by Cathryn Jo Rosen
The American University Law Review
36 Am. U.L. Rev. 11

FALL, 1986

The American University Law Review
FALL, 1986
36 Am. U.L. Rev. 11



Cathryn rosen is an Assistant Professor of Criminal Justice, Temple University. B.A. Case Western Reserve University; J.D., LL.M. Temple University School of Law.


Domestic violence has been a part of American life at least since the first European colonists settled on North American soil. n1 The phenomenon of wife abuse first encountered public recognition in the mid-nineteenth century when it was bemoaned by feminists who  [*12]  sought to improve the societal position of women through legal reforms. n2 To some extent these early feminists were successful. Widespread enactment of Married Women's Property Acts improved the legal status of married women. n3 The liberalization of divorce laws allowed wives to obtain divorces on the grounds of cruelty or misconduct based on physical abuse by their husbands. n4 By the 1870s, courts had begun to convict husbands who victimized their wives of assault and homicide. n5 Consequently, public concern about domestic violence was declining by the turn of the century. n6

These nineteenth century victories, however, were largely illusory. The problem of wife beating by no means disappeared. Divorce was not a viable alternative for most women, n7 and judicial recognition that men were no longer legally justified in beating their wives did not readily translate into increased numbers of arrests or prosecutions for spousal assault and battery. n8 Probably as a result of the rebirth of the women's movement in the 1960s, national attention once again has focused on the problem of domestic violence. Programs and legal reforms designed to cure the problem by arresting, prosecuting, deterring, and/or rehabilitating abusers have begun on a number of fronts. Nonetheless, there is no universally acclaimed panacea for this complex social problem, and attempted solutions have seriously challenged the continued vitality of some tenets of American substantive and procedural criminal law. n9

 [*13]  One aspect of the current legal crisis surrounding domestic violence concerns female victims who strike back and kill their abusers. n10 Often, this resort to self-help results in prosecution of the woman for homicide. American courts and criminal justice officials have a difficult time dealing with these cases because they often involve sympathetic defendants who cannot fairly be blamed for their conduct but who would have no defense if the law was strictly applied. n11

One reason the resulting cases are difficult is that they do not fit neatly into the categories of good and evil drawn by the criminal law. Basically, intentional killing is bad unless it is justified. On occasion, the circumstances in which the battered woman killed clearly indicate that the killing was justified in self-defense. In such cases, the woman acted in response to an overt act of aggression by her husband that created an objectively reasonable fear of imminent death or serious bodily harm. n12 Other cases, however, are more difficult. Despite the defendant's long-term victimization, she most likely would not have been killed or subjected to serious bodily injury on the occasion when she killed her abuser. Sometimes the problem arises because the woman perceived actual or threatened force to be deadly when, objectively, it was not. n13 In other cases, the  [*14]  defendant killed in response to verbal threats unaccompanied by any contemporaneous overt physical aggression. n14 The most difficult cases arise when the defendant killed a sleeping or resting victim, n15 or when the defendant engaged in other behavior inconsistent with self-defense. n16

In the latter half of the 1970s, defense lawyers began to explore avenues to best defend women charged with criminal homicide as a result of striking back and killing their tormentors. The result was the articulation of a theory of justification that has become known as the "battered woman's defense." n17 The defense is designed to persuade the fact-finder that the defendant's status as a battered woman  [*15]  renders reasonable her belief that self-help was justified. Therefore, the defendant should be acquitted because she acted in self-defense.

Sharp debate has surrounded the battered woman's defense ever since the theory's inception. Much of the debate concerns the potential impact the defense may have on the ability of the criminal law to deter battered women from engaging in unnecessary self-help or from killing in revenge or retaliation. n18 Others worry that the defense cannot be confined to battered women and will lead to an undesirable extension of the justification of self-defense to anyone who has a subjective belief that use of deadly defensive force is necessary. n19 The position taken in the debate depends, at least to some extent, upon one's opinion whether the battered woman's defense is simply a specialized application of the rules of self-defense, an extension of the principles of self-defense to particular circumstances in which they otherwise would not be applicable, or an altogether new hybrid defense. n20

 [*16]  Disagreement about the role of self-defense in the legal system and in society as a whole further confounds the debate. Recent years have witnessed demands for broader concepts of self-defense by minority groups in general n21 and battered women in particular. n22 These demands have created considerable tension in the common law approach to self-defense. Simultaneously, a small group of legal academics have been ardently debating the entire structure of common law defenses on a variety of levels. Some scholars simply argue that fair adjudication of affirmative defenses requires adoption of a subjective standard, rather than the traditional objective standard. n23 Others have undertaken the task of systematizing the entire structure of common law defenses. n24 These scholars argue that it is essential to revive the common law distinction between justification and excuse to achieve logic and coherence in the criminal law. The wisdom and usefulness of this endeavor also has provoked substantial debate within the academic community. n25

 [*17]  These two diverse strains of legal developments of the past decade -- the very practical aspects of defending battered women who kill and the highly theoretical debate about the entire structure of the common law criminal defenses -- have much to offer one another. n26 Categorizing self-defense as a justification rather than as an excuse causes the defense to be defined in narrow terms. This is detrimental to the needs of battered women defendants who kill in nontraditional self-defense situations. Accommodation of the conflicting needs of society and battered women who kill can be achieved by a system of criminal defenses based on a revived distinction between justification and excuse. Similarly, the very real demands battered women make on the criminal justice system illustrate the need to reform and systematize the law of criminal defenses.

This Article proposes that classifying self-defense as an excuse will result in more justice for battered women who kill without threatening important values promoted by the criminal law, such as the suppression of private retaliation and the sanctity of human life. The Article will explore first the concepts of justification and excuse. Second, it will examine the historical development of the present law of self-defense, the doctrine's general rules, and its classification as a justification. The discussion then will turn to a description of  [*18]  the battered woman's defense and will evaluate how it has fared under the justification theory of self-defense. Finally, a case will be made for creation of a new defense of excused self-defense that will accommodate many battered women's cases excluded by the justification theory without sacrificing the basic goals of the criminal law.


The prohibitory criminal law suffers from the infirmity of always being overinclusive or underinclusive. n27 For example, the law can prohibit undesirable intentional killings in one of two ways. The law can either condemn all intentional homicides, including those that are beneficial to society, or the law can identify all the specific circumstances that make intentional killings unacceptable to society. Experience has shown this latter method is bound to be underinclusive. n28 In a society that highly values concepts of fair notice and unambiguous statutory statements of criminal law, n29 the first option must prevail in the contest between overinclusiveness and underinclusiveness. Consequently, we draw our criminal law in an overly general fashion and compensate by permitting those who commit criminal acts to defend themselves with claims of justification. n30

Justification defenses identify objectively determinable external circumstances that render otherwise criminal acts acceptable to society. n31 The conduct is paradigmatically wrong but, due to compelling circumstances and proper motive, the case is exceptional and the conduct should not be punished. n32 The act is legal because the circumstances invalidate the normal rules of criminal liability. n33 Consequently, an exception must be made to the prohibitory criminal law.

Each justification defense is defined by a particular set of circumstances  [*19]  under which it is appropriate to disregard the criminal law's prohibition against acting. The law assumes that, when the circumstances that define the justification exist, the defendant has accomplished a socially desirable objective by committing the act or, at least, has not harmed society. n34 Thus, a determination that certain circumstances create a justification constitutes a decision that any person who commits the act under similar circumstances will be justified as well. n35 Indeed, the criminal law desires and encourages justified conduct. n36 In a situation of conflict, the justified act is the act that should prevail. n37

Paul Robinson, a leading proponent of systematization of criminal law defenses, has identified three categories of justification defenses: n38 (1) lesser evils; n39 (2) authorized use of defensive  [*20]  force; n40 and (3) authorized use of aggressive force. n41 All three categories are premised on a balancing notion. An act is justified if the societal harm avoided outweighs the societal harm inflicted. Lesser evils justifications involve relatively easy tasks of balancing the relative importance of the physical harm threatened with the physical harm inflicted. n42 The weighing required for authorized use of defensive and aggressive force is more difficult. Usually, the physical harms are equal -- the taking of human lives. Robinson tips the balance in the defender's favor, however, by emphasizing the importance of weighing more than the comparative physical injuries. Society also has an interest in the right to bodily integrity. When society's interest in the right to bodily integrity and in protection against physical injury are combined, they outweigh society's interest in protecting the aggressor from physical harm. n43

Robinson identifies a uniform internal structure shared by all justification defenses. If certain triggering conditions occur, a necessary and proportionate response is permitted. n44 The necessity requirement has two aspects. First, it requires immediacy of the triggering conditions. n45 One can act only when there is no time to use any method other than criminal conduct to protect or further the interest at stake. n46 Second, the defender may act only to the extent necessary to protect the threatened interest. n47 That is, if nonharmful (i.e., noncriminal) or less harmful alternatives for avoiding  [*21]  the threatened harm are available, the infliction of criminal harm is not necessary or justified. Both aspects of the necessity requirement further the same goal. If justified conduct is noncriminal because it constitutes the lesser evil, the availability of a noncriminal alternative to avoiding the threatened harm defeats the claim. Because the justified conduct still causes a societal harm, it will be exculpated only if the greater harm was certain to occur and if no less harmful alternative was available. Otherwise the justified conduct will not be the lesser harm.

The proportionality requirement serves a similar function. Even when the threatened harm is immediate and no less harmful alternatives are available, the maximum harm that may be inflicted cannot exceed the threatened harm. n48 For example, deadly force never can be used to protect against nondeadly force. If the harm inflicted exceeds the maximum limit, it is not the lesser evil and cannot be justified.

The criminal law tends to apply these standards in a stringent manner in order to narrow the range of conduct that will be excepted from the normal prohibitions of the criminal law. n49 The question is whether, on balance, the act was beneficial to society. A court that broadens the concepts of necessity or proportionality risks erroneous encouragement of harmful conduct. Moreover, because circumstances that are external to the actor define the justification, objective standards must prevail to determine whether the elements exist. n50 A mistake regarding the existence of the triggering condition must be fatal to a claim of justification because it would destroy the balance of interests. Mistaken assessment of necessity or proportionality should lead to the same result. In either case, the balance of relative harms is upset. n51 To hold, as the battered woman's defense requires, that the actor's own experiences and psychological makeup should be considered in determining whether an act is justified is entirely inconsistent with the theory that a justified act is either beneficial or not harmful to society. n52


Justified conduct is conduct that will be encouraged or, at least,  [*22]  tolerated under objectively identifiable circumstances that are not exclusive to the defendant. n53 In contrast, excuse focuses on the actor's subjective perceptions. n54 An excused actor has committed a harmful act that the criminal law seeks to prevent. n55 Unlike a justified act, the excused act did not avoid a greater societal harm or further a greater societal interest. n56 The actor is excused despite the harmful act because, due to internal or external pressure, she was not morally blameworthy. n57 Under the circumstances in which the harmful act was committed, the actor did not have a fair opportunity to choose meaningfully whether to inflict the harm. n58

Because Anglo-American law presumes free will, one who cannot exercise a voluntary choice whether to obey or violate the criminal law is not an appropriate subject of criminal punishment. n59 Consequently, excuses will apply only when the wrongful conduct is substantially more attributable to coercive influences than to free will. n60 Because the act was not voluntary, commission of the wrongful act is  [*23]  not determinative of the actor's moral blameworthiness. Therefore, the excused actor cannot be punished solely on the basis of performing the act. n61 Instead, the relevant question is whether the particular actor can fairly be blamed for having succumbed to overwhelming pressure. n62

Excuse theory allows the fact-finder to consider the whole individual and to evaluate whether, under the circumstances, her life experience enabled her to choose between criminal and noncriminal conduct. If her inability to choose was reasonable or understandable, she is not culpable. The conclusion that she had no real choice is not necessarily the equivalent of a determination that the defendant was mentally incompetent. n63 Rather, it is a recognition that each person's life experiences are different and that consequently each person's reasonable reaction to the same set of external circumstances will differ. n64

Although there is widespread agreement on the general theory of excuse, there is no consensus regarding the proper elements of excuse. n65 The two leading advocates of revival of the distinction between justification and excuse each substantially expand the list of common law excuses. Robinson identifies four situational categories in which lack of free choice renders the defendant nonculpable: (1) acts that were not the product of the actor's determination; n66 (2) defects in perception or knowledge of the physical nature of the  [*24]  conduct or its consequences; n67 (3) ignorance of criminality or wrongfulness of conduct; n68 and (4) impairment of control. n69 Fletcher, on the other hand, identifies four traditional defenses as excuses: necessity, coercion or duress, insanity, and mistake of law when the actor's ignorance of the law is beyond the actor's control. n70 Both authors agree that a reasonable but mistaken belief in the existence of circumstances creating a justification may constitute an excuse. n71

Similarly, both authors propose criteria to limit claims of excuse. Robinson concludes that, to be excused, the actor must suffer from a disability that causes an excusing condition. n72 A disability is a mental condition of the actor at the time of the offense that lessens the possibility that the harmful act was a product of the actor's meaningful choice. n73 The condition may be permanent or temporary, internal or external, but it must have observable symptoms apart from the conduct in question. n74 The disability need not be a mental abnormality. It may be caused simply by a lack of information when the actor cannot be blamed for failing to obtain the information. n75

Fletcher calls for a similar limiting criteria that he terms a "limited temporal distortion of the actor's character." n76 The authors' shared disability requirement serves a variety of functions. The requirement limits the instances of excuse, provides evidence that the actor's free will actually was impaired, and shifts blame from the actor to the disability. Additionally, if an actor is perceived to be abnormal or the victim of abnormal pressures, the actor is excepted from the criminal law without undermining the law's general condemnatory  [*25]  and deterrent functions. n77


A. History

Today most American jurisdictions treat self-defense as a justification. n78 Because self-defense first entered the common law as an excuse, however, exploration of the history of the common law doctrine of self-defense is instructive in revealing whether it corresponds more closely to the rationale of justification or excuse.

Early English common law did not recognize the notion that a killing in self-defense precluded culpability for homicide. n79 All intentional killings were felonious, capital crimes. n80 Prohibition of any form of self-help allowed early English rulers to control violence and establish obedience to the rule of law. If self-help was unlawful, reliance on governmental authority was necessary to protect one's interest in personal safety. n81

Between the twelfth and sixteenth centuries, strict liability for intentional killings began to disappear. n82 Homicides committed to prevent crime, in war, or to carry out the lawful execution of a legal punishment were deemed justified. n83 Such intentional killings admittedly  [*26]  violated the interests of the victim. n84 Nonetheless, under the circumstances, the actor had a legal right to commit the act because it was beneficial to society. n85 The homicides justified by the early common law benefitted society because they were committed on behalf of the state itself against persons who threatened the state's ability to control aggression against persons and property. It was necessary to except those intentional killings from the proscriptions of the criminal law to consolidate respect for the rule of law.

Medieval England also saw the beginnings of the notion of excusable homicide. Self-defense first appeared in the common law as an excuse rather than a justification. n86 One who commits a justifiable homicide is acquitted of the crime because the objective external circumstances that make the killing desirable require exception to the prohibitory criminal law. n87 On the other hand, an excusable act of homicide constituted a crime because an unjustified criminal act invaded a legally protected interest of the victim. Because of surrounding circumstances that affect the defendant in a unique fashion, however, the defendant is not culpable because he has no free choice whether or not to comply with the criminal law. n88 A medieval English defendant who acted in self-defense was probably presumed to have had no real choice whether to act because of the natural human instinct for self-preservation -- an instinct inconsistent with the need for social control. n89 Precisely because self-help was contrary to societal needs, in medieval England an excused homicide was merely pardonable. Although the defendant who acted in self-defense was saved from capital punishment, his property was still subject to forfeiture n90 and he suffered other civil disabilities until the royal pardon was granted. n91

As time passed, pardons became increasingly ministerial until, by the early nineteenth century, self-defense was regarded as a complete excuse in England. n92 As the practical difference between justification  [*27]  and excuse disappeared, other distinctions between the two categories of defenses also began to fade. Late in the nineteenth century, at least one legal scholar declared that the categories no longer bore any legal consequence in English law. n93 In the United States, the technical distinctions between justification and excuse also faded although the labels continued to bear some rhetorical significance. n94 As codification of the criminal law progressed in the mid-twentieth century, many state codes categorized self-defense as a justification rather than as an excuse. n95

The theoretical implications are clear. One has a legal right to kill in self-defense. Moreover, such intentional homicides are encouraged because they are not harmful to society and may be beneficial. Yet the criminal law's general goal of reducing the amount of violence in society remains the same. n96 To harmonize the principle that killings in self-defense are justified with the principle that human life is the highest value protected by the law, the range of defensive conduct that will be justified must be narrowly circumscribed. The result is a legal environment that is inhospitable to the battered woman's defense.

