Chapter IV

Theories of Defense: Excuse v. Justification


A. The Excuse Defense

B. The Effect of an Enhanced Understanding of Spousal Abuse on Theories of Defense

1. Similarities Between the Battered Woman Syndrome and the Stockholm Syndrome

2. Separation Assault

3. Does the BWS Support an Excuse or a Justification Theory of Defense?

C. The Justification Defense

D. The Self-Defense Instruction in Michigan

Theories of Defense: Excuse v. Justification

Excuse and justification are theories of defense employed to convince a trier of fact that a defendant lacked criminal responsibility for her actions. A defendant who employs an excuse defense admits that the offense she committed was a crime, but submits that factors peculiar to her situation should prevent a judgment of criminal responsibility. Examples of an excuse defense include temporary insanity and diminished capacity. A defendant who employs a justification defense attempts to show that her action was not a crime at all; rather, it was justified under the circumstances to avoid greater harm or to further important societal interests.


A. The Excuse Defense

Before 1980, lawyers defending battered women who killed their spouses typically employed an excuse theory of defense. In 1977, a 29 year old housewife, Francine Hughes, was charged with first degree murder for killing her abusive husband. 82 After enduring thirteen years of vicious beatings, death threats, intimidation, and humiliation, Ms. Hughes set fire to the bed in which her husband was sleeping. For years before the murder, Ms. Hughes tried to escape from her husband without success. She actively sought help from lawyers, judges, social service agencies, and the police, all to no avail. Had she not killed her husband, it seems probable that she would have died at his hands.


Ms. Hughes' defense counsel believed that a self-defense claim would be legally infirm because self-defense is defined as occurring in the presence of imminent danger. 83 Ms. Hughes fought back at a moment when her husband was sleeping. At the time, Ms. Hughes' lawyer could not find a single precedent for an argument for self-defense in a case in which a woman killed her abuser in a non-confrontational situation. 84


Instead of relying on a self-defense claim, Ms. Hughes utilized an excuse defense--she claimed she had been temporarily insane when she killed her husband. An expert testified that she was "overwhelmed by the massive onslaughts of her most primitive emotions." 85 In this case, temporary insanity was a successful defense. Ms. Hughes was found "not guilty."


Although the temporary insanity defense produced a just result in the Hughes case, it has lost favor for several reasons. First, temporary insanity is a perilous defense. A defendant acquitted because of temporary insanity goes free. But a defendant found "guilty but mentally ill" faces the same term in prison as a sane person.


A second flaw in the excuse defense is that it presumes that a battered woman suffers from a mental defect. Recent psychological and scholarly literature argues that, in fact, battered women who kill their abusive partners behave as would any reasonable, sane person in their situation.


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B. The Effect of An Enhanced Understanding of Spousal Abuse on Theories of Defense

Studies on (1) similarities between the Stockholm syndrome and the BWS and (2) the phenomenon of "separation assault" have led to widespread rejection of the belief that battered women suffer from mental defect.


1. Similarities between the BWS and Stockholm Syndrome

Studies of similarities between the BWS and the Stockholm Syndrome support a feminist analysis of the BWS. 86 The Stockholm Syndrome is a psychological theory which attempts to explain why a hostage bonds with her captor. Four conditions give rise to the development of the Stockholm Syndrome 87:


a. A captor threatens to kill a person, and is perceived as having the ability to do so.

b. The person cannot escape, so her life depends on the captor.

c. The person is isolated from outsiders.

d. The captor is perceived as showing some degree of kindness to the person.


The Stockholm Syndrome describes a group of behaviors which develop in response to a threat to survival posed by a captor. Hostages develop survival rather than escape skills because they see opportunities to escape as too dangerous to pursue. 88 Because escape seems impossible, hostages respond to their situation by becoming highly attuned to the pleasures and displeasure of the captor. They cope with a continuous and immediate threat of death by adopting their captor's world view and assuming submissive postures. Other behaviors attributable to the Stockholm Syndrome include:


•Victim denies anger at abuser and focuses on abuser's good qualities.

•Victim's "fight or flight" reactions are inhibited.

•Victim fears interference by authorities.

•Victim feels overwhelmingly grateful to the abuser for having spared her life.

•Victim fears that even though captor is jailed, he will return to capture her again.


Research on the Stockholm Syndrome suggests that the behaviors characteristic of battered women are not pathological or masochistic, but are what we would expect from an individual in a life threatening captor/captive situation. In support of this conclusion, Graham et al. cite the fact that lower income women who continue to live with partners because they have no financial resources reported more partner bonding. 89 In other words, women who are realistically the most unable to escape rationally perceive the impossibility of their situation and reasonably respond to it in the only way possible: by nurturing an emotional bond with the batterer.


Graham et al. also found that women who separated from partners but returned because their partner located them, or because he threatened to kill them, showed more partner bonding. 90 Thus, the degree of "traumatic bonding" is rationally related to the degree to which a woman feels her life is in danger.


