difficult to detect.

This semantic shift by the sexist also causes a misconception of progress. In its simplest form, the reduction of openly sexist positions and increased media attention obscure the continuing magnitude of the problem. These two factors are by no means operating in concert. The media's prolonged examination of domestic violence is either a reflection of heightened awareness or a precursor of public arousal depending on one's view of the press. Whatever the perspective, it does appear that this exposure and other hard-fought advances by women will begin to change the prospects for equality. Here, once again, a fundamental premise of this essay resurfaces. The long held beliefs in the inequality of women remain strong and resistant to change. The ripple of progress made for battered women in the courtroom with a defense tailored to reflect the experiences of the women still has not eroded internal societal prejudices. In the late seventies and early eighties the prejudices would be expressed in a much more forthright manner making the arguments more direct. Now the job of ferreting out bias and prejudice is much more difficult.

Beyond the pale of prejudice, in the community of decent people, the awful truth of our indifference and inability to quell the tide of violence against women is often too horrific to accept. The reality of life for a battered women is indeed beyond the knowledge of the average person. Expert testimony is needed. The recognition of the truth entails an acceptance of responsibility for the violence among us. Denying the truth of the woman's story can be easier than dealing with it.

There does seem to be a "backlash" against the rights of women as described by Susan Faludi in her book by the same name. It has been a reflected vision in the eyes of battered women who have been left unprotected by a society that refused to protect them. When these women chose life over death the organs of government that had failed to protect them prosecuted them with a vigor and speed reserved for serial murderers. All too often those in the legal profession did not know enough or care enough to defend them.

The heart and soul of the battered women's movement was and is the people who established the shelters for women in abusive relationships. They remain undaunted in their pursuit of equality and an end to the violence. For all they have been able to do in providing a safe haven, there remains a serious gap in the services battered women need when seeking to escape a battering relationship or having survived after fighting back against their abusers. The lack of adequate representation of battered women in the courts is at crisis levels. Solving this problem is a fundamental goal of the newly established Pace University Woman's Justice Center. This institution, formed in October 1991, was a partnership between the State of New York and Pace University. In the last few years, the Center functions as a part of Pace University. This Center has trained lawyers to represent battered women in criminal and civil cases. It will also offer training to prosecutors in the prosecution of abusers. For the battered women in jail, those the system has already failed, the Center is working to provide them assistance in the preparation of petitions for clemency. It was the first Center at a major university in collaboration with government dedicated to the eradication of a problem with us since the dawn of history.

Already men and women are coming forward to take the training but also volunteering to work at the Center toward the goals of equality and an end to the violence. All ages are represented but most of the volunteers are represented by the generation growing up in the wake of the decade of self gratification represented by the eighties. These young people have watched a generation beset by greed and materiality flounder in the emptiness of the experience. They are dedicated to filling their lives with the richness of work that will benefit others. For them it is enough to try. Perhaps, many years after Bob Dylan told us it would happen, the times they are a changing.