B. The Modern Law of Self-Defense

The criminal law normally penalizes those who intentionally inflict or attempt to inflict physical harm. n97 There is general agreement, however, that intentional infliction of physical harm upon another is not culpable when it is inflicted in self-defense. Thus, a person who kills in self-defense will be acquitted of homicide.

Although exceptions persist, most American jurisdictions define self-defense in a similar manner, with a few common variations. n98 The definition of self-defense is designed to permit a person to use self-help against an unlawful aggressor when there is no opportunity  [*28]  to resort to the criminal justice system for protection. n99 Not surprisingly, the elements of self-defense correspond to the components of all justification defenses that Robinson has identified. n100 An intentional killing will be justified n101 when the following requirements are met:

1. An actor can only defend herself against what she reasonably believes is unlawful force. n102

2. The amount of force must be proportionate to the threatened force. n103 Deadly force n104 may not be used unless the actor reasonably believes that she is protecting herself against infliction of death or serious bodily harm. n105

3. The actor must reasonably believe that it is necessary to use force to prevent the threatened harm. n106

4. The actor must reasonably believe that the adversary's  [*29]  threatened use of force is imminent. n107

A determination that an intentional killing is justified because it was committed in self-defense carries certain doctrinal implications. Anyone who intentionally kills another person under the same circumstances will be justified as well. The aggressor/victim has no right to defend against the justified actor's defensive act or against the equally justified acts of third parties who may come to the defender's aid. Any person who confronts the same circumstances as a person acquitted on grounds of self-defense has a legal right to kill; indeed, the law encourages her to do so. n108

Because the ramifications of an acquittal on grounds of self-de-fense extend far beyond the particular case under adjudication, the law of self-defense is designed to ensure as closely as possible that  [*30]  the justificatory grounds exist. n109 To be justified, the defensive act must cause less societal harm than the harm that the victim/aggressor threatened. n110 The requirement that the victim's threatened aggression be unlawful permits the devaluation of the aggressor's life and interest in bodily integrity relative to the defender's. n111 If the victim's aggression was not unlawful, the victim's interest in life cannot be devalued. The comparative harms will be equal and the defensive act will not be justified. n112 Thus, a killing in self-defense by an actor who mistakenly believes that the threatened aggression is unlawful should not be a justified act. n113 Expanding the prerequisites of self-defense to allow reasonable mistakes regarding the unlawfulness of aggressive force increases the risk that taking of innocent lives will be encouraged.

Even when the triggering condition for self-defense -- unlawful aggression -- is present, the common law requirements of proportionality, necessity, and imminence must be met to achieve the proper balance of harm. n114 The amount of force employed by the defender must be proportionate to the threatened aggressive force. If deadly force is used to defend against nondeadly force, the harm inflicted by the actor (death or serious bodily harm) will be greater than the harm avoided (less than serious bodily harm). Even if deadly force is proportionate, its use must be necessary. Otherwise, unlawful conduct will only be justified when it involves the lesser harm of two harmful choices. If countering with nondeadly force or with no force at all avoids the threatened harm, defensive use of deadly force is no longer the lesser evil of only two choices. Alternatives involving still less societal harm are available. Indeed, in many cases it may have been possible to avoid unlawful conduct altogether. The same consideration underlies the imminency requirement. The  [*31]  resort to deadly force must be a last resort; there must be no time left to summon police or other aid, or for the aggressor to change his mind. n115 If the aggression has already occurred, the force will be vengeful or punitive rather than defensive and cannot be justified. n116

As in unlawful force, the closer the courts adhere to the requirements of proportionality, necessity, and immediacy, the greater the certainty that some harm was sure to occur and that the defensive conduct constituted the least harmful alternative. Expanding these requirements risks more than deviation from the theoretical basis of justification. It means that self-help will be encouraged and condoned as an individual's legal right in a greater variety of circumstances. This, in turn, increases the risk that mistakes will be made in evaluating whether circumstances give rise to a legal right to kill in self-defense and that more lives will be taken unnecessarily.

Most American jurisdictions treat a reasonable but mistaken belief that the circumstances necessary for self-defense existed as justified self-defense. n117 Acceptance of a reasonable but mistaken belief that justificatory circumstances existed appears to be based on the theory expressed in Justice Holmes' oft-quoted statement that "[d]etached reflection cannot be demanded in the presence of an uplifted knife." n118 Moreover, because even hindsight does not always reveal what options may have been available or whether the aggressor/victim actually would have carried out his threat, requiring absolute accuracy in assessing whether the defensive force was proportionate, necessary, and immediate is impossible. This rationale, however, is more consistent with excuse theory than justification theory. Because the threat creates coercive pressure that may limit freedom of choice, excuse analysis is appropriate. n119 Justification cannot be the proper theoretical basis for the acquittal if there was no actual imminent unlawful deadly aggression.

Although there is nearly universal agreement that reasonable but mistaken beliefs are acceptable bases for defensive action, there is disagreement among American jurisdictions as to whether an objective n120 or subjective n121 standard of reasonableness should be  [*32]  used. n122 Without resolving that issue, it is clear from the discussion above that justifying even reasonably mistaken defensive conduct under an objective standard is troublesome. Subjective standards inevitably increase the number of mistakes that will be held reasonable and therefore increase the extent of killings that will be justified on grounds of self-defense despite their incompatibility with the theoretical basis of justification. This creates difficulties because, although it is harmful, such conduct is nonetheless deemed justified under current law. Therefore, future actors confronted with the same circumstances have a legal right to do the exact same thing. The result may be to encourage self-help killings when the victim may be innocent or there may have been less harmful alternatives, perhaps including the preferred possibility of resort to the lawful processes of the criminal justice system.

To a large extent, the fear that accepting the battered woman's defense as justified self-defense may be interpreted as granting victims of domestic abuse a license to kill their abusers arises because the defense requires use of a subjective standard of reasonableness and a substantial expansion of traditional concepts of proportionality, necessity, and immediacy. Although the concern that the defense will be interpreted as a license to kill may not be legitimate, n123 the pressure imposed by the battered woman's defense on the theoretical underpinnings of justified self-defense is very real. n124 If self-defense was classified as an excuse, the battered woman's defense  [*33]  could be incorporated easily into the law of self-defense without raising these concerns.


Defining the battered woman's defense is not an easy task. The literature is full of claims that the defense is misconceived. n125 Yet, even those authors who bemoan the misconceptions have difficulty arriving at a cogent definition of the term. Indeed, use of the term at all is widely disparaged. A number of writers repeatedly emphasize that the theory should be denominated "women's self-defense," n126 perhaps to dispel the notion that there is a special exception to the normal rules of self-defense for battered women. Nonetheless, courts and the media relentlessly choose to adhere to the battered woman's defense phraseology. n127

One explanation for some of the confusion between "self-defense," "women's self-defense," and "battered woman's defense" may lie in the defense's historical developmant. The best descriptions  [*34]  of the battered woman's defense are by feminist lawyers who based their strategy on lessons learned while representing women who defended themselves against male aggression under circumstances that fell outside the setting of traditional self-defense. n128 Self-defense rules were developed to acquit a man who kills to protect himself or his family against a threatened attack from a man of similar size and strength with whom the defender usually has had only a single encounter. n129 Rules requiring like force, imminency of the threatened harm, consideration of only the circumstances surrounding the single encounter, and use of an objective reasonable man standard are more than adequate in such circumstances. Women, however, usually use deadly force to protect themselves under very different circumstances. Usually their male victims are larger and stronger and are not strangers. n130 The woman's fear of the man will be influenced by her knowledge of his character and reputation for violence. n131 Rules requiring like force, imminency, consideration of only the circumstances immediately surrounding the killing, and use of an objective reasonable man standard necessarily defeat the woman's claim. n132

The first successes for the notion of women's self-defense were not battered women's cases. In the early 1970s, feminists rallied to support the defense of Joan Little, a prisoner in a North Carolina jail who stabbed and killed a male guard. n133 Little claimed that she stabbed the unarmed guard because he threatened to rape her. n134 Ms. Little was acquitted on the theory of self-defense despite the  [*35]  arguable absence of equal force. n135

Two years later, Inez Garcia was acquitted by a jury after her second trial on homicide charges. n136 She claimed self-defense. Garcia was physically and sexually assaulted by two male acquaintances. n137 Before leaving the scene, the men threatened to return and rape Garcia again. n138 She took her shotgun and went to search for her assailants. n139 Several hours later she found one of the men on a street and shot and killed him. n140 Judged by an objective standard of reasonableness, Garcia's motive appeared to be vengeance rather than self-defense. The jury, however, was permitted to consider the defendant's ethnic background, her rape, and the men's threat to repeat their attack when determining whether she reasonably believed that the use of deadly force was necessary to avoid an imminent threat of serious bodily harm. n141

Soon acquittals of women, including battered women, who pleaded self-defense became common in many jurisdictions. n142 The most important appellate victory for the feminist advocates of women's self-defense was in a case that did not involve a battered woman. In 1977, the Washington Supreme Court reversed Yvonne Wanrow's second degree murder conviction in a decision holding that use of the reasonable man objective standard of self-defense violated Wanrow's right to equal protection of the law. n143 Wanrow shot an intoxicated, unarmed man whom she knew had a reputation for violence when he approached her in a threatening manner. n144 At the time, Wanrow, who was five-foot-four, had a broken leg and  [*36]  was using a crutch. n145 Recognizing that Wanrow's fear and perception of danger was affected by her status as a woman, the court held that use of the reasonable man standard in the jury instructions was improper because it deprived Wanrow of the right to have the jury consider her conduct in light of her own perceptions. n146 The court directed that the jury on retrial should be instructed to apply a subjective, sex-specific standard of reasonableness. n147

Little, Garcia, and Wanrow involved situations in which an objectively reasonable observer of the confrontation would not have perceived that the aggressor threatened imminent death or serious bodily harm to the defendant nor have believed that defensive use of deadly force was the only alternative available. Application of traditional rules of self-defense inevitably would lead to a murder conviction. Defense counsel were able to persuade the courts that their mistaken beliefs that the circumstances justified self-help were subjectively reasonable given the particular experiences and perceptions of the defendants.

The same problems occur in battered women's cases, often in more extreme forms. n148 In the late 1970s, feminist lawyers began to outline a defense strategy for battered women who kill their abusers. n149 They combined the women's self-defense theory developed in cases like Little, Garcia, and Wanrow with the use of expert testimony on the psychological impact of an abusive relationship on battered  [*37]  women. n150 The feminists assumed from the start that homicides committed by women are equally reasonable as homicides committed by men. n151 The defense strategy is to persuade the judge and jury that a variety of social factors cause women to perceive imminent, lethal danger in situations where men would not. n152 Although stemming from unique factors, women's perceptions of danger demand equal recourse to deadly force. n153 This argument is necessary because traditional self-defense, permeated as it is by male experience, does not acknowledge that a woman's response to a set of circumstances could be reasonable even though it was different than a man's response to the same set of circumstances. n154 Rather than requesting that battered women receive special treatment from the law, the creators of the defense hoped to encourage application of the law of self-defense in a sex-neutral, individualized manner to all women, including those who kill their abusers. n155

The feminists proposed to obtain equality under the law by removing stereotypical myths and misconceptions about battered women from the trial process. n156 Yet their self-defense theory for battered women who kill depends upon persuading the judge and  [*38]  the jury to accept an alternate set of factual generalizations about women in general, battered women in particular, the efficacy of the criminal justice system, and society. These assumptions, which serve to remedy the failure of battered women who kill to prove the traditional elements of self-defense, include the following:

1. Women find it necessary to resort to self-help because the courts and police do not provide them with adequate protection from their abusers. n157 Therefore, even in the absence of an imminent or immediate threat of harm, their belief that self-defense is necessary may be reasonable. n158

2. A woman's perception of danger will be affected by her smaller size, socialization regarding passive attributes of femininity, and poor physical training. Therefore, it is perfectly reasonable for a woman to believe an unarmed man may be able to kill her. n159

3. A woman may reasonably feel the need to use a weapon to protect herself from an unarmed assailant. n160

4. Consideration of surrounding circumstances should not be limited to the time immediately preceding the killing. Prior conduct of the victim toward defendant will influence her perception of the dangerous nature of his behavior at the time of the homicide. Prior specific acts of violence should be admissible as well as the victim's general reputation for violence. n161

 [*39]  5. Defendant's rage and desire for revenge is not inconsistent with self-defense. n162

These assumptions widen the scope of relevant testimony and constitute the framework for the argument that the defendant's belief that self-defense was necessary was subjectively reasonable. Borrowing from Fletcher's writings, the feminists argued that the reasonableness of the woman's act of self-help should be adjudged in a sex-neutral, individualized manner in which the individual defendant's characteristics and culpability are relevant. n163 The jurors should be instructed to place themselves in defendant's shoes and determine under all the circumstances, including defendant's history as a battered woman, the reasonableness of defendant's belief that use of deadly force was necessary.

Among the trial tactics the creators of the battered woman's defense recommend is the careful and strategic use of lay and expert testimony to neutralize stereotypical prejudices and ideas that may interfere with the jury's ability to perceive the defendant's conduct as a reasonable act of self-defense. n164 Although the expert testimony may take numerous forms, many defense attorneys have used expert psychiatric or psychological testimony. Often it consists primarily of a description of Dr. Lenore E. Walker's cycle of violence and learned helplessness theories which together constitute the battered  [*40]  woman syndrome. n165 The expert will describe the battered woman syndrome in general terms after which she may be permitted to testify that the defendant suffers from battered woman syndrome. n166

 [*41]  Expert testimony is used to show why, under the particular circumstances of the case, the defendant's conduct was reasonable and, therefore, justified. n167 Theoretically, the woman's defensive action will be proved necessary and proportionate by showing how the defendant could perceive a threat of imminent danger in verbal threats alone, in a nondeadly attack from an unarmed spouse, or from a sleeping man. n168 The testimony explains why the woman stayed with her spouse despite the abusive relationship and why, on the occasion in question, she may not have run away or sought assistance from friends, relatives, or the police despite an apparent opportunity to do so. n169 Finally, the testimony explains why the woman cannot be faulted for becoming involved in an abusive relationship. Rather, she is a victim of her social reality, responding to circumstances in accordance with the values of femininity and lifelong marriage to which she was acculturated. n170

 [*42]  The problem is that such an inquiry is inconsistent with the theory of justification which assumes that anyone who does the same act under the same external circumstances has done the right thing. n171 By including a certain psychological trait of the individual in the circumstances, we have moved closer to the theory of excuse than to justification. n172 Nonetheless, the feminist theory is based on the premise that explanation of the reasonableness of defendant's belief that use of deadly force was proportionate and necessary will establish that the woman's act was justified rather than excused. n173 Feminists argue that recognition of the woman's act as justified rather than excused is crucial.

[E]xcusable self-defense would imply that her response was typically and idiosyncratically emotional. The doctrine would perpetuate the views that the woman could not have been rational in assessing the danger and that the legal system must compensate for her mental and physical weaknesses. . . .

Justification, on the other hand, would assume that society values a woman's and a man's lives equally, and thus considers women's lives worthy of self-defense. It would recognize that a woman has the capacity to correctly and reasonably perceive that the act is warranted, legitimate, and justified. Justification would encourage, indeed would compel, a legal recognition that a woman's capacity for reasonable judgment -- comparable to that of a  [*43]  man's -- can be the basis for engaging in the "correct behavior" of self-defense. n174

This doctrinaire insistence on treatment of the battered woman's defense as a justification is unnecessary and may be fatal to widespread and successful use of the battered woman's defense. Most battered woman's defense cases involve situations in which the defendant was not, in fact, in imminent danger of death or serious bodily harm at her victim's hands. n175 The defense relies on persuading the jury that defendant suffered from an identifiable psychological syndrome that caused her to assess the dangerousness of the situation in a different manner than an average, ordinary person -- including a woman who does not suffer from battered woman syndrome. In other words, acquittal is dependent upon proving that defendant had, to use Robinson's terminology, a disability that caused a mistaken, but reasonable, belief in the existence of circumstances that would justify self-defense. n176 It is a theory of excuse rather than of justification. n177 Because defendant responded to internal and external coercive pressures, for which she was not responsible but which were created by her social reality as a battered woman, she is not to blame for her conduct. A person who did not suffer from battered woman syndrome, however, would be culpable under identical external circumstances. Indeed, successful use of the battered woman's defense theory depends in part on defense counsel's ability to persuade the court and jury that a person who did not suffer from battered woman syndrome would not be justified under identical objectively identifiable circumstances. n178 This,  [*44]  however, is inherently inconsistent with the concept of justification.