Despite the fact that battered women and hostages exhibit shared psychological responses to a similar experience, popular opinion condemns battered women who bond to their partners as masochistic, while sympathizing with hostages who bond to their captors. The media treats hostage situations as high drama, while a battered woman's plight is considered a private family affair. Outsiders are more likely to negotiate and win the release of hostages. Outsiders are often reluctant to involve themselves when a battered woman asks for help. 91


2. Separation Assault

Traumatic bonding may not be the only reason that a battered woman is reluctant to leave her abuser. She may have a perfectly reasonable belief that if she leaves, he will track her down and harm her or kill her.


Law enforcement experts agree that leaving an abuser greatly increases the danger a woman faces. 92 According to the Bureau of Justice Statistics, in 1994, women separated from their husbands had a violent victimization rate of 128 per 1,000.


Orders of protection and pressing criminal charges are not always sufficient to protect a battered woman when her batterer, recognizing his loss of power and control, comes after her. As is clear from the following incidents, some batterers will go to any length to hurt their former partners 93:


•Patricia Kastle, an Olympic skier, was shot by her former husband notwithstanding a protection order forbidding him from coming near her.


•For eight years, Lisa Bianco of Indiana feared the day her husband would be released from prison. When prison officials granted her husband an eight-hour pass, he drove directly to her home, broke in, and beat her to death with the butt of a shotgun.


•Shirley Lowery, a grandmother of 11, was in the hallway of the courthouse where she had gone to get an order of protection when her former boyfriend stabbed her 19 times with a butcher knife.


Martha Mahoney coined the term "separation assault" to focus attention on the empirical evidence of the harm that comes to women who try to leave their abusers. 94 According to Mahoney, battered women in the legal system suffer from legal actors' misconceptions about the reasons battered women stay in abusive relationships. Recognition of the prevalence of separation assault supports the fact that a battered woman acting in self-defense is acting according to a rational perception of danger.


Given the modern view that battered women who kill their spouses are not insane, but rather acting rationally in an effort to defend themselves, the excuse theory of defense is employed less often than it used to be.


3. Does the BWS Support and Excuse or a Justification Defense Where a Battered Woman Kills?

At first glance, the theory that battered women experience traumatic bonding would seem inconsistent when applied to a battered woman who killed. Some critics of using the BWS argue that there is an "inherent inconsistency of describing the battered woman's unhealthy mental state to show the reasonableness of her belief of imminent danger." 95 In her article arguing against admissibility of expert testimony on the BWS, Mira Mihajlovich states that a battered woman's "learned helplessness" necessarily blurs her ability to form rational beliefs about when she is in imminent danger.


Statutory and case law have also misconstrued the BWS as evidence in support of an excuse defense. For example, Missouri law has procedurally equated the BWS with an insanity plea by providing that a defendant who seeks to introduce evidence on the BWS must submit to an exam by a court appointed psychologist or psychiatrist. 96 In addition, appellate opinions have characterized battered women as psychologically disturbed. 97


"Learned helplessness" is misinterpreted when it is defined as a mental defect or character flaw. The whole point of learned helplessness as a psychological theory is to remove the stigma of mental defect from the battered woman by emphasizing that the behaviors associated with it developed as an adaptive survival mechanism in response to abuse.


Angela Browne, author of Assault and Homicide at Home: When Battered Women Kill, explains that there is no inconsistency between learned helplessness and a battered woman who kills--that a battered woman ceases to practice the survival skills characterized by the Stockholm Syndrome when she endures an act of violence which is significantly above the normal range of violence she has previously experienced. A woman who kills her batterer often does so only when she thinks it is impossible to survive the next episode of abuse, or when the batterer escalates or threatens escalation of violence towards a child. Thus, the theory that battered women, like hostages, may experience traumatic bonding is consistent with the fact that some battered women ultimately kill their abusers in defense of their lives.


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C. The Justification Defense

Today, a lawyer defending a woman in Francine Hughes' position would probably employ a justification defense. There is a common myth that most battered women kill while their husbands are asleep, or during a lull in the violence. Actually, about 70% of battered women who kill their batterers do so during a confrontation with the batterer. 98 Thus, the trend toward a justification theory of defense is an appropriate one.


Use of a justification defense is still not without its problems, however. Legal scholars engage in hot debate over whether existing definitions of self-defense can accommodate battered women who kill their spouses.


In determining whether a defendant acted in self-defense, a trier of facts considers issues such as: (1) whether the defendant reasonably feared that she needed to use force to defend herself; (2) whether the threat to the defendant was imminent; (3) whether the defendant met the threat with excessive force; and (4) whether the defendant had a duty to retreat.


Some critics charge that battered women, like Francine Hughes, who killed their abusive partners in a non-confrontational situation cannot get a fair trial under existing definitions of self defense. For example, Cynthia Gillespie, author of Justifiable Homicide, asserts that because self-defense jurisprudence requires a threat to be imminent, a woman who kills her batterer while he is sleeping is prevented from utilizing the defense. 99 Specifically, Gillespie argues that under self-defense law strictly applied, a woman is not allowed to fight back with a weapon until her batterer actually beats her severely enough to make it clear that death or great bodily harm is imminent. Of course, by that time, she would be rendered helpless.


