The "abuse excuse" has become a catchy phase describing a decline in moral values marked by circumstances where otherwise guilty people use past victimization to seek absolution for their crimes. The Menendez brothers, Lorena Bobbitt, abused women who slay their abusers and then hide behind the murky "battered woman's defense," kids who kill because they saw too much violence on television, adults who lash out because of childhood injustices, and women whose acts may be the product of things like PMS and post-partum depression, all leap to mind as examples of a decaying society unwilling to demand individual accountability for criminal acts.
Just as important in our sound-bite society, "abuse excuse" collects our anger in two rhyming words. This phrase seems to define a multitude of complicated issues that explain what's going wrong with us. It also lays blame at the feet of vermin lawyers twisting the legal system to suit their needs. For women, it inaccurately and unfairly lumps them with every miscreant running from responsibility.
I speak from twenty years of defending battered women who fought back against their abusers and two cases of women who killed their children in the grip of post-partum depression. In the vast majority of battered women's cases, their defense is that they acted reasonably in defending themselves, just like any man who acts to defend his life. They are responding to a continuum of abuse rather than some distant damage and they are acting against the person who injured them.
Laws for Men by Men
The problem for many battered women is the law itself. The laws of self-defense are a series of rules of engagement made for men , by men, regulating combat between men confronting strangers of comparable strength. It envisions two gunfighters on a western street as its model. These rules came from English law and were refined in the first century of this nation's existence when women couldn't even vote, much less make the laws. Women didn't sit on the courts that interpreted the law of self-defense; they lived in a country that allowed their husbands to beat and rape them well into the twentieth century. Women still earn less than three quarters of the pay for the same work done by men. It is absurd to believe that laws that denied equality to women in their lives would have guaranteed them equality when defending their lives. Twenty years ago women who argued self defense listened to judges instructing juries describing the law with only male pronouns.
Battered women's self-defense cases focus on leveling the legal playing field. Expert witnesses explain that it isn't so easy for a woman to leave an abuser thereby ending the need to use violence as a defense. These experts describe the poor performance of the police, courts, prosecutors, judges and a society that makes leaving more dangerous than staying. They explain how this inability to escape heightens reasonable fear and that the male definition of imminent danger often deprives a woman of any chance of survival.
The imminence standard in self-defense cases is a major problem for women. In American law, a person has the right to use deadly force in self-defense when the danger of harm is imminent or immediate and the person killed is the aggressor. This is the picture of Gary Cooper in "High Noon" waiting for the bad guy to go for his gun first. In such a scenario most women would be dead. A woman may need to strike before her abuser has his hands on her throat, or when his back is turned. A woman who confronts a cocaine crazed man with a gun who promises to kill the bitch before the sun rises, as in the case of one woman I represented, may need to act when the batterer's guard is down . . . or die. In most American courts, that woman will be found guilty because the male standard of imminence - - - the harm threatened must be happening or about to happen - - - is a test never constructed to protect women.
These cases do not argue that retribution is justified because of prior abuse; rather, they ask us to fairly understand the circumstances confronting a battered women.
An act of retribution should be a crime for a man or a woman. Sometimes, battered women are found guilty of lesser crimes like manslaughter when they acted violently after years of abuse. Most states accept that a person acting in the "heat of passion" may be less culpable than the person who acts in cool deliberation. Ironically, this mitigation of responsibility originally protected the man who killed his wife after finding her in the arms of another man or was provoked by her incessant conduct. Until recently, Texas completely excused the man who shot his wife and lover in the act of unfaithful sex. Not too many years ago a Maryland judge barely tapped a wife-killer on the wrist as he mused that any man summarily provoked could understand how the killer was driven to it. No cries of abuse excuse were raised against the Maryland murderer.
In cases of post-partum depression, a woman may kill her child in the grip of a mental illness. She has no greater capacity to stop it herself than any one of us has to prevent catching the flu. The death of an innocent child is an emotion provoking tragedy. But, the measure of a civilized society lies in part in its capacity to distinguish evil from illness. None of us would have difficulty excusing from criminal responsibility a flailing epileptic who caused injury during a seizure. Maybe the seizure we can see is easier to accept than the one we can't.
There is no catchy two word phrase to distinguish the battered woman and the mentally ill mother from the killer who claims he ate too many twinkies as a child and was driven to hold up liquor stores as an adult. This country was created to protect individual rights, to judge a person on the particular facts of his or her case. This is necessarily time consuming and complex. It is difficult to admit that a history of denial of equality to women may deprive them today of a level playing field in our halls of justice.
Our failures to live up to the task speak to our lack of responsibility, to our societal indifference to injustice, and are no excuse for our abuse of the individual. Our anger expressed in the phrase "abuse excuse" says more about us than the women we condemn.