Efforts to characterize artificially the battered woman's defense as a justification must ultimately lead to some of the current misapprehensions as to its nature and the fears that its adoption will ultimately lead to justification of all killings that the defendant subjectively believed were necessary and proportionate. Conversely, it may explain, in part, the tendency to incorrectly view battered women as bearing a special right to self-defense based on their victimized status alone. n179 Recognition that the defense is categorized properly as an excuse rather than a justification may enhance the ability of battered women who kill to win acquittals. To present a complete defense, a defendant would still have to show that her belief that justificatory circumstances existed was subjectively reasonable. Because the defendant is excused rather than justified, however, there would be no chance that the conduct will be encouraged. n180

The fact that the battered woman's defense is more consistent with excuse theory does not answer the feminist concern that excusing battered women who kill, in circumstances they believe create a right of self-defense, may perpetuate undesirable views that women are by nature irrational and that their lives are unworthy of self-defense against a man. n181 First, however, these concerns are overblown. Treatment of the battered woman's defense as an excuse does not preclude justifying women who kill men under objectively identifiable circumstances more akin to traditional self-defense. n182  [*45]  Second, for the same reasons that battered women should be excused for killing their spouses, men who kill under mistaken beliefs as to justifying circumstances should also be excused. n183 Third, even if treatment of the battered woman's defense as an excuse does lead to perpetuation of sex discrimination under the current law, it may be that the problem should be cured in a different manner than the feminists recommend. All self-defense should be treated as excused rather than justified conduct. Indeed, the difficulties that the courts and commentators have encountered with the battered woman's defense vividly illustrate the need for such a reconceptualization of the defense. Excused self-defense would better meet the needs of battered women, of the criminal justice system, and of society in general. n184


Today, most American jurisdictions classify self-defense as a justification even though it traditionally developed as an excuse. n185 As a result, principles of excuse have become merged with principles of justification in the law of self-defense. Consequently, results in some cases are illogical and inconsistent with basic principles of criminal law. n186 The problem is particularly apt to arise when demands are made to justify self-help behavior that is harmful to society in instances where the actor cannot fairly be held blameworthy because of circumstances particular to that individual. n187 Battered women who kill their abusers present the paradigm example of such cases. Although the defendant's conduct is understandable, and absolving  [*46]  her from moral blame is not difficult, we are hesitant to proclaim that the act was justified and therefore to be encouraged. Even in traditional cases, self-defense is, at most, permissible and tolerated. n188 Treatment of all self-defense as an excuse would further the criminal justice system's interest in discouraging self-help, promote society's interest in preserving the sanctity of human life, and fulfill the feminist goal of absolving battered women who kill of guilt without proclaiming that such women are inferior to men.

Justification requires that the actor chose to violate the criminal law only because it was the lesser of a necessary choice of evils. n189 Classification of self-defense as a justification, therefore, requires that the defender's interest in life be regarded as superior to that of the unlawful aggressor's. n190 The act is accordingly one that is encouraged because it was beneficial to society or at least created no harm. The qualitative balancing act required to justify killings in self-defense, however, is not easy to perform. n191

The law's prohibition against intentional killing coincides with contemporary society's emphasis on the importance of human life as the most valuable interest protected by the criminal law. n192 Clearly, however, there are also circumstances when intentional killing is justified because of the benefit it confers upon society as a whole. The intentional killings originally justified by the criminal law illustrate such situations. n193 For example, one who kills a military enemy in battle is justified, as is the officer who kills to prevent an act of terrorism  [*47]  or to apprehend a person who has taken others hostage. Similarly, if we assume for the moment that capital punishment is acceptable, the executioner's act of killing the condemned is certainly justified. n194 In all of these circumstances (the list is not exclusive), one life is taken to save many lives and to enhance the power of the rule of law. And, except in the instance of war, arguably the person whose life has been taken already has been shown to be dangerous and a threat to society as a whole.

A classic self-defense case involves a situation in which the actor takes the life of another to save the actor's life. n195 One life has been chosen over one other life and the choice has been made in contravention of the legal rule generally prohibiting intentional killings. In the best of cases, it is difficult to identify any benefit that might accrue to society in general as a result of the killing. n196 Moreover, the common law has always had great difficulty making judgments that one human life is more valuable than another. n197 The result is the rule that a person can only defend against unlawful force. n198 Yet, even this rule, the basis of which is uncertain, does not entirely solve the problem. First, modern criminal codes, for the most part, classify at least those cases in which the mistake was reasonable as justified self-defense. n199 The closer the law moves toward a subjective standard of reasonableness, the greater the threat to the attacker's basic human rights. The extent of the attacker's rights would be defined solely by the victim's judgment of what was the right response under the circumstances. n200 Indeed, cases involving  [*48]  mistake regarding the perception that the victim was threatening unlawful deadly force could result in the taking of an entirely innocent life. The killing of an innocent victim cannot be justified rationally. Society has been harmed by the taking of an innocent life and the actor can only be acquitted under an excuse theory. n201 Second, even an unlawful aggressor is not necessarily a threat to all society. The attacker may only be a threat to one other person, the defender. Therefore, self-defense can only be the lesser evil if the interests of the defender that the aggressor threatens are greater than the aggressor's interest in life.

A variety of theories have been suggested to support the relative devaluation of the unlawful aggressor's life. Robinson postulates that, although the relative physical harms to be suffered by the defender and the aggressor are equal, the defender also has an interest in bodily integrity. When the right to bodily integrity is added to the defender's right to be free from physical injury, the aggressor's interest in freedom from physical injury is outweighed. n202 This view, however, is problematic because it blithely ignores the fact that the aggressor must also have a right to bodily integrity. n203

Essentially, Robinson's theory is a forfeiture theory. The idea behind the moral forfeiture theory that self-defense is correctly classified as a justification is that by virtue of his act of aggression, the aggressor forfeits some interest or right he would otherwise have had -- such as the right to bodily integrity, his interest in life, or his right to freedom from aggression. The forfeiture theories cannot withstand a number of difficulties. n204 If the defender is mistaken as to the unlawfulness of the aggression, his act will still be justified. Yet, it is difficult to say that one whose aggression was not unlawful has waived any rights. n205 Even when the aggressor's conduct is actually unlawful, there are difficulties. The criminal law generally  [*49]  does not permit express consent to one's own death. n206 Yet, any forfeiture theory presumes that the victim's act of aggression constitutes implied consent to the use of defensive force.

Ultimately, there probably is no acceptable calculus to support treatment of self-defense as a justification. Its modern classification as such is likely the product of historical accident. If the law were to recognize that even traditional self-defense is properly considered an excuse, the nonculpable defensive acts of many more people could be excepted from punishment without the threat of escalating societal violence.

The difficulty in devaluing the life of the aggressor is particularly acute in some battered women's cases. Many men who abuse their spouses never display aggressive or violent behavior outside the confines of their homes. n207 Certainly, perpetrators of domestic violence  [*50]  are not nice people. Yet, it is doubtful that anyone seriously could argue that ridding society of people merely because they are not nice benefits all. n208 Feminists assert that the abuser's intent to kill or seriously injure his wife makes his death nonharmful rather than his character as a wife-beater. n209 A victim of battered woman syndrome, however, may be mistaken as to the true nature of her spouse's threats on a particular occasion. Even if the mistake is reasonable or if there is no mistake, the difficulty with the calculus remains. Proponents of the battered woman's defense sympathize so much with the defendant that they have a tendency to focus exclusively on the psychological and physical harm suffered by the woman while forgetting the abuser. His right to life, though, is equally important as the woman's. n210

One of the most difficult problems confronted by legal theorists is the question of whether killing a legally insane aggressor in self-defense can be justified. Forfeiture theories of self-defense that rely on devaluing the aggressor's interest in life, freedom from aggression, or bodily integrity because of his wrongful conduct disintegrate in cases where the aggressor is not culpable. n211 This  [*51]  problem is particularly acute in battered woman's defense cases. If we sympathize with the women as being victims of their social reality, we must sympathize with the batterers as well. Abusers are not entirely morally reprehensible. According to psychological and sociological literature, they also are victims of "disease" or of their social reality. n212 This makes it even more difficult for the legal system to determine that the abuser's life is less valuable than his victim's. n213

The most that can be said in battered woman's defense cases, as in all self-defense cases, is that society is neutral with respect to the killing. By treating such cases as instances of excuse rather than justification, the difficulties created by weighing qualitative values of human lives and according a lesser interest to a potentially "innocent" person can be avoided. An excuse analysis would lead to identical results -- acquittal -- but do so by focusing on the pressure confronted by the defendant and the lack of available options. n214

It is difficult to identify a positive benefit that accrues to anyone other than the killer from the taking of an aggressor's life in self-defense. n215 Thus, there is no reason for the law affirmatively to encourage such conduct. To the contrary, classification of self-defense as a justification may be detrimental to society. The early common law failed to recognize self-defense as either a justification or an excuse because self-help was inimical to the goal of creating respect for the rule of law and, in turn, for governmental authority. n216 Although lack of respect for properly constituted legal authority is not generally a problem today, the law still serves a vital function of discouraging self-help. n217

 [*52]  There are a number of reasons why self-help is contrary to the interests of modern society. Reliance on self-help tends to diminish respect for the rule of law. n218 Self-help in the form of self-defense carries the additional problem of increasing the quantum of violence in an already violent society. More troublesome is the possibility that the more widespread resort to self-help becomes, the more often innocent people may be killed erroneously. n219

It is troublesome even when a person who is guilty of a crime becomes the victim of proper self-help. The constant decline in the number of capital crimes throughout American history attests to the general view that only the most vicious of intentional killers deserve to die for their deeds. n220 We cling to the hope that criminals can be reformed, or at least deterred, if only they are subjected to incarceration, institutionalization, or community corrections. Most persons killed in self-defense would not have been eligible for capital punishment if duly convicted of their threatened crimes. n221 This is particularly  [*53]  true of many of the abusive husbands in battered woman's defense cases. n222

The proportionate force, necessity, and imminence prerequisites for self-defense are designed to quiet the law's uneasiness about encouraging self-help. n223 The requirement that deadly force only be used to counter deadly force is geared to ensure that the aggressor, in fact, will commit an intentional homicide if not met with defensive force. n224 One must suffer nondeadly harm if use of deadly force would be the only way to avoid it. The necessity rule seeks to limit the use of self-help to circumstances in which there is absolutely no other alternative to striking back against the aggressor. It is intended to encourage the defendant to seek, in the first instance, nonviolent or nondeadly defensive means. By requiring strict necessity, it is hoped that use of deadly force in self-defense will be considered only as a last resort. Finally, the imminence requirement is meant to restrict self-defense to those situations where there is no time to turn to actors in the criminal justice system to do their designated job and save the defendant from the need to resort to self-defense. Relaxation of any of these strict, narrow requirements raises the spectre of justifying, and thus encouraging, self-help -- conduct that the law and society prefer to discourage. n225

The battered woman's defense requires relaxation of all of these requirements. n226 Rather than limiting the determination of whether these elements of the defense have been met to very limited, objectively ascertainable circumstances, defenders of battered women ask the courts to consider circumstances that would be unknown to the casual observer. Factors such as relative strength, the defendant's physical training, and the defendant's prior experiences with and knowledge about her victim are neither external nor objectively identifiable. Consideration of such circumstances is not compatible  [*54]  with the notion of self-defense as behavior that is justified and should be encouraged. n227

Even more worrisome, however, is the assumption underlying the battered woman's defense that self-defense is necessary in some situations -- even when the threatened attack is not imminent -- because the criminal justice system has not adequately protected women. n228 This assertion supports the feminist demand that the concepts of imminence and necessity be broadened. Yet, it is exactly this notion that the law must suppress. For the logical corollary is that any person who believes, reasonably or unreasonably, that the criminal justice system does not offer adequate protection can resort to self-help even though there may have been sufficient time to summon the aid of lawful authority. Even when we understand the actor's unusual need to resort to self-help, the actor's behavior may still be dangerous to society. n229 If self-defense is a justification and if justified conduct is conduct we consistently encourage because it benefits society whenever similar circumstances arise, n230 the defense cannot rationally be expanded to encompass the battered woman's defense. n231 Indeed, it may be that if those who suffer from battered woman syndrome or other psychological trauma induced by their social reality are more likely to kill in self-help, the criminal law should be doing even more than it currently does to prevent them from doing so. n232 Domestic abuse is a serious societal problem but  [*55]  promotion of vigilantism is certainly not the solution. n233 Treatment of self-defense as an excuse allows the judge to make a determination that it would be unjust to convict the defendant while at the same time avoiding a determination that defendant did the right and just thing and the consequent risk of increasing the quantum of violence in an all too violent society. n234

Just as the early common law's difficulty with condoning self-help has survived into late twentieth century America, the conflicting recognition that an individual whose life is threatened cannot be expected to die meekly also has survived. n235 When self-defense is categorized as an excuse, it reflects the community's understanding that, under all the circumstances, the defendant understandably believed that she had no option but to kill or be killed. n236 Although self-help should not be affirmatively encouraged, the pressure to resort to self-help can be understood. A person who submits to these pressures is not culpable and should not be convicted of any crime. n237


Battered women who kill their abusers in perceived self-defense present a special challenge to the criminal justice system, especially to the evolution of the law of self-defense. Although self-defense first appeared in the common law as an excuse, in the twentieth 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. Often battered women use deadly force in self-defense under external circumstances where their act is not objectively reasonable. The woman's status as a battered woman makes her resort to deadly force understandable; it is subjectively reasonable. It is, therefore, easy to conclude that the woman is not to be blamed for her actions and should not be convicted of homicide. To hold that she acted in self-defense, however, is a determination that her act was justified. To justify such conduct 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.

The solution to this dilemma is to return self-defense to its original theoretical basis as an excuse in all cases. Excuse recognizes that, even though self-help may not be desirable and may harm society, such conduct often results from a person's understandable inability to choose an alternative course of action due to overwhelming external or internal pressures. Treatment of self-defense as an excuse accomodates the defensive needs of battered women and other individuals who act in subjectively reasonable fear given their social reality. It allows the fact-finder 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. Concomitantly, it furthers the criminal law's goals of preserving life and discouraging self-help.

n1 See Oppenlander, The Evolution of Law and Wife Abuse, 3 LAW & POL'Y Q. 382, 386 (1981). Since prehistoric times, society has accepted male use of physical force to achieve dominance over wives and children. Id. at 385-86. Both English common law and ancient Roman law sanctioned the use of such force. Id. Early English settlers transported tolerance of wife beating to North America. Id. at 386. For a discussion of colonial and pre-Civil War treatment of domestic violence in American law, see id. at 385-90; Eber, The Battered Wife's Dilemma: To Kill or To Be Killed, 32 HASTINGS L.J. 895, 897-99 (1981) (explaining that historical acceptance of wife beating stemmed from concepts of marital privacy and subjugation of wives as property of husbands).

n2 See Oppenlander, supra note 1, at 392 (noting that birth of women's rights movement initiated legal restrictions on wife beating).

n3 Prior to the enactment of these laws, women could not own property of any kind. C. THOMAS, SEX DISCRIMINATION IN A NUTSHELL 3 (1982).

n4 Oppenlander, supra note 1, at 393.

n5 Id. at 394. See, e.g., Fulgham v. State, 46 Ala. 143, 146-47 (1871) (holding that husband's use of force to compel wife's obedience is no longer justified); Harris v. State, 71 Miss. 462, 465, 14 So. 266, 266 (1893) (repudiating "revolting" precedent allowing husbands to chastise their wives in moderation); State v. Oliver, 70 N.C. 44, 45 (1874) (warning that courts will intervene when husband inflicts permanent injury or shows malicious violence); Gorman v. State, 42 Tex. 221, 223 (1875) (holding husband liable for assault for whipping wife as punishment).

n6 Oppenlander, supra note 1, at 382.

n7 See Waits, The Criminal Justice System's Response to Battering: Understanding the Problem, Forging the Solutions, 60 WASH. L. REV. 267, 281-82 (1985) (arguing that stigma and economic consequences of divorce have prevented women from leaving battering relationships).

n8 See Eber, supra note 1, at 897-99, 903-11 (noting historical reluctance to arrest and prosecute wife beaters).

n9 It is beyond the scope of this Article to explore the multitude of programs that have been created in the past decade or the voluminous literature that has focused on every aspect of domestic violence. See generally Eber, supra note 1, at 902-17 (discussing remedies available to abused wives); Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HARV. WOMEN'S L.J. 57, 63-72 (1984) (critiquing use of mediation as mechanism for resolving domestic violence); Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense, 15 HARV. C.R.-C.L. L. REV. 623, 635-42 (1980) (arguing that individualization of self-defense law will provide equal treatment for battered women raising self-defense claims); Waits, supra note 7, at 307-27 (favoring modifications to criminal justice system's approach to wife abuse).