Critics of self-defense laws as they apply to battered women who kill also contend that traditional principles of self-defense jurisprudence are based on two men of equal strength who have never met, and that traditional principles do not consider the problems posed by combatants of vastly different size and strength. Scholars who see existing definitions as hurting women's ability to receive a fair trial propose modification of definitions of "imminence," expansion of the reasonable person doctrine to include the "reasonable battered woman, " and elimination of duty to retreat.


Other scholars argue that existing self-defense doctrines can, in principle, accommodate battered women who kill their spouses. 100 According to Professor Holly Maguigan, existing self-defense law is adequate if trial judges properly apply the laws to battered women who kill. Maguigan argues that the requirement that the threat to a defendant be imminent before she act in self-defense is not so limited that it prevent consideration of the woman's circumstances. Rather, a jury can and will consider the imminence requirement fulfilled when, for example, a woman kills her batterer with an honest and reasonable belief that the moment he wakes up he will kill her, and if she waits she will be powerless to defend herself. Thus, Magiugan argues, existing definitions can accommodate the self-defense claim for battered women.


D. The Self-Defense Instruction in Michigan

The Michigan self-defense instruction is a hybrid of the subjective and the objective reasonable person standards. (See Appendix 8). According to the subjective standard, a woman is justified in using deadly force if she honestly believes it is necessary to prevent death or great bodily harm. According to an objective standard, the fact finder asks whether a reasonable person would believe it necessary to use force to protect herself. The Michigan instruction requires that a woman's belief be "honest and reasonable," but also directs the jury to consider "all the circumstances as they appeared to the defendant at the time." 101 The Michigan instruction makes no provision for the special circumstance of battered women with regard to the requirement that she believe her acts are " immediately necessary.".


Most of the danger of injustice to battered women comes from application of the self-defense instruction. For example, the instruction says that a person must not kill to protect herself from minor injury. In determining the degree to which the injury the woman faced at the hands of her batterer was minor, a judge or jury may or may not know that abused women are exquisitely attuned to subtle actions, movements, and threats by a batterer. An action on the part of the deceased batterer which might seem minor to the judge may, because of the victim's prior conduct, alert the woman that there is much worse harm to come. Subtle actions which may not signify danger to an outsider may be known to a woman as a sign that she is in great danger. Some courts have recognized these unique perceptive abilities among survivors of battering. 102


Also, in Michigan, the self-defense instruction asks the jury to consider, in the course of evaluating the woman's reasonable belief, whether the deceased batterer was armed with a dangerous weapon. This instruction may prejudice battered women because batterers are often armed with potentially lethal objects which are not considered deadly weapons. Research and common sense dictate that even non-lethal objects like fists, keys, books, bottles, hot food, or ashtrays can be very threathening--especially when the person wielding the object is significantly bigger and stronger. 103


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82. Faith McNulty. The Burning Bed 198-.

83. See: id at 199.

84. Id.

85. See: id. at 255

86. See, e.g., Graham et al. Survivors of Terror: Battered Women, Hostages, and the Stockholm Syndrome. Feminist Perspectives on Wife Abuse. Eds. Yllo and Bograd. SAGE Publications (1988); Graham and Rawlings. Bonding With Abusive Dating Partners: Dynamics of Stockholm Syndrome. Dating Violence: Young Women in Danger. Ed. Levey. Seal Press (1991).

87. See: Graham et al. at 219.

88. See: id. at 224

89. Id.

90. Id. at 30

91. Id.

92. Nancy Gibbs. "'Til Death Do Us Part: When a Woman Kills An Abusive Partner, Is It an Act of Revenge or of Self Defense?" Time. January 18, 1993. p.38.

93. Id.

94. Martha R. Mahoney. Legal Images of Battered Women: Redefining the Issue of Separation. 90 Mich L.Rev. 6(1991).

95. See: Mihajlovich at 1276.

96. Battered Women Who Kill Their Abusers. 106 Harv L.R. 1574, 1586 (1993).

97. Id.

98. Holly Maguigan. Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals. 140 U.Pa.L.Rev. 379 (1991).

99. Cynthia Gillespie. Justifiable Homicide. Ohio State University: Columbus. 1989.

100. See: Maguigan at note 95, supra.

101. See: § 7.17 Michigan Standard Jury Instructions

102. See: People v. Torres, 488 N.Y.2d 358, 362 (1985); State v. Allery, 682 P.2d 312, 314-316 (Wa. 1984);Ibn-Tamas v. U.S., 407 A.2d 626, 634-39 (D.C. 1979).

103. See: Brief of Amici in Support of Tanicca Henry's Appeal for Leave to the Michigan Supreme Court (citing Gillespie at 52-53).

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