NCJ Number
147452
Date Published
1992
Length
11 pages
Annotation
The defense raised by battered women who kill their abusers is discussed.
Abstract
This essay discusses the special challenge presented to the criminal justice system by battered women who kill their abusers in perceived self-defense. Although self-defense first appeared in the common law as an excuse, in the 20th Century it has been classified as a justification. Justified conduct is otherwise criminal conduct that under particular external, objectively identifiable circumstances did not harm society. Under these circumstances, it was the exact opposite of a discouraged criminal act; it was an encouraged desirable course of conduct. Few cases in which self-defense is claimed, however, fit the model of a justification. The problem is that self-defense constitutes self-help, and self-help is inimical to the rule of law. Battered woman's defense cases are illustrative of this policy conflict. To justify a battered woman's use of deadly force in self-defense may result in the encouragement of self-help as the preferred solution to domestic abuse. On the other hand, to convict or to excuse women who act in self-defense is to treat women as inferior to men whose defensive acts are justified. According to the author, the solution to this dilemma is to return self-defense to its original theoretical basis as an excuse in all cases. This would accommodate the defensive needs of battered women and other individuals who act in subjectively reasonable fear given their social reality. It would allow the factfinder to consider the defender's subjective beliefs without risking the possibility that all bona fide defensive acts, no matter how objectively unreasonable, will be condoned by the criminal law. It also would further the criminal law's goals of preserving life and discouraging self-help.