n10 Domestic violence occurs in a large variety of permutations and combinations. This Article is confined to situations involving females who have been abused by a male with whom they have a relationship, regardless of whether they are in fact married, living together, separated, or divorced. Thus, although this Article frequently uses terms such as husband, wife, and spouse, the Article is not limited to violence occurring within marriages.

n11 Ann Jones suggests that the problem of defending battered women who kill is fairly new only because the women usually were not prosecuted until the middle of the 20th century. A. JONES, WOMEN WHO KILL 284 (1980). Accordingly, both the police and the courts have pursued an unofficial policy of noninterference for most of the twentieth century. Id. But cf. Wallace v. State, 44 Tex. Crim. 300, 301, 70 S.W. 756, 756-57 (1902) (reviewing conviction of woman who killed husband after he beat and threatened her). In much less recent history, women who killed their husbands were guilty of treason. See Schneider, supra note 9, at 628, 629 n.33.

n12 See, e.g., People v. Reeves, 47 Ill. App. 3d 406, 411-12, 362 N.E.2d 9, 11-12 (1977) (exonerating wife for shooting husband during severe beating); Commonwealth v. Watson, 494 Pa. 467, 472-74, 431 A.2d 949, 952 (1981) (determining that long history of physical abuse and husband's attempt to kill wife immediately before she shot him established valid self-defense). See infra notes 103-05 and accompanying text (discussing use of deadly force in self-defense).

n13 See, e.g., Borders v. State, 433 So. 2d 1325, 1326 (Fla. Dist. Ct. App. 1983) (holding that evidence of defendant's state of mind, relationship with husband, and husband's reputation for violence were necessary to determine reasonableness of defendant's perception of danger); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981) (requiring expert testimony on battered woman syndrome to prove threat of serious bodily harm); State v. Griffiths, 101 Idaho 163, 165, 610 P.2d 522, 524 (1980) (excluding psychiatric testimony to prove that defendant was acting out of fear when she shot her husband); People v. Adams, 102 Ill. App. 3d 1129, 1134-35, 430 N.E.2d 267, 272 (1981) (finding evidence of decedent's intoxication relevant to defendant's self-defense claim); State v. Seelke, 221 Kan. 672, 681, 561 P.2d 869, 875-76 (1977) (noting that evidence showing that defendant was brutally beaten before shooting husband cast doubt on her intent to kill him); State v. Kelly, 97 N.J. 178, 202-05, 478 A.2d 364, 375-77 (1984) (holding that expert testimony on battered woman syndrome is relevant to reasonableness of defendant's belief in imminent bodily harm); State v. Norris, 303 N.C. 526, 531-32, 279 S.E.2d 570, 573-74 (1981) (allowing defendant to establish imperfect self-defense regardless of whether she was aggressor or used unnecessary force); State v. Thomas, 66 Ohio St. 2d 518, 521, 423 N.E.2d 137, 139 (1981) (concluding that jury can determine reasonableness of defendant's fear without expert testimony on battered woman syndrome); Commonwealth v Zenyuh, 307 Pa. Super. 253, 256, 453 A.2d 338, 340 (1982) (holding fact that husband was not beating wife at time of shooting did not render wife's perception of imminent physical danger unreasonable).

n14 See, e.g., People v. Lucas, 160 Cal. App. 2d 305, 310, 324 P.2d 933, 936 (1958) (holding that verbal threats do not constitute imminent danger); People v. White, 90 Ill. App. 3d 1067, 1068-71, 414 N.E.2d 196, 198-200 (1980) (finding that defendant's belief was reasonable that use of deadly force was necessary after husband threatened to beat her); State v. Fultz, 439 N.E.2d 659, 662 (Ind. Ct. App. 1982) (ruling that pointed finger and inaudible threats do not substantiate reasonable basis for fear); State v. Lynch, 436 So. 2d 567, 568-69 (La. 1983) (justifying shooting after victim threatened to beat defendant); People v. Giacalone, 242 Mich. 16, 19-22, 217 N.W. 758, 759-60 (1982) (finding that defendant's perception of danger was reasonable after husband threatened to kill her and kept loaded gun next to bed); People v. Torres, 128 Misc. 2d 129, 131-35, 488 N.Y.S.2d 358, 360-63 (1985) (determining that husband's threat to kill defendant created reasonable fear of imminent danger).

n15 E.g., People v. Emick, 103 A.D.2d 643, 653, 481 N.Y.S.2d 552, 558 (1984) (defendant killed sleeping husband following hours of abuse); People v. Powell, 102 Misc. 2d 775, 778, 424 N.Y.S.2d 626, 628-29 (1980) (defendant killed her ex-husband as he slept after husband had held her at gunpoint), aff'd 83 A.D.2d 719, 442 N.Y.S.2d 645 (1981); State v. Leidholm, 334 N.W.2d 811, 814 (N.D. 1983) (defendant stabbed and killed sleeping husband after night of abuse); State v. Allery, 101 Wash. 2d 591, 593, 682 P.2d 312, 313-14 (1984) (enbanc) (after finding her estranged husband in her home despite restraining order, defendant killed husband as he rested due to prior threats to kill her); State v. Felton, 110 Wis. 2d 485, 492-93, 329 N.W.2d 161, 164-65 (1983) (defendant killed sleeping husband following history of persistent abuse of herself and her children).

n16 See, e.g., Ibn-Tamas v. United States, 407 A.2d 626, 630-31 (D.C. 1979) (pursuit of retreating victim); People v. Minnis, 118 Ill. App. 3d 345, 347, 455 N.E.2d 209, 211 (1983) (defendant dismembered and hid husband's body after killing him); People v. White, 90 Ill. App. 3d 1067, 1069, 414 N.E.2d 196, 198 (1980) (wife pursued retreating husband); State v. Seelke, 221 Kan. 672, 673, 561 P.2d 869, 871 (1977) (after shooting three times, defendant reloaded gun and shot again); State v. Martin, 666 S.W.2d 895, 897 (Mo. Ct. App. 1984) (defendant hired "hit man" to kill her estranged husband); Buhrle v. State, 627 P.2d 1374, 1376 (Wyo. 1981) (defendant hid gun and gloves worn to fire gun after shooting husband through partially open motel room door).

n17 There is considerable disagreement as to the most appropriate name for the defense theory. See infra notes 126-27 and accompanying text (discussing debate over correct characterization of defense).

n18 See, e.g., Acker & Toch, Battered Women, Straw Men, and Expert Testimony: A Comment on State v. Kelly, 21 CRIM. L. BULL. 125, 143 (1985) (arguing that battered woman's defense may cause juries to consider woman's conduct legal); Rittenmeyer, Of Battered Wives, Self-Defense and Double Standards of Justice, 9 J. CRIM. JUST. 389, 390 (1981) (asserting that battered woman's defense exploits stereotypes and provides license to kill); Note, Does Wife Abuse Justify Homicide?, 24 WAYNE L. REV. 1705, 1715-16, 1725-26 (1978) (observing that acquittals of abused wives may sanction retaliation and revenge). Cf. Eber, supra note 1, at 930, 930 n.190 (citing commentators who predict that battered woman's defense will lead to "open season on men"). See also State v. Thomas, 66 Ohio St. 2d 518, 521, 423 N.E.2d 137, 140 (1981) (excluding expert testimony on battered woman syndrome because, inter alia, it would tend to stereotype defendant and would prejudice jury).

n19 Rittenmeyer, supra note 18, at 389-90; Note, supra note 18, at 1716.

n20 It has been suggested that the defense justifies the killing solely on the basis of the victim's evil character. See Acker & Toch, supra note 18, at 146-51 (suggesting that evidence of battered woman syndrome may lead juries to believe that killing was just). Others see the defense as a "juxtaposition of insanity and self-defense." See Vaughn & Moore, The Battered Spouse Defense in Kentucky, 10 N. KY. L. REV. 399, 419 (1983).

Most commentators, however, emphatically deny that the defense is premised on the theory that the defendant should be acquitted either because of the victim's abusive behavior or because of the woman's abnormal behavior. See, e.g., E. BOCHNAK, WOMEN'S SELF-DEFENSE CASES: THEORY AND PRACTICE xvii (1981) (arguing that defense should not be construed as vesting unique right to self-defense in battered women); Crocker, The Meaning of Equality for Battered Women Who Kill Men in Self-Defense, 8 HARV. WOMEN'S L.J. 121, 144 (1985) (stating that battered woman syndrome is properly treated as evidence of reasonableness of woman's actions); Comment, Self-Defense: Battered Woman Syndrome on Trial, 20 CAL. W.L. REV. 485, 495 (1984) (contending that battered woman syndrome is not separate defense, but instead is probative of defendant's perception of danger); see also State v. Leidholm, 334 N.W.2d 811, 820 (N.D. 1983) (concluding that evidence of battered woman syndrome goes to reasonableness of defendant's perception of imminent bodily danger); State v. Allery, 101 Wash. 2d 591, 597, 682 P.2d 312, 316 (1984) (en banc) (admitting expert testimony on battered woman syndrome because syndrome is central to claim that defendant's fear was reasonable). They emphasize that the purpose of the defense is just the opposite. The jury must be persuaded that the woman's perception that her life is in danger is reasonable. They argue that any kind of impaired mental state defense is absolutely inconsistent with this approach.

One of the primary hurdles to winning a woman's self-defense case is that stereotypical female traits are often considered to be the antithesis of reasonable. The trier of fact may be more willing to excuse the woman's conduct on grounds of insanity or diminished intellectual capacity than self-defense. The result, however, is less desirable than an acquittal on the ground of self-defense because the former may lead to involuntary civil commitment of the defendant while the latter only mitigates the culpability to a lesser crime. Schneider, supra note 9, at 638.

There is an inherent inconsistency in arguing that a person whose perceptions are altered by a psychologically identifiable syndrome is nonetheless reasonable with respect to conduct related to the syndrome. This Article proposes a solution to the dilemma that can lead to complete acquittal for defendants whose perceptions are altered by an abusive relationship, without demeaning all women as unreasonable and, consequently, inferior to men.

n21 See, e.g., Cohen, Old Age as a Criminal Defense, 21 CRIM. L. BULL. 5, 6-7 (1985) (analyzing criminal liability of elderly offenders); Ford, In Defense of the Defenders: The Vietnam Vet Syndrome, 19 CRIM. L. BULL. 434, 434-36 (1983) (exploring post-traumatic stress syndrome caused by military service in Vietnam); see also Donovan & Wildman, Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation, 14 LOY. L.A.L. REV. 435, 436-37, 462 (1981) (arguing that reasonable man standard should be replaced by one that reflects defendant's social reality).

n22 See infra notes 148-55 and accompanying text (discussing feminists' efforts to modify self-defense theory to meet needs of battered women).

n23 See Donovan & Wildman, supra note 21, at 445 (advocating adoption of subjective standard of self-defense that reflects defendant's social reality). See also infra notes 151-63 and accompanying text (describing changes in "reasonable man" standard when applied to battered women).

n24 See G. FLETCHER, RETHINKING CRIMINAL LAW §§ 10.1-10.5 (1978) (analyzing criminal defenses from systematic perspective) [hereinafter G. FLETCHER, RETHINKING]; Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199, 202-03, 241-43 (1982) (organizing criminal law defenses).

n25 See G. FLETCHER, RETHINKING, supra note 24, at 759-875 (analyzing criminal conduct and accountability from conventional perspective of justification and excuse); Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY 421, 444-50 (1982) (maintaining that sensitivity to justification/excuse distinction will render provocation rules more consistent); Robinson, supra note 24, at 291 (proposing conceptual framework that distinguishes defenses by their effect on liability and punishment); Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 COLUM. L. REV. 914, 960-61 (1975) (emphasizing distinctions between excuse and justification). But see Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897, 1898, 1915-19 (1984) (arguing that differences between excuse and justification are relevant to legal theory, but have no practical application).

Legal scholars do not agree why it is important to distinguish between justification and excuse. Paul Robinson cites concerns over liability of an actor who resists justified or excused conduct and third party liability for assisting an actor as reasons for supporting the distinction between justification and excuse. Robinson, supra note 24, at 273-85. Glanville Williams believes that the distinction is relevant only for questions of third party liability. Williams, The Theory of Excuses 1982 CRIM. L. REV. 732, 732-33. George Fletcher believes that the justification/excuse distinction must be made in order to permit consideration of the defendant's blameworthiness on an individualized or subjective basis. Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269, 1269-72 (1974) [hereinafter Fletcher, Individualization]. Peter Alldridge concludes that the distinction is useful in the appraisal of substantive rules of law, including treatment of cumulatively provoked killings. Alldridge, The Coherence of Defences, 1983 CRIM. L. REV. 665, 665-66.

This author disagrees with Williams' assertion that the distinction is relevant for practical purposes only to the liability of third persons. See Williams, supra, at 732-33. To the contrary, categorization of a defense as a justification or an excuse has significant effects on doctrinal development. See Dressler, supra, at 444-50 (arguing that distinction between justification and excuse lends consistency to criminal defenses). The distinction must be made in order to consider the culpability of battered women and others who kill on an individualized basis. Fletcher, Individualization, supra, at 47.

n26 These two trends have not been isolated completely from one another. The feminist lawyers who conceived the notion of women's self-defense incorporated Fletcher's theory of individualization of excusing conditions. See Schneider, supra note 9, at 639-40 (demonstrating that Fletcher's theory is necessary to provide equal treatment for battered women claiming self-defense). Fletcher's theory was first articulated in Fletcher, Individualization, supra note 25. See infra note 163 and accompanying text (discussing feminists' application of Fletcher's theory to battered women's cases).

n27 See Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. REV. 266, 272 (1975) (arguing that criminal codes cannot accurately prescribe correct conduct in all situations but only can provide approximations of society's intuitive judgments).

n28 See State v. Bradbury, 136 Me. 347, 9 A.2d 657 (1939) (ruling that disposal of corpse contrary to public decency is common law crime); Shaw v. Director of Public Prosecutions, 2 W.L.R. 897, 899, 2 All E.R. 446 (1961) (holding that conspiracy to corrupt public morals is punishable as common law offense).

n29 See Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (explaining that rule of law entitles citizens to know what state commands and forbids).

n30 See Robinson, supra note 27, at 272 (arguing that principle of justification is consistent with statutory criminal law because both limit blameworthiness to undesirable acts or harmful consequences).

n31 Dressler, supra note 25, at 438-46.

n32 Fletcher, The Right Deed for the Wrong Reasons: A Reply to Mr. Robinson, 23 UCLA L. REV. 293, 310-11 (1975) (illustrating difference between correct conduct and conduct justified by sufficient reason).

n33 Note, supra note 25, at 916.

n34 See Alldridge, supra note 25, at 665 (stating that justification is based on act); Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 954 (1985) (explaining that justification concerns legal permissibility of act that nominally violates law); Robinson, supra note 27, at 272-73 (arguing that an otherwise criminal act is justified whenever there is no societal harm); Williams, supra note 25, at 735 (defining justification as defense that affirms social desirability of act).

Fletcher argues that inclusion of merely permissible conduct (as distinguished from desirable conduct) in the category of justified conduct is inconsistent with the concept of the criminal law as a self-regulating set of conduct rules. Fletcher, supra, at 977-78. He notes that self-defense is best defined as permissible rather than rightful conduct. Id. The implication is that self-defense should be classified as an excuse.

n35 Note, Partially Determined Imperfect Self-Defense: The Battered Wife Kills and Tells Why, 34 STAN. L. REV. 615, 631 (1982). Robinson believes that right or legally permissible conduct that normally violates the criminal law is justified regardless of the actor's subjective intent. 2 P. ROBINSON, CRIMINAL LAW DEFENSES 122 (1984). Thus, so long as the objectively identifiable circumstances make conduct justifiable, the actor should be acquitted even if the actor was unaware of the justifying circumstances and committed the act for a "criminal" reason. Id. See also Robinson, supra note 27, at 284-92 (stating that bad motive and lack of knowledge should not preclude defense of justification). Fletcher disagrees. Although he believes that justification should be judged on an objective rather than subjective standard, Fletcher would not find an act justified unless the actor honestly and reasonably believed the necessary circumstances existed. Fletcher, supra note 32, at 295; see also G. FLETCHER, RETHINKING, supra note 25, at 768 (maintaining that self-defense theory demands both objective standard of wrongful aggression and subjective standard of justificatory intent); Greenawalt, supra note 25, at 1916 (arguing that subjective analysis of actor's intent is crucial for justification both in ordinary usage and legal theory).

This debate need not be resolved for purposes of this Article. The general difficulty in battered women's cases is lack of proper circumstances rather than improper motive. Nonetheless, adoption of Robinson's view would increase the likelihood that women who acted solely in retaliation for prior abuse may be acquitted. See P. ROBINSON, supra, 122 (stating that subjective motive is irrelevant in self-defense).

n36 See Fletcher, supra note 34, at 954 (arguing that claims of justification involve legal permissibility of acts nominally violating law); Greenawalt, supra note 25, at 1903 (stating that central definitional characteristic of justification is that conduct is warranted, not wrongful); Robinson, supra note 24, at 245 (noting that justifications send mixed message to community by acquitting defendant despite harm that was inflicted).

n37 Fletcher, supra note 34, at 954. The criminal law's encouragement of justified conduct extends to third parties, justifying intervention to prevent the greater harm. Greenawalt, supra note 25, at 1900.

n38 P. ROBINSON, supra note 35, 122; Robinson, supra note 24, at 202-03.

n39 Robinson, supra note 24, at 214, 243 (including defenses traditionally categorized as necessity and duress).

n40 Id. at 214-15, 242 (including defenses traditionally categorized as defense of others, self-defense, defense of property, and defense of premises).

n41 Id. at 215-16, 243 (including parental authority, benevolent custodial authority, and authority to prevent suicide). The authorized use of aggressive force also arises in the context of public authority. Id. (including law enforcement, medical, military, and judicial authority). The authorized use of aggressive force justification differs from other justification defenses because it is limited to particular persons in special positions that protect and further legally recognized interests against non-aggressors who threaten those interests. Id. at 215-16.

n42 Id. at 214.

n43 Id. This view is problematic because the victim also has a right of bodily integrity. Only if one can assume that the aggressor has forfeited this right by his act of aggression does the balancing rationale justify the defensive act. See Fletcher, supra note 32, at 305 (arguing that moral forfeiture rationale for self-defense, premised on view that aggressor has lesser interest in freedom from physical aggression than other persons, is problematic); see also infra notes 202-06 and accompanying text (discussing moral forfeiture theory).

n44 Id. at 216.

n45 Id. at 217.

n46 Robinson does not attempt to decide how immediate the threatened harm must be. Id. at 217 n.70. It seems, however, that extension of the requirement of temporal necessity beyond the Model Penal Code time frame of "the present occasion" would make Robinson's lesser evils rationale dubious. See MODEL PENAL CODE 3.04(1) (1985) (use of force in self-defense is justified when used to protect self from present threat). The shorter, common law standard of "imminency" may be required. See infra note 107 and accompanying text (discussing traditional requirement of imminency in self-defense theory).

n47 Robinson, supra note 24, at 217-18.

n48 Id. at 218.

n49 See Note, supra note 25, at 921 (arguing that confusion of policies underlying justification and excuse results in stringent, narrow standards of justified conduct).

n50 Robinson, supra note 24, at 239 n.155.

n51 Id. at 239-40.

n52 See infra notes 171-84 and accompanying text (analyzing inconsistencies arising from characterization of battered woman's defense as justification defense).

n53 See supra notes 31-33 and accompanying text (discussing doctrine of justification).

n54 Dressler, supra note 25, at 437; Robinson, supra note 24, at 221. But see Greenawalt, supra note 25, at 1915-18 (arguing that objective/subjective distinction between justification and excuse is erroneous). Although Greenawalt appears to misperceive the basis on which the objective/subjective distinction is normally made, he correctly points out that justifications have a subjective component and that many excuses have an objective component. Id. at 1916. To be justified, an actor must subjectively believe that the justificatory grounds exist. Id. To be excused, the actor's failure to resist internal or external compulsion must be either reasonable or understandable. Id. See supra note 35 and accompanying text (discussing disagreement concerning relevance of actor's subjective intent to justification defense).

n55 See Greenawalt, supra note 25, at 1900 (explaining that need to prevent harmful acts prohibits others from emulating excused actors' conduct). See also Fletcher, supra note 34, at 958, 960-62. Fletcher criticizes Anglo-American law because it does not require an ordered inquiry into whether an act is justified or excused. Id. He argues that both logic and retributive theories of punishment create a need to determine whether or not the conduct in question was justified before asking whether the actor is excused for her wrongful conduct because she was not blameworthy. Id. at 960-62. Fletcher suggests that Anglo-American law is able to ignore this inquiry due to the law's traditional adherence to utilitarian theories of punishment. Id. at 963-64. Nonetheless, it is widely recognized that punishment for utilitarian goals alone is undesirable because moral blameworthiness is a prerequisite to imposition of criminal sanctions. See H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 58-62 (1968) (noting that both retribution and utilitarianism presuppose moral blameworthiness). Thus, ordering the inquiry in the manner Fletcher advocates is desirable regardless of one's alignment as a utilitarian or a retributionist.

n56 See supra notes 34-37 and accompanying text (discussing social desirability of justified conduct).

n57 Greenawalt, supra note 25, at 1900. Professor Greenawalt summarizes the "typical features" of excuse as follows: "If an action is excused, the actor is relieved of blame but others may not properly perform similar actions; interference with such actions is appropriate; and assistance of such actions is wrongful." Id.

n58 Dressler, supra note 25, at 437; Donovan & Wildman, supra note 21, at 453; G. FLETCHER, RETHINKING supra note 24, at 759, 811; Robinson, supra note 24, at 229, 274-75.

n59 See H. PACKER, supra note 55, at 58-62 (discussing moral blameworthiness as prerequisite to criminal liability); Robinson, supra note 24, at 221 n.81 (arguing that imposition of criminal sanction presupposes exercise of free will).

n60 Fletcher, supra note 34, at 971.

n61 Fletcher, Individualization, supra note 25, at 1271.

n62 Id. at 1276. In contrast, the relevant policy question in a case of justification is whether other people should commit the same act in the same situation. See supra notes 34-37 and accompanying text (discussing criminal law's encouragement of justified acts).

n63 But see Note, supra note 25, at 916 (suggesting that excuse posits lack of culpability based on individual's incapacity to commit offense). This erroneous conception that an actor who is excused from a crime lacks criminal capacity, i.e., is somehow mentally inferior, may account for some feminists' rejection of excuse as a defense for battered women. See supra note 20 and infra notes 173-74 and accompanying text (discussing feminists' preference for justification theory). It must be emphasized that the theory of excuses discussed here can and should lead to complete acquittal rather than mitigation or other special consequences such as involuntary civil commitment.

n64 See Donovan & Wildman, supra note 21, at 466 (arguing that law's failure to recognize relevancy of particular circumstances works injustice for accused individual and perpetuates inequities that caused individual to act).

n65 This confusion is partially due to the law's preference for justifications. Modern codifications based on the Model Penal Code, for example, categorize most defenses as justifications. Note, supra note 25, at 914-15. See MODEL PENAL CODE §§ 3.01-3.11 (Proposed Official Draft 1962) (listing justification defenses). Conversely, excuse defenses are limited to duress and insanity. See id. 2.09 (duress); id. 4.01 (insanity).

n66 Robinson, supra note 24, at 242. These defenses are usually treated as failure of proof defenses, precluding liability because there is no actus reus. See W. LAFAVE & A. SCOTT, CRIMINAL LAW 177-81 (1972) (analyzing respective liabilities for voluntary and involuntary acts).

n67 Robinson, supra note 24, at 242 (including insanity, intoxication, somnambulism, and automatism).

n68 Id. at 224, 243 (including mistake as to justification).

n69 Id. at 243 (including duress).

n70 Fletcher, Individualization, supra note 25, at 1269, 1271. The mistake of law category includes mistakes as to justification. Id. Glanville Williams believes that both Robinson and Fletcher err by failing to include absence of mens rea or negligence in their lists of excuses. Williams, supra note 25, at 733-35 n.9. Williams defines two categories of excuses: (1) defenses that constitute a denial of the proscribed state of mind or negligence, and (2) defenses that hold the defendant unaccountable because the defendant was not a free and responsible agent. Id. at 735.

n71 Fletcher, supra note 34, at 972-73; Robinson, supra note 24, at 239-40. Most American jurisdictions erroneously justify a reasonable, but mistaken, belief in the existence of circumstances creating the right to use self-defense. See infra notes 78 & 199 and accompanying text.

n72 Robinson, supra note 24, at 221.

n73 Id. at 221, 222 n.82.

n74 Id. at 221.

n75 Id. at 224-25.

n76 G. FLETCHER, RETHINKING, supra note 24, at 802.

n77 Robinson, supra note 24, at 226-27. An actor who performs a wrongful act expecting to be excused will be disappointed. The expectation demonstrates an unacceptable element of choice and planning that is likely to defeat the claim of excuse. See Fletcher, supra note 34, at 970-71.

n78 See MODEL PENAL CODE 3.04 (1985) (classifying self-defense as a justification); see also Note, supra note 25, at 914-15 n.2 (listing states that as of 1975 had adopted criminal codes based upon the Model Penal Code). North Dakota, however, has rejected the Model Penal Code approach. See N.D. CENT. CODE §§ 12.1-05-03, 12.1-05-08 (1976) (defining self-defense as justification when use of force is necessary and proportionate and as excuse when actor reasonably, but mistakenly, believed force was necessary and proportionate). See also State v. Leidholm, 334 N.W.2d 811, 814-16 (N.D. 1983) (applying statute); Note, Criminal Law -- Self-Defense -- Jury Instructions Given on Subjective Standard of Reasonableness in Self-Defense Do not Require a Specific Instruction on Battered Woman Syndrome, 60 N.D.L. REV. 141, 145-46 (1984) (analyzing statute). The North Dakota scheme incorporates Fletcher's and Robinson's criticism of the Model Penal Code's treatment of reasonable but mistaken beliefs in the existence of justificatory circumstances. See supra note 71 and accompanying text (discussing Robinson's and Fletcher's consideration of reasonable but mistaken beliefs).

n79 Donovan & Wildman, supra note 21, at 442.

n80 Id. at 441.

n81 See Brown, Self-Defence in Homicide From Strict Liability to Complete Exculpation, 1958 CRIM. L. REV. 583, 583-84 (suggesting that self-help is less available as government's power expands).

n82 On the development of the concept of mens rea in the early common law, see generally, Sayre, Mens Rea, 45 HARV. L. REV. 974, 976-85 (1932).

n83 2 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 478-79 (2d ed. 1898); Donovan & Wildman, supra note 21, at 441. These early justifications would for the most part fall under Robinson's third category of justifications -- authorized use of aggressive force by public authority. See supra note 41 (discussing Robinson's treatment of use of force by public authority).

n84 See Alldridge, supra note 25, at 667 (discussing rule permitting taking of innocent life to maximize societal survival rate).

n85 Id.

n86 Donovan & Wildman, supra note 21, at 441; 2 F. POLLOCK & F. MAITLAND, supra note 83, at 478-79.

n87 See supra notes 27-37 and accompanying text (discussing justification defense theory).

n88 See supra notes 53-64 and accompanying text (analyzing defense of excuse).

n89 Donovan & Wildman, supra note 21, at 442.

n90 See G. FLETCHER, RETHINKING, supra note 24, at 343-44 (noting that early self-defense defendants were subject to forfeiture of instruments of crime).

n91 See 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 182 (1769) (stating that English law considered excusable homicide deserving of punishment); Robinson, supra note 27, at 275 (noting that defendants claiming self-defense were required to seek pardon to avoid punishment).

n92 Donovan & Wildman, supra note 21, at 443.


n94 Note, supra note 25, at 920.

n95 See supra note 78 (discussing influence on state statutes of Model Penal Code's classification of self-defense as justification).

n96 See Note, supra note 35, at 627 (noting society's dual interests in preventing vigilante justice while permitting some self-defense).

n97 Such conduct will be defined as murder, manslaughter, attempted murder, or some form of assault and battery depending upon the particular accused's state of mind and whether he succeeded in inflicting the intended harm. W. LaFAVE & A. SCOTT, supra note 66, at 196.

n98 A complete review or synthesis of the law of self-defense in each American jurisdiction is beyond the scope of this Article. For the most part, the author has relied upon LaFave and Scott's well-regarded textbook and on the Model Penal Code as representing the law of the majority of American jurisdictions. See W. LaFAVE & A. SCOTT, supra note 66, 5.7; MODEL PENAL CODE 3.04 (1985) (discussing general law of self-defense).

n99 W. LaFAVE & A. SCOTT, supra note 66, at 391.

n100 See supra notes 44-48 and accompanying text (discussing Robinson's necessity and proportionality requirements).

n101 See W. LaFAVE & A. SCOTT, supra note 66, at 391 (discussing self-defense as justification defense); MODEL PENAL CODE 3.04 (1985) (defining self-defense as justifiable use of force).

n102 W. LaFAVE & A. SCOTT, supra note 66, at 392. Unlawful force can be either a crime or a tort. Id. Generally, the actor may not be the initial aggressor. Id. at 394-95. There are two situations, however, when the actor may initiate the use of force. Id. at 395. First, if the actor's use of nondeadly force is met with a deadly response, the actor may defend himself justifiably. Id. Second, if the actor's good-faith attempts to withdraw from the encounter are thwarted by his adversary, the actor's right to self-defense is restored. Id. See also Note, supra note 35, at 625 n.458 (discussing some potentially troublesome broader definitions of unlawful force).

Unlawful aggression against the actor is Robinson's "triggering condition." See supra note 44 and accompanying text (discussing appropriate response when triggering condition occurs).

n103 W. LaFAVE & A. SCOTT, supra note 66, at 393-94. This corresponds to Robinson's proportionality requirement. See supra notes 44-47 and accompanying text (discussing Robinson's proportionality requirement).

n104 W. LaFAVE & A. SCOTT, supra note 66, at 392. Deadly force is defined as force used with the intent to inflict death or serious bodily harm or force used with knowledge of its capability to inflict death or serious bodily harm. Id.

n105 Id. at 393. A few jurisdictions require equal force as opposed to proportionate force. Id. This view would preclude use of a weapon against an unarmed assailant regardless of the correctness of the defendant's belief that the unarmed assailant could inflict death or serious bodily harm. Id. The majority rule, however, allows reasonable proportionate force even when it is "unequal." Id. See also id. at 392 (noting that mere threats of death or serious bodily harm do not constitute use of deadly force). The Model Penal Code allows the use of deadly force against "sexual intercourse compelled by force or threat" regardless of the degree of force. MODEL PENAL CODE 3.04(2)(b) (1985).

n106 W. LaFAVE & A. SCOTT, supra note 66, at 393. Under this view, a reasonable, but mistaken, belief in necessity does not defeat the defense, but one who makes an unreasonable mistake will not have a defense. The Model Penal Code is more forgiving. It requires only that the actor have a good faith belief that the force is necessary. The belief need not be reasonable. See MODEL PENAL CODE 3.04(2) (1985) (providing that "a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used"). See generally supra notes 65-77 and accompanying text (discussing excuse defense and reasonable belief requirement).

Self-defense need not be the actor's sole motive. A person acting in proper self-defense does not lose the defense by having an additional, less admirable motive. W. LaFAVE & A. SCOTT, supra note 66, at 394.

The question of necessity should not be confused with the issue of retreat. A significant minority of American jurisdictions require the defender to retreat before using deadly force when he knows he can avoid harm and achieve complete safety by running away from his adversary. Id. at 395-96. Retreat from one's home or place of business, however, may not be required. See, e.g., People v. McGrandy, 9 Mich. App. 187, 189, 156 N.W.2d 48, 49 (1967) (holding that battered wife was not required to retreat from own home to claim valid self-defense); Commonwealth v. Johnston, 438 Pa. 485, 489, 263 A.2d 376, 379 (1970) (ruling that defender may stand ground and meet deadly force with deadly force when threatened in own home by nonmember of family). But cf. Commonwealth v. Schaeffer, 367 Mass. 508, 511, 326 N.E.2d 880, 883 (1975) (holding that, although defender does not have unlimited right to use deadly force without attempting to retreat from own home, location of assault is valid consideration in self-defense). Others require retreat from one's home only when the adversary is a co-occupant. See, e.g., State v. Pontery, 19 N.J. 457, 475, 117 A.2d 473, 482 (1955) (holding that common law retreat rule is inapplicable when adversary is co-occupant); Commonwealth v. Walker, 447 Pa. 146, 150, 288 A.2d 741, 743 (1972) (ruling that defender must retreat if attacker is co-resident). Cf. Commonwealth v. Eberle, 474 Pa. 548, 557, 379 A.2d 90, 94 (1977) (requiring no duty to retreat when attacker was frequent guest, but not coresident). Because most battered woman's defense cases occur in the home, the retreat doctrine is rarely relevant. Even when it is, the requirement that the defendant must know she can retreat in complete safety limits the doctrine's influence on case outcome. When retreat is not required, defendant is permitted to stand her ground and respond to an imminent attack with deadly force if running away is the only alternative. See generally Note, Limits on the Use of Defensive Force to Prevent Intramarital Assaults, 10 RUT.-CAM. L. REV. 643, 653-57 (1979) (discussing application of retreat rule to domestic abuse cases).

n107 W. LaFAVE & A. SCOTT, supra note 66, at 394. At common law, the imminency requirement is usually interpreted to require a threat of immediate harm. The Model Penal Code expands the time frame, allowing use of force to protect against an unlawful attack "on the present occasion." MODEL PENALL CODE 3.04(1). LaFave & Scott explain that the imminency requirement rules out the possibility that the defendant may be able to thwart the attack using nonviolent means. Id.

The imminency requirement is problematic in battered woman's defense cases when past behavior indicates that the harm will occur in the future and effective avoidance of the harm may be impossible. See Note, supra note 106, at 651-53 (recommending adoption of a standard of self-defense that does not require imminency).

Together, the imminency and necessity requirements constitute Robinson's necessity condition. See supra notes 44-47 and accompanying text (discussing Robinson's theory of necessity).

n108 See supra notes 31-37 and accompanying text (discussing theoretical basis of justification defenses).

n109 See Marcus, Conjugal Violence: The Law of Force and the Force of Law, 69 CALIF. L. REV. 1657, 1704 (1981) (stating that theory of self-defense is designed to ensure that homicide was unavoidable).

n110 See supra notes 38-43 and accompanying text (discussing balance of societal interests in justification).

n111 See supra note 43 and accompanying text (arguing that combination of right of bodily integrity and protection against physical injury outweigh society's interest in protecting agressor). Rationales that have been offered to support this devaluation are discussed infra notes 202-06 and accompanying text.

n112 Cf. Fletcher, supra note 34, at 972-73 (arguing that mere belief, no matter how reasonable, cannot justify homicide).

n113 Fletcher and Robinson both agree that such cases are not justified. Instead, they should be treated as excuses unless the actor is culpable for making the mistake, in which case liability should be imposed. See supra note 71 and accompanying text (discussing Robinson's and Fletcher's views on mistake and excuse theory). Compare MODEL PENAL CODE 3.04(2) (1985) (justifying use of force if actor honestly believes in unlawfulness of force).

n114 See supra notes 44-47 and notes 103-07 and accompanying text (discussing Robinson's theory of justification and elements of self-defense).

n115 See W. LAFAVE & A. SCOTT, supra note 66, at 394 (discussing criminal law's discouragement of resort to self-help).

n116 Note, supra note 25, at 931.

n117 See supra notes 102-07 and accompanying text.

n118 Brown v. United States, 256 U.S. 335, 343 (1921).

n119 Donovan & Wildman, supra note 21, at 453. See supra note 71 and accompanying text.

n120 Would an average person of ordinary sensibilities have believed the force was proportionate, necessary, and immediate under the circumstances? See State v. Kelly, 97 N.J. 178, 198, 478 A.2d 364, 374 (1984) (applying objective standard of reasonableness in battered woman's defense case).

n121 Would an average person in defendant's circumstances have believed the force was proportionate, necessary, and immediate? The relevant circumstances may or may not include attributes peculiar to defendant. See State v. Leidholm, 334 N.W.2d 811, 817 (N.D. 1983) (applying subjective standard of reasonableness in battered woman's defense case).

The breadth of "circumstances" the fact-finder is permitted to consider will affect the outcome under either an objective or a subjective test. Cf. Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 596 (1981) (noting differences in law when defendants are acknowledged as unique persons). Additionally, even when relevant circumstances are interpreted broadly enough to include individual characteristics of the defendant, the significance of those characteristics may not be recognized. Crocker, supra note 20, at 125 n.11.

Fletcher's theory of individualization, as applied by feminists to self-defense, is nothing more than a subjective standard of reasonableness. See infra note 163 and accompanying text (discussing feminists' application of Fletcher's individualization theory).

n122 Eber, supra note 1, at 919 n.151; Note, supra note 78, at 146 n.37. See Donovan & Wildman, supra note 21, at 445 (noting that trend is toward increasingly subjective standards).

n123 But see Note, supra note 35, at 627-28 n.55 (describing reported incidents of "disquieting indications of vigilantism" in battered women's cases).

n124 See Marcus, supra note 109, at 1732-33 (arguing that modification of immediacy standards for battered women's cases would undermine deterrent function of homicide law and raise significant equal protection problems); Note, supra note 35, at 627-30 (arguing that desire to acquit battered women who kill despite their failure to meet requirements of self-defense undermines rule of law).

n125 See E. BOCHNAK, supra note 20, at xvii (stating that battered woman's defense often confuses jurors); see also Comment, supra note 20, at 495 (arguing that battered woman's defense is not clearly separate defense).

n126 E. BOCHNAK, supra note 20, at xvii; Crocker, supra note 20, at 122; Schneider, supra note 9, at 623. Those who insist on use of the term "women's self-defense" also insist that the battered woman's defense is no different than any other case of self-defense. See supra notes 17-20 and accompanying text (discussing debate over propriety of battered woman's defense). Crocker, however, argues that the question is simply one of woman's self-defense, but concedes that battered women respond to threats of violence from their batterer differently than other women respond because battered women become attuned to violence. See Crocker, supra note 20, at 126-27.

The equal protection clause of the fourteenth amendment may require inclusion of the battered woman's defense within the more generally applicable principle of self-defense. Compare Rittenmeyer, supra note 18, at 389 (asserting that battered woman's defense violates equal protection rights of male homicide defendants) with Buda & Butler, The Battered Wife Syndrome: A Backdoor Assault on Domestic Violence, 23 J. FAM. L. 359, 378-81 (1985) (concluding that battered woman's defense should be included in general self-defense law in order to fend off equal protection challenges).

This author's choice of the term battered woman's defense is not intended as a rejection of the view that the defense is related to other cases of self-defense.

n127 This Article uses the term battered woman's defense primarily because the discussion is limited to battered women who kill their abusers. The term woman's self-defense, on the other hand, incorporates all women charged with homicide who claim self-defense regardless of the identity of their victims. As such, the label woman's self-defense seems no less misleading than the label battered woman's defense. One commentator has argued that the term battered woman's defense leads to the mistaken notion that the defendant's act was justified solely because she was a victim of domestic violence. Rittenmeyer, supra note 18, at 389. See supra note 18 and accompanying text (noting concern that criminal justice system may not deter battered women from engaging in unnecessary force or retaliation). Similarly, the term woman's self-defense leads to the intolerable conclusion that the rules of self-defense law vary depending on one's gender. This is inconsistent with the notion of a nonsexist society. Moreover, if indeed the traditional notion of self-defense is inadequate for our pluralistic society, it is not only women or battered women who will suffer. See Donovan & Wildman, supra note 21, at 436-39 (arguing that other minority groups with distinct socioeconomic backgrounds also suffer under current legal system).

n128 To some extent, these early cases involved an attack on the once universal use of the gender specific "reasonable man" standard even when the person whose conduct was being judged was a woman. Today, standards of reasonableness usually are stated in either sex-neutral terms (i.e. reasonable person) or sex-specific terms based on the gender of the defendant. See Donovan & Wildman, supra note 21, at 439 (arguing that use of any abstract standard of reasonableness -- whether sex neutral or sex specific -- is unfair).

n129 See Schneider, supra note 9, at 635 (analyzing impact of social mores on availability of self-defense); Note, supra note 35, at 619 (noting that traditional self-defense focuses on sudden single episode of attack and defense).

n130 E.g., State v. Wanrow, 88 Wash. 2d 221, 238-42, 559 P.2d 548, 558-59 (1977) (discussing physical handicaps women experience in efforts to repel male attackers).

n131 E.g., id. at 237-38, 559 P.2d at 557 (asserting that woman's prior knowledge of attacker's aggressive reputation is crucial to determining reasonable degree of force used to repel attack).

n132 See supra notes 103-07 and accompanying text (discussing traditional self-defense rules). The strictness with which any of these requirements are applied is dependent on the jurisdiction. To some extent the problems posed by like force requirements and rules limiting the scope of surrounding circumstances have been overblown. Most jurisdictions have not had such rules for many years. See supra note 105 (noting relaxation of traditional self-defense requirements).

n133 Walker, Thyfault & Browne, Beyond the Juror's Ken: Battered Women, 7 VT. L. REV. 1, 4 (1982).

n134 Id.

n135 Id. For discussion of the notion of equal force in the traditional law of self-defense, see supra notes 103-05 and accompanying text. The Model Penal Code specifically permits use of deadly force to defend against forcible rape. MODEL PENAL CODE 3.04 (1985).

n136 Walker, Thyfault & Browne, supra note 133, at 4. At her first trial, Garcia pled the insanity defense, but was convicted. Id. On appeal, a second trial was ordered due to a faulty jury instruction on proof beyond a reasonable doubt. People v. Garcia, 54 Cal. App. 3d. 61, 65-66, 54 Cal. Rptr. 275, 279-80 (1976).

n137 Walker, Thyfault & Browne, supra note 133, at 4.

n138 Id.

n139 Id.

n140 Id.

n141 Id.

n142 See generally E. BOCHNAK, supra note 20, App. G (listing early battered women's cases). Whether these verdicts reflected jury determinations that the homicides were in fact justifiable is unknown. There is always the possibility that the jury exercised its mercy function. Nonetheless, the fact remains that the verdicts reflected relative success in very difficult cases. On the problem of jury nullification in battered women's cases and the underlying tensions it creates, see Note, supra note 35, at 616 n.6, 627-30. See also E. BOCHNAK, supra note 20, at 2 n.3 (noting acquittals of battered women on other theories, such as temporary insanity and insufficient evidence, and reductions in charges with no imprisonment).

n143 State v. Wanrow, 88 Wash. 2d 221, 240-41, 559 P.2d 548, 559 (1977).

n144 Id. at 226, 559 P.2d at 550-51.

n145 Id.

n146 Id. at 240, 559 P.2d at 559.

n147 Id. The court also ruled that it was improper to preclude the jury from considering circumstances prior to the occasion of the killing, including Wanrow's knowledge of the deceased's reputation for violence. Id. at 237-39, 559 P.2d at 555. Appearing for Wanrow were Center for Constitutional Rights' William M. Kunstler, Elizabeth M. Schneider, and Nancy Sterns. Id. at 224, 559 P.2d at 550.

For discussion of Wanrow, see Eber, supra note 1, at 920-26; Schneider, supra note 9, at 641-42; Comment, Battered Wives Who Kill: Double Standard Out of Court, Single Standard In?, 2 LAW. & HUM. BEHAV. 133, 139-40 (1978); Note, Women's Self-Defense Under Washington Law -- State v. Wanrow, 54 WASH. L. REV. 221 passim (1978); Note, State v. Wanrow, 13 GONZ. L. REV. 278 passim (1977).

Although it was heralded as a major breakthrough, time has proven that Wanrow was not as strong an influence on the courts as feminists had hoped. See State v. Crigler, 23 Wash. App. 716, 598 P.2d 739 (1979) (holding that trial court is not required to give sex-specific jury instructions provided that jury is instructed to consider all circumstances known to defendant at time of assault). But see State v. Allery, 101 Wash. 2d 591, 597-99, 682 P.2d 312, 315-17 (reversing conviction because jury instruction on subjective standard of self-defense was inadequate to allow jury to consider self-defense issue in light of all defendant knew and had experienced with victim).

n148 See supra notes 12-16 and accompanying text (noting special problems arising from battered women's cases).

n149 See Schneider & Jordan, Representation of Women Who Defend Themselves in Response to Physical or Sexual Assault, 4 WOMEN'S RTS. L. REP. 149, 151-56 (1978) (discussing defense strategies in battered women's cases).

n150 Apparently until the late 1970s, most women charged with homicide after killing their abusers pleaded guilty or defended themselves on the theory of insanity. See id. at 149 (noting that most women who claimed insanity were convicted routinely); Schneider, supra note 9, at 638 (discussing cases where battered women were acquitted on grounds of insanity or diminished intellectual capacity); Comment, supra note 20, at 491 (analyzing use of insanity defense in battered women's cases); supra note 142 (discussing alternative grounds for defense of battered women). Schneider and Jordan cautioned that the insanity defense may still be the best defense option in appropriate cases, but recommended that the self-defense approach be explored first. Schneider & Jordan, supra note 149, at 151. Even when the decision to use an impaired mental state defense seems appropriate, Schneider and Jordan recommend that the defense should adhere to a woman's perspective and suggest that the woman was driven to the breaking point by the circumstances of her abuse. Id. at 156. See also Note, The Battered Wife Syndrome: A Potential Defense to a Homicide Charge, 6 PEPPERDINE L. REV. 213, 216 (1978) (recommending use of other impaired mental state defenses such as diminished capacity, heat of passion, and automatism). See generally Schneider & Jordan, supra note 149, at 159 (discussing impaired mental state defenses).

n151 Schneider & Jordan, supra note 149, at 150.

n152 Id.

n153 Id.

n154 Crocker, supra note 20, at 123. See State v. Wanrow, 88 Wash. 2d 221, 240-41, 559 P.2d 548, 559 (1977) (holding that traditional self-defense rules cannot be applied fairly to women because rules do not acknowledge women's limited defensive capabilities).

n155 Schneider, supra note 9, at 639-40; Crocker, supra note 20, at 131-32. Schneider recommends substitution of Fletcher's individualization theory for extant objective standards of self-defense. Schneider, supra note 9, at 639.

n156 Schneider & Jordan, supra note 149, at 150. Specifically, feminists attempted to dispel the beliefs that police provide adequate protection for battered women, that battered women voluntarily participate in and enjoy battering relationships, and that the beatings suffered by these women are justified by their behavior. Schneider, supra note 9, at 625. See generally L. WALKER, THE BATTERED WOMAN 18-30 (1979) (discussing myths about battered women). But see Acker & Toch, supra note 18, at 139 (arguing that Walker's "myths" may themselves be mythical).

n157 For a discussion of problems encountered by battered women in enlisting help from the police and the courts, see Lerman, supra note 9, at 57; Marcus, supra note 109, at 1657; Schneider, supra note 9, at 625-26; Waits, supra note 7, at 279-85; Note, supra note 18, at 1710-14.

n158 Schneider & Jordan, supra note 149, at 8.

n159 Id. at 157. Historically, an emotionally healthy woman is one who is dependent, passive, and submissive whereas a healthy man is aggressive, competitive, and dominant. Schneider, supra note 9, at 628. Women are discouraged from learning self-defense and engaging in violent behavior because it is considered unfeminine. Id. Consequently, women suffer extreme anxiety when placed in a situation where self-preservation requires physical violence. Id. at 632. See Hoffman-Bustamente, The Nature of Female Criminality, 8 ISSUES IN CRIMINOLOGY 117, 123 (1973) (noting that homicides committed by women often are related closely to traditional feminine sex role).

n160 Schneider & Jordan, supra note 149, at 158. Indeed, many women have claimed that they armed themselves only to threaten their attacker and were forced to use the weapon because of a sudden move by their attacker. See State v. Kelly, 33 Wash. App. 541, 542, 655 P.2d 1202, 1202 (1982) (defendant claimed that pistol accidentally discharged while pointed at intoxicated husband); see also Schneider, supra note 9, at 632 (noting women's reluctance to defend themselves without weapons). Generally, proportionate, rather than like, force is required. People v. Reeves, 47 Ill. App. 3d 406, 410, 362 N.E.2d 9, 13 (1977).

n161 Schneider & Jordan, supra note 149, at 158; Schneider, supra note 9, at 634-35.

Battered women usually believe that the incident that resulted in the homicide was more severe or life-threatening than prior incidents. Studies suggest that battered women have learned to be attentive to signs of escalating violence and to modify their behavior in response to these danger signals in order to pacify violent husbands. Subtle motions or threats that might not signify danger to an outsider or to the trier of fact acquire added meaning for a battered woman whose survival depends on an intimate knowledge of her assailant.
Id. at 634 (footnotes omitted). Schneider argued that a woman who cannot admit such evidence is denied a fair trial and equal protection of the laws. Id. at 637.

Broadening the time frame by admitting evidence of past abuse has the problematic side effect of increasing the number of apparent opportunities for the defendant to escape the entire violent situation. The fact-finder may become increasingly likely to attribute some fault to the defendant for creating the incident that resulted in the killing. See Note, supra note 35, at 621-22 (discussing application of imminent danger doctrine in battered women's cases). Expert evidence is essential to defuse this inevitable prosecutorial argument.

n162 Schneider & Jordan, supra note 149, at 158. This aspect of the original strategy seems to have fallen by the wayside in subsequent discussions of the battered woman's defense. It may be due to the fact that the rules of self-defense allow for mixed motives so long as the defendant actually believes deadly force is necessary. See W. LaFAVE & A. SCOTT, supra note 66, at 394-95 (discussing aggressor's right to self-defense).

n163 Crocker, supra note 20, at 131; Schneider, supra note 9, at 624. Crocker recognizes the inconsistency in considering gender-related attributes of the defendant under a purportedly sex-neutral standard. See Crocker, supra note 20, at 150-53 (noting tensions in legal approaches to battered women's self-defense claims).

n164 Schneider & Jordan, supra note 149, at 162. Schneider, however, warns that expert testimony should be tailored closely to the defendant's particular circumstances. Schneider, supra note 9, at 646. Generalized testimony may encourage sexual stereotyping by promulgating a "battered women's syndrome" defense. Id. Accordingly, Schneider argues that expert testimony should be used sparingly, particularly when the defendant can credibly and cogently argue her own case.

Recently, the battered woman's defense has come under increasing feminist criticism precisely because it may be replacing old stereotypes with new ones. See Crocker, supra note 20, at 121-22 (arguing that battered woman's defense has perpetuated stereotypes that defense was designed to eliminate).

n165 Walker postulates that domestic violence occurs in cycles, each with three phases. Walker, Thyfault & Browne, supra note 133, at 6. The first phase, known as the tension building phase, consists of small abusive episodes. Id. During this phase, the victim of the abuse may plan to escape or have tried to escape in the past and failed. Id. The second stage -- the major violence phase -- consists of an acute battering incident. Id. During this period of time the woman is more likely to concentrate on survival than on escape. Id. Her behavior at this time is characterized by "learned helplessness." Id. The woman will feel that her batterer is omnipotent and that no one can help her. Id. at 9. She will focus her emotional energy on developing coping responses rather than escape responses. Id. The acute battering incident is followed by the third and final phase of the cycle. Id. at 6. This period is characterized by calm. The abuser will be kind, loving, and contrite. Id. Due to learned helplessness and her desire to make the relationship work, the victim is likely to succumb to her tormentor's promises of reform until the cycle begins all over again. Id. As time goes on, the tension building periods become longer and more intense while the periods of contrition become shorter and less compelling. Id. at 9. Walker has also identified certain common characteristics of battering relationships and of each of the parties to such a relationship. See id. at 10-12 (noting that abusive husbands frequently were abused as children, abuse alcohol and drugs, have history of arrests and convictions, and generally do not act violently towards nonmembers of their immediate family); see also, Comment, supra note 20, at 486-88 (discussing Walker's cycle of violence theory). For a much more complete exposition of Walker's theory, see generally L. WALKER, supra note 156, at 23-64.

n166 See, e.g., Ibn-Tamas v. United States, 407 A.2d 626, 634 (D.C. 1979) (holding expert testimony relevant to enhance defendant's credibility and support her testimony that she feared imminent danger); Borders v. State, 433 So. 2d 1325, 1327 (Fla. Dist. Ct. App. 1983) (ruling expert evidence on battered woman syndrome admissible provided expert is qualified and expert's field is generally accepted); Hawthorne v. State, 408 So. 2d 801, 806 (Fla. Dist. Ct. App. 1982) (allowing expert evidence to show that due to battered woman syndrome, it was reasonable for defendant to remain in home and to believe her life was in imminent danger); Smith v. State, 247 Ga. 612, 619, 277 S.E.2d 678, 683 (1981) (admitting expert evidence regarding battered women in general); People v. Minnis, 118 Ill. App. 3d 345, 357, 455 N.E.2d 209, 217 (1983) (holding expert testimony relevant to explain reasons why defendant would dismember and hide body after killing in self-defense); State v. Anaya, 438 A.2d 892, 894 (Me. 1981) (finding expert testimony relevant to defendant's behavior and perception at time of killing because testimony gives jury reason to believe defendant's conduct was consistent with self-defense); State v. Kelly, 97 N.J. 178, 202, 478 A.2d 364, 375-77 (1984) (ruling expert testimony relevant to objective reasonableness and honesty of defendant's belief that deadly force was necessary); People v. Torres, 128 Misc. 2d 129, 133, 488 N.Y.S.2d 358, 362 (1985) (allowing expert to testify regarding power of battered women to distinguish between various degrees of violence and danger); State v. Allery, 101 Wash. 2d 591, 597, 682 P.2d 312, 316 (1984) (admitting expert testimony to explain why a battered woman remains in abusive relationship and why defendant perceived herself in imminent danger at time of shooting). But cf. Buhrle v. State, 627 P.2d 1374, 1377 (Wyo. 1981) (excluding testimony that defendant suffered from learned helplessness and perceived herself to be acting in self-defense because, inter-alia, defendant's behavior did not fit into pattern of battered woman syndrome).

Experts also have testified concerning the lack of supportive services and its effect on battered women. See People v. Emick, 103 A.D.2d 643, 658 n.3, 481 N.Y.S.2d 552, 561 n.3 (1984) (expert testified that lack of services prevents battered women from leaving abusive setting); People v. Torres, 128 Misc. 2d 129, 133, 488 N.Y.S.2d 358, 362 (1985) (expert testimony that battered woman syndrome arises from lack of anywhere else to go).

Similarly, experts have testified regarding the characteristic attributes of battering husbands. See State v. Seelke, 221 Kan. 672, 682, 561 P.2d 869, 876 (1977) (testimony concerning husband's alcohol abuse allowed); State v. Anaya, 438 A.2d 892, 893 (Me. 1981) (testimony admitted to determine psychological and environmental factors that contribute to spousal abuse). See generally Note, The Use of Expert Testimony in the Defense of Battered Women, 52 U. COLO. L. REV. 587, 595-99 (1981) (discussing importance of evidence regarding psychological background of abusive husbands).

n167 Arguably, use of expert testimony is the primary trial strategy for attorneys who seek to defend battered women. See Crocker, supra note 20, at 132 (discussing feminist trial strategies). Some critics of the defense apparently believe that the battered woman's defense is nothing more than expert testimony on the battered woman syndrome. See Acker & Toch, supra note 18, at 143 (questioning whether battered woman syndrome is appropriate subject for expert testimony). It is probably this misconception that primarily has led to confusion in the community and the courts regarding the exact nature of the battered woman's defense. For examples of the vast amount of legal scholarship devoted to the question of the admissibility of such expert testimony under the rules of evidence, see id.; Cross, The Expert as Educator: A Proposed Approach to the Use of Battered Woman Syndrome Expert Testimony, 35 VAND. L. REV. 741, 757-71 (1982); Comment, supra note 20, at 485; Comment, The Admissibility of Expert Testimony on the Battered Woman Syndrome in Support of a Claim of Self-Defense, 15 CONN. L. REV. 121, 130-41 (1982); Comment, The Admissibility of Expert Testimony on Battered Wife Syndrome: An Evidentiary Analysis, 77 NW. U.L. REV. 348, 355-74 (1982); Comment, State v. Thomas: The Final Blow to Battered Women?, 43 OHIO ST. L.J. 491, 500-32 (1982); Comment, Expert Testimony on the Battered Wife Syndrome: A Question of Admissibility in the Prosecution of the Battered Wife for the Killing of Her Husband, 27 ST. LOUIS U.L.J. 407, 412-30 (1983); Note, supra note 166, at 587; Note, Criminal Law -- Evidence -- Expert Testimony Relating to Subject Matter of Battered Women Admissible on Issue of Self-Defense, 11 SETON HALL 255, 261-79 (1980); Note, Admitting Expert Testimony on the Battered Woman Syndrome, 21 WASHBURN L.J. 689, 694-710 (1982).

n168 See Crocker, supra note 20, at 132-35 (discussing difficulties encountered in proving imminent danger in light of stereotypic assumptions about battered women); Schneider, supra note 9, at 634 (analyzing imminent danger rule in battered women's cases).

n169 Most women either cannot leave or are afraid to leave. For example, one or a combination of any of the following factors may be present. The woman may not have any financial resources, there may be no other place to go due to the reluctance of friends, family, and police to get involved, or the abuser may have threatened to kill the woman if she tries to leave. Sometimes, aborted escapes may have preceded the resort to self-help. See generally Crocker, supra note 20, at 133-34 (noting reasons why women are unable to leave abusive relationships); Eber, supra note 1, at 901-02 (arguing that emotional dependency prevents wives from leaving); Schneider, supra note 9, at 626-27, 629 (discussing social obstacles to women's escape); Comment, supra note 20, at 488-91 (analyzing difficulties encountered by women attempting to free themselves from battering relationships); Note, supra note 18, at 1708-14 (noting failure of criminal justice and social service systems to aid battered women).

n170 Crocker, supra note 20, at 135. The battered woman's defense requires application of a subjective standard of reasonableness. Some courts have allowed expert testimony on battered woman syndrome, but have rejected specific jury instructions concerning the syndrome, noting that the subjective standard of reasonableness adequately conveys the need to examine the defendant's particular situation. See State v. Leidholm, 334 N.W.2d 811, 817-18 (N.D. 1983); State v. Allery, 101 Wash. 2d 591, 595-98, 682 P.2d 312, 314-15 (1984). But see State v. Kelly, 97 N.J. 178, 207-08 & n.13, 478 A.2d 364, 379 n.13 (1984) (holding that expert testimony was admissible to prove objective reasonableness of defendant's fear of harm).

n171 See Robinson, supra note 27, at 292. Professor Robinson correctly observes that the use of subjective, actor-oriented factors in the determination of whether an otherwise criminal act is justified undermines the purposes of the criminal law by condoning conduct that results in harm to society. Id. But see Fletcher, supra note 32, at 295 (arguing that actor's intent is relevant to justification). Consequently, one who acts with a bad motive should not be acquitted of the crime despite the fact that unknown to the actor, justifying circumstances existed. See supra note 35 and accompanying text (discussing implications of actor's bad motive and existence of justifying circumstances).

n172 Professor Fletcher suggests abandonment of the reasonableness standard for excuses altogether and substitution of a simple assessment of the actor's character and culpability in each individual case. Fletcher, Individualization, supra note 25, at 1290-91. He argues that use of subjective standards of reasonableness requires making the same inquiry. To decide whether defendant's particular weakness should be included among the circumstances to be attributed to the reasonable person, one must actually decide whether the particular psychological factors that affected defendant's conduct are excusable. Id. In excuse cases, Fletcher concludes that the jury instructions at least must impose the defendant's particular pathological fears on the reasonable person standard. Id. at 1292. See also Donovan & Wildman, supra note 21, at 467 (suggesting replacement of the reasonable person test in self-defense and passion and provocation cases with a standard that asks whether defendant's conduct was understandable).

n173 Crocker, supra note 20, at 130.

n174 Crocker, supra note 20, at 131 (footnotes omitted). See also Schneider, supra note 9, at 638. Schneider criticizes the use of excuse theories of passion and provocation, and diminished capacity because the theories only result in mitigation. Id. Similarly, Schneider criticizes use of the insanity defense because it results in involuntary civil commitment. Id. The theory of excused self-defense advocated in this Article, however, is designed to lead to complete acquittal.

n175 See supra notes 13-16 and accompanying text (discussing battered women's cases that did not involve imminent threats).

n176 See supra notes 72-77 and accompanying text (discussing nature of disability required to excuse defendant's conduct). This author recognizes that battered woman syndrome is not a mental illness as such. Nonetheless, it undeniably is caused by external circumstances and impairs defendant's free will.

n177 See supra notes 53-58 and accompanying text (explaining theoretical differences between justification and excuse). This point is further illustrated by advocates of the defense who recommend application of Fletcher's theory of individualization of excusing conditions to self-defense claims. See Schneider, supra note 9, at 639-40 (stating application of individualization theory reduces impact of sex bias on women's claims of self-defense).

n178 Cf. Crocker, supra note 20, at 131 n.49 (asserting that defense is evidence of action's reasonableness). Similarly, it is essential to show that the disability alone does not excuse the defendant. See State v. Leidholm, 334 N.W.2d 811, 819-20 (N.D. 1983) (approving proposed jury instruction because instruction clearly stated that battered woman syndrome is not defense in itself); State v. Kelly, 33 Wash. App. 541, 543-44, 655 P.2d 1202, 1203 (1982) (stating that battered woman syndrome does not confer right to kill, but must be considered in determining reasonableness of defendant's conduct), rev'd on other grounds, 102 Wash. 2d 188, 685 P.2d 565 (1984).

n179 See supra note 20 and accompanying text (discussing concern that battered woman syndrome may be considered distinct defense). But see State v. Leidholm, 334 N.W.2d 811, 819-20 (affirming that evidence of decedent's abusive behavior goes only to reasonableness of defendant's conduct); State v. Kelly, 33 Wash. App. 541, 543-44, 655 P.2d 1202, 1203 (1982) (specifying that defendants will not be acquitted merely due to their status as battered women), rev'd on other grounds, 102 Wash. 2d 188, 685 P.2d 565 (1984).

n180 Consideration of the fact that the conduct might be excused prior to the killing partially defeats a claim of excuse. See Fletcher, supra note 25, at 1304 (emphasizing differences between excuse and justification).

Robinson recommends adoption of special verdicts, similar to not guilty by reason of excuse. Robinson, supra note 24, at 245-47. He believes that requiring the jury to state that it acquitted defendant because she was excused will eliminate the risk that the verdict may be misinterpreted as a decision that defendant's conduct was justified. Id. Thus, greater reliance on excuses would not interfere with the deterrent and condemnatory function of the prohibitory criminal law. Id. See also Greenawalt, supra note 25, at 1900-02 (discussing pros and cons of Robinson's suggestion for special verdicts).

n181 See supra note 174 and accompanying text (noting feminists' objections to use of excuse theory).

n182 Courts have acquitted battered women without special reliance on the battered woman's defense in cases where there was clear evidence that the victim threatened imminent use of deadly force. People v. Reeves, 47 Ill. App. 3d 406, 412, 362 N.E.2d 9, 14 (1977); Commonwealth v. Watson, 494 Pa. 467, 474, 431 A.2d 949, 952-53 (1981); Commonwealth v. Zenyuh, 307 Pa. Super. 253, 255, 453 A.2d 338, 339-40 (1982).

n183 Accord Fletcher, Individualization, supra note 25, at 972-73 (advocating view that actions based on reasonable mistake should be excused); Robinson, supra note 24, at 224-25, 239-40 (classifying all mistakes regarding justifying circumstances as excuses); see also supra note 71 and accompanying text (discussing Fletcher's and Robinson's theory on reasonable mistakes).

n184 At least one author agrees:

The greatest danger posed by the failure to consider the theory and policies underlying justification is that assumptions applicable to excuse will influence the formulation of standards for justification. The most important assumption in this regard is that the conduct for which the defense is claimed is to be discouraged at worst and pardoned at best. Such an assumption is necessarily burdensome to the defendant, for it is applied in practice either by narrowing the range of acts to be deemed justifiable or by setting up standards of conduct so stringent that a person will be discouraged from engaging in the conduct in the first place.
Note, supra note 25, at 921.

n185 See supra notes 78-96 and accompanying text (discussing evolution of self-defense theory).

n186 See Robinson, supra note 27, at 274-79 (demonstrating that inconsistencies result when justification and excuse theories are merged).

n187 Battered woman's defense cases are prime examples of this problem.

n188 Dressler, supra note 25, at 437; Fletcher, supra note 34, at 977. Elsewhere, Fletcher argues that the moral forfeiture theory of self-defense is problematic and concludes that self-defense is better characterized as a necessary evil rather than a desirable event. Fletcher, supra note 32, at 305-06. See infra notes 202-06 and accompanying text (discussing problems in using moral forfeiture theory to support classification of excuse and justification).

n189 See supra notes 38-41 and accompanying text (discussing lesser evil doctrine in justification theory).

n190 See supra note 43 and accompanying text (discussing combination of societal interests that outweigh need to protect abuser from harm).

n191 See Note, Justification and Excuse in the Judaic and Common Law: The Exculpation of a Defendant Charged with Homicide, 52 N.Y.U.L. REV. 599, 608 (1977) (discussing difficulties inherent in qualitative analysis). The problem is particularly acute when both victim and defendant are not blameworthy. See infra notes 211-12 and accompanying text (acknowledging that batterers also may be victims of their own social reality).

n192 See Dressler, supra note 25, at 458 (citing examples that demonstrate value that criminal law places on human life). But cf. Kadish, Respect for Life and Regard for Rights in the Criminal Law, 64 CALIF. L. REV. 871, 878-81 (1976) (arguing that sanctity of human life is not preeminent principle of Anglo-American law).

n193 See supra notes 82-85 and accompanying text (discussing instances when intentional killings are beneficial to society). Justifiable homicides were subdivided by the common law into "private defence" and "public defence." Harlow, Self-Defence: Public Right or Private Privilege, 1974 CRIM. L. REV. 528, 529-30 (1974). Private defence involved protection of one's person or property against violent felonies. Id. Force inflicted to accomplish the ends of criminal justice was public defence. Id. Public defence included prevention of felonies, capture of felons, and recapture of escaping prisoners. Id.

n194 In our pluralistic society it is unlikely one would ever obtain unanimous agreement that any of these circumstances do in fact morally justify killing another human being.

n195 Note, supra note 191, at 608. See also supra notes 128-32 and accompanying text (discussing traditional self-defense scenario).

n196 See Fletcher, supra note 32, at 306 (concluding that self-defense does not confer affirmative benefit on society). Arguably, there may be some benefit when the victim of the killing threatens the defendant's life in connection with the commission of another serious felony between strangers. In such a case, it is arguable that the victim has shown himself to be a threat to other innocent persons in the same way as a terrorist or taker of hostages might be. On the other hand, the threat may be empty or it may come about in connection with an isolated criminal episode.

n197 See G. FLETCHER, RETHINKING, supra note 25, at 858 (arguing that, except for the aggressor's culpable behavior, there is no reason to value defender's life more than aggressor's life); Ashworth, Self-Defence and the Right to Life, 34 CAMBRIDGE L.J. 282, 282-83, 287-92 (1975) (recognizing that every person has basic right to life and physical security); Note, supra note 191, at 601, 603 (1977) (discussing difficulties inherent in weighing relative worth of lives); cf. Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884) (finding no acceptable standard for measuring comparable value of lives when victim innocent of wrongdoing).

n198 See supra note 129 and accompanying text (specifying that element of self-defense is reasonable belief that victim's conduct was unlawful).

n199 See supra note 78 (discussing Model Penal Code's treatment of self-defense as justification) and notes 101-07 and accompanying text (setting forth jurisdictional elements that justify intentional killing).

n200 Ashworth, supra note 197, at 305. Ashworth argues that a purely subjective test should apply to a person's belief in the circumstances of necessity upon which a justificatory defense might be based. Id. at 304. He rejects, however, the tendency to assume that a person's bona fide belief that certain action was necessary makes that action reasonable and lawful under the circumstances. Id. He argues that these are questions of law which the court should resolve. Id. at 304-05.

n201 See G. FLETCHER, RETHINKING, supra note 25, at 684, 762-69 (illustrating that mistakes regarding circumstances should be excused, not justified); Dressler, supra note 25, at 441 n.180 (supporting use of excuse theory when actor's mistaken belief results in taking of innocent life); Fletcher, Individualization, supra note 25, at 1276, 1279 (arguing that excuse theory is applied properly when actor has mistaken belief that self-defense is necessary).

n202 See supra note 43 and accompanying text (discussing Robinson's method of weighing competing interests of defender and aggressor).

n203 Id.

n204 See Fletcher, supra note 32, at 307 (using example of insane aggressor to illustrate problems inherent in moral forfeiture theory); Kadish, supra note 192, at 883-84 (analyzing difficulties in using forfeiture theory to support classification of self-defense as justification).

n205 See Dressler, supra note 25, at 454. Dressler rejects the forfeiture theory that a person who chooses to threaten another person's life must accept the consequences. Dressler argues that the theory is both overinclusive and underinclusive:

If Victim threatens Actor because of a mental disease which makes him unable to conform his conduct to the law, Victim's subsequent death cannot be justified under a forfeiture theory based on choice, because Victim's aggression was not freely willed. Nonetheless the common law presumably permits the killing of such an insane aggressor. Conversely, if forfeiture explained the defense, an aggressor would forfeit the right to complain when the other party attempted to kill him, even when such a killing was unnecessary; yet lethal self-defense does not result in acquittal when the person attacked can avoid his own death by less extreme tactics.
Id. (footnotes omitted). Instead, Dressler concludes that the self-defense rules can be rationalized on a theory of "comparative moral wrongdoing." Id. Victim's conduct is wrong even if he was insane and could not voluntarily choose to forfeit his rights. Actor's conduct is wholly innocent. Therefore, Victim's death is not harmful to society. Id. at 454-55.

This comparative moral wrongdoing theory is as unpersuasive as the forfeiture theories. Even though an insane defendant's conduct was wrong, we do not convict him because he did not voluntarily choose that course of conduct and was not morally blameworthy. The fact that the insane person was the victim rather than the actor should not make his conduct more reprehensible.

Two other theories have been suggested to support categorization of self-defense as a justification. The first is that self-defense should be regarded as the defender's moral right to vindicate his right of autonomy and to protection by the state against threats to his life. Kadish, supra note 192, at 884-85. This right is limited by the principle of proportionality. Id. at 886. As with moral forfeiture or comparative moral wrongdoing, this rationale does not withstand scrutiny when the defender is mistaken in his belief that his life has been endangered. Even if the defender is correct, it does not explain why the right should extend to disproportionate self-help. The state purportedly fulfills its duty to protect its citizens against threats to their lives through the processes of the criminal law. And, those processes of law would not, in most instances, hold sacrifice of the aggressor's life to be a proportionate punishment. See infra notes 220-21 and accompanying text (noting probable inapplicability of capital punishment to domestic abuse cases).

The second argument is that it is necessary to classify self-defense as a justification in order to deter aggression and that such a classification is philosophically defensible because "it is the aggressor who is the prime cause of the mischief." Williams, supra note 25, at 739. It is dubious that a self-defense justification does any more to deter aggression than would a self-defense excuse. Williams' argument that classification as a justification is philosophically defensible is no more than another variety of forfeiture theory.

n206 See W. LAFAVE & A. SCOTT, supra note 66, at 408-09 (stating that victim's consent generally does not constitute defense).

n207 See Vaughn & Moore, supra note 20, at 421 (discussing possibility that community is not aware of husband's violent nature); Waits, supra note 7, at 287-88 (stating that abusive husbands are rarely violent in other relationships).

n208 The proponents of the battered woman's defense decry this possibility as well. Their writings proclaim that their goal is not to obtain an acquittal for the battered woman merely because her victim beat her. Rather, they propose to show that the woman acted in proper self-defense when she killed her aggressor. The fact that he abused her does not justify the killing. It just helps to explain why she reasonably believed that she was being threatened with imminent deadly force. See supra notes 148-74 and accompanying text (discussing goals of battered woman's defense supporters).

This concern that the law may be interpreted to encourage killing of abusing spouses appears to be the basis for much of the criticism of the defense. See supra notes 18-19 and accompanying text (discussing fears that battered woman's defense may provide license to kill). If self-defense was not classified as a justification, this would no longer be a concern.

n209 See Dressler, supra note 25, at 452 (noting that abuser's conduct supports conclusion that his death does not constitute social harm).

n210 R. TONG, WOMEN, SEX, AND THE LAW 206 (1984). To justify even the killing of a battering husband who in fact was threatening imminent serious bodily harm, one must conclude that the husband's unlawful conduct made his life less valuable than the life of his wife. This conclusion is often justified on the premise that because he is a batterer, the abusive husband has a lesser interest in personal security than the battered wife. In other words, the husband by virtue of his aggressive nature morally forfeits his right to be free from aggression. See Fletcher, supra note 32, at 305 (discussing moral forfeiture theory). Fletcher believes that it is very hard to rationalize self-defense based on the moral forfeiture theory. Id. Accord Fletcher, Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 8 ISRAEL L. REV. 367, 371-73 (noting that moral forfeiture theory makes weighing of interests difficult); Note, supra note 191, at 608 (analyzing application of self-defense in excuse and justification); supra notes 202-06 and accompanying text (discussing inherent problems of moral forfeiture theory).

n211 See Fletcher, supra note 210, at 367 (discussing problems arising when aggressor is psychotic); see also id. at 371-73 (analyzing difficulties presented by application of moral forfeiture theory to nonculpable aggressors); Note, supra note 191, at 608 (concluding that weighing qualitative interests becomes difficult when aggressor does not present imminent danger).

n212 See Walker, supra note 133, at 10 (discussing common social patterns and individual traits that batterers share); Vaughn & Moore, supra note 207, at 420 (explaining that abusers have essentially same psychological characteristics as victims); Waits, supra note 7, at 286-91 (finding that batterers' behavior arises from both personal and social factors).

n213 Fletcher, supra note 20, at 371-73. Cf. Robinson v. California, 370 U.S. 660, 666 (1962) (cruel and unusual punishment clause of eighth amendment prohibits punishing person solely for having disease).

n214 See note, supra note 191, at 625 (contending that excuse theory circumvents need to rely on either quantification of human life rationale or on comparative quality of human life theory).

n215 Perhaps most telling of this entire question is Glanville Williams' use of the term "private defence" rather than self-defense. Williams, supra note 25, at 738-42. See also supra note 193 (distinguishing between "private defence" and "public defence").

n216 See supra notes 79-81 and accompanying text (discussing reasons for nonrecognition of self-defense at common law).

n217 See Note, supra note 35, at 627 (discussing self-defense and society's interest in limiting self-help). The traditional rules of self-defense restrict premature self-help by requiring that defendant reasonably believe that he is in imminent danger of serious bodily harm. Id. at 628. Furthermore, defendant must have no alternative for avoidance of the danger besides a forceful response. Id.

One's perception of how effectively legal rules can deter self-help depends upon one's view of the purpose of imposing the criminal sanction. Instrumentalists believe that the law is an effective deterrent of undesirable behavior. Consequently, an instrumentalist who wants to discourage self-help would favor very narrow, limited justification defenses. A retributionist, on the other hand, would not believe that strict rules of law discourage self-help. Nonetheless, a retributionist who disapproved of self-help might be equally willing to limit the use of justification defenses because he would believe that one who engaged in such conduct acted wrongfully and was culpable. See supra note 55 (comparing retribution and utilitarian theories of punishment).

n218 Conversely, resort to self-help may well be a function of the criminal justice system's inability to control crime. See supra notes 10-11 and accompanying text (positing that battered women resort to self-help due to lack of effective law enforcement). Indeed, this may be the greatest dilemma posed by the battered woman's defense problem. If the system could protect the female victims of abuse from their spouses, the need to resort to self-help measures in self-defense would never arise. Id.

The belief that the criminal justice system is ineffective in protecting innocent people from criminal victimization extends far beyond the realm of domestic violence. Increased reliance on violent measures of self-help is not necessarily the answer. Legal norms that discourage resort to violence except in the most extreme circumstances of necessity, while encouraging citizens to concentrate their energies on reporting to and assisting the police, may be more beneficial. Surely, such policies would promote maximization of the right to life of all people rather than limiting such rights to law abiding citizens. See Ashworth, supra note 197, at 290-92, 296 (discussing need to limit self-help in order to promote police assistance by citizens).

The success of such a policy choice, of course, presumes that the police and other appropriate agencies have the desire and the resources to respond. See generally Waits, supra note 7, at 298-328 (discussing police and prosecutorial reluctance to arrest, charge, and prosecute domestic abusers, and suggesting remedial measures).

n219 The possibility that not entirely innocent people might be killed under circumstances that do not necessitate the taking of life is even more significant. The imminence, necessity, and equal force requirements for establishing self-defense are designed to preclude errors and to limit the use of self-defense to situations in which the need to choose between the aggressor's life or the defender's life is absolutely certain. See supra notes 98-107 (discussing requirements/elements of self-defense). The tremendous number of cases in which the existence of these criteria is in issue attests to the futility of this effort.

n220 Cf. Godfrey v. Georgia, 446 U.S. 420, 432-33 (1980) (refusing to invoke death penalty against husband who murdered wife because husband did not torture or commit aggravated battery on victim).

n221 This presumes, of course, that the threats would have been carried out in the first place. Where defendant was mistaken with respect to necessity or the amount of force, this presumption is particularly troublesome. Arguably, laws that encourage self-help in derogation of a victim's right to life create deprivations of constitutional significance.

n222 Unfortunately, few abusers are convicted for their crimes. When the abuser does not expressly threaten death, he may not be punished. See supra note 158 (discussing lack of law enforcement efforts against abusers).

n223 Note, supra note 35, at 628. Whether the rules effectively accomplish that goal is beyond the scope of this Article.

n224 Even most intentional homicides will not be punishable by death. See Godfrey v. Georgia, 446 U.S. 420, 432-33 (1980) (limiting death penalty to "outrageously or wantonly vile, horrible and inhuman" crimes).

n225 See Note, supra note 35, at 627-28 (balancing right to self-defense and society's commitment to due process). See generally supra notes 118-24 and accompanying text (discussing policies behind limiting availability of recourse to self-defense).

n226 See supra notes 158-63 and accompanying text (listing feminists' assumptions in support of relaxation of self-help limitations).

n227 See supra notes 31-37 and accompanying text (discussing use of subjective standards in justification).

n228 See supra note 158 and accompanying text (discussing lack of police protection as reason for relaxing self-help standards).

n229 See Note, supra note 35, at 628-29 (discussing legal system's interest in limiting self-help for battered women).

n230 See supra notes 31-37 and accompanying text (discussing social desirability of justified conduct).

n231 Cf. Alldridge, supra note 25, at 666 (concluding that "[a] coherent defense cannot contain elements the rationale of which is that D was a responsible actor, together with elements whose rationale is that D was not.").

n232 See Donovan & Wildman, supra note 21, at 437-38. Donovan and Wildman offer the hypothetical case of a black man who had been the target of harrassment and who shot a police officer under the mistaken belief that the officer was a burglar. Id. The victim in a battered woman's defense case is not as likely to arouse our sympathy. However, unless the defense is limited to only battered women -- a limitation that even the defense's advocates do not desire -- the principles established in battered women's cases can be expanded easily to cases involving other types of extraordinary but understandable fears where the loss of a totally innocent life is much more likely. See id. (discussing instances when self-defense may lead to death of innocent person).

The law of self-defense traditionally works to protect innocent victims by requiring individuals to be aware of their particular unusual fears and to compensate for them when evaluating circumstances that give rise to those fears. The law accomplishes this objective by narrowly defining the time period in which prior events can be considered to explain the actor's allegedly justified behavior. Although this limitation effectively may ensure that people who are more sensitive than others to certain innocent behavior will not endanger innocent persons, it also results in conviction of persons for criminal conduct for which they cannot fairly be blamed because of "disabilities" for which they are not responsible. See supra notes 72-77 (discussing Robinson's theory of disabilities). In recent years, the law of self-defense has moved toward utilization of a more subjective standard that takes a wider range of surrounding circumstances into account and allows the fact-finder to judge the reasonableness of defendant's fears given defendant's special sensitivity. Donovan & Wildman, supra note 21, at 445. This approach, however, encourages acts that inflict social harm.

n233 R. TONG, supra note 210, at 206.

n234 See supra notes 32-37 and accompanying text (discussing social desirability of justified conduct); cf. Fletcher, Individualization, supra note 25, at 1285 (making a similar argument for proposition that necessity should be treated as excuse in prison escape cases).

n235 See Donovan & Wildman, supra note 21, at 455 (stating that society understands response of killing rather than being killed).

n236 See id. at 455-56 (concluding that society allows killing in name of self-defense); cf. Note, supra note 35, at 630 (suggesting that jury nullification of traditional law of self-defense in battered women's cases illustrates society's need to excuse women's conduct as self-defense because it is partially determined conduct). One's position in the debate between free will and determinism is not relevant to the argument in this Article that battered women's cases illustrate the need to categorize self-defense as an excuse. This author's thesis presumes that modern Anglo-American criminal law must accept the fact that people are influenced by their environment and experiences. Accordingly, if people are affected in a way that creates understandable alterations in their perceptions of reasonableness, they cannot fairly be blamed when they cannot shed these experiences in the face of a perceived threat to their safety. Although physically voluntary, their actions may not be morally voluntary and they should not be punished. At the same time, a criminal charge indicates to the public that there is some question regarding the propriety of their conduct and that similar acts committed under the same objectively identifiable circumstances are not permissible.

n237 Mental instability created by the unbearable situation understandably may have influenced perceptions of pressure. Current law only allows us the option of mental health treatment as opposed to punishment or acquittal if the defendant meets the narrow legal definition of insanity. Many persons who are not legally insane suffer from treatable mental illness or from emotional difficulties. This may be true of some people who establish claims of excuse. At least one author has suggested that it may be appropriate to retain some collateral consequences of conviction, such as requiring treatment, as potential dispositions for defendants who establish claims of excuse. See Robinson, supra note 24, at 285-91 (suggesting alternative sanctions for excused defendants).

Prepared: February 9, 2001 - 5:02:29 PM
Edited and Updated, February 9, 2001

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