In some states, defendants accused of murder who seek a justification of self defense must be found to have acted in the face of imminent harm. This imminence requirement has sometimes precluded battered women who killed their sleeping abusers from raising the defense. For instance, in State v. Norman, 378 S.E.2d 8, the defendant’s husband had physically and verbally abused her throughout their 25-year marriage, forced her into prostitution, and on a night when paramedics came to her aid after a suicide attempt, insisted that they let her die. The court held that Ms. Norman, who shot her husband to death as he slept, was not entitled to a jury instruction of self-defense. Concerned that a contrary holding would encourage self-help among battered women, the court stated that permitting the jury instruction would “legalize the opportune killing of abusive husbands” based on “subjective speculation as to the probability of future felonious assaults.”

In “Defending Imminence,” 46 Ariz. L. Rev. 213, Kimberly Ferzan argues that relaxing the imminence requirement to excuse or justify Norman-esque killings would encourage behavior that is less self-defensive than “self-preferential.” According to Ferzan, a self-preferential killing is one in response to “inchoate and potential threats,” which, though lacking immediate or overt violence, nevertheless indicate mortal danger. Consider two people trapped in a cave. May one kill the other in order to conserve oxygen? No, Ferzan concludes: self-defense should not be defined so broadly, and relaxing the imminence standard could extend the defense where it is not appropriate to do so. A case like that of Dudley and Stephens is another example of self-preference: killing in the face of impending, but not immediately imminent threat of death. Ferzan supports the imminence doctrine because it forecloses the possibility of self-defense in cases where murders are committed, not to stave off an impending attack, but to preempt an inferred one. In reaching this conclusion, however, Ferzan too narrowly construes notions of self defense, removing the possibility of such a justification for people like Ms. Norman.

Imminence and Self-Defense

-- By PaulinaSalmas - 17 Apr 2010

Criminal defendants accused of murder that seek to invoke the defense of necessity must demonstrate that they acted under the risk of imminent harm. This imminence doctrine has, in some states, precluded battered women who killed their sleeping abusers from raising a necessity defense. For instance, in State v. Norman, 378 S.E.2d 8, the court held that the defendant, who had killed her husband as he slept, was not entitled to a jury instruction on self-defense. Concerned that a contrary holding would encourage self-help among battered women, the court stated that allowing the jury instruction would “legalize the opportune killing of abusive husbands” based on “subjective speculation as to the probability of future felonious assaults.” The defendant’s husband had physically abused and forced the defendant into prostitution throughout their 25-year marriage.

In “Defending Imminence,” 46 Ariz. L. Rev. 213, Kimberly Ferzan argues that relaxing the imminence requirement to excuse or justify Norman-esque killings would encourage behavior that is less self-defensive than “self-preferential.” According to Ferzan, a self-preferential killing is one in response to “inchoate and potential threats,” which, though lacking immediate or overt violence, nevertheless indicate mortal danger. For example, the defendants in The Queen v. Dudley & Stephens, 14 Q.B.D. 273, in cannibalizing a companion to avoid starving on the open sea, killed self-preferentially. Alternatively, consider, as Ferzan suggests, two people trapped in a cave. May one kill the other in order to conserve oxygen? No, she concludes: self-defense should not be defined so broadly. Ferzan supports the imminence doctrine, in part because it forecloses the possibility of self-defense in cases where murders are committed, not to stave off an impending attack, but to preempt an inferred one.

Egalitarian impulses are at the heart of this distinction between self-preference and self-defense. The conclusion that one death is more desirable than two is easy to arrive at, but which spelunker should be sacrificed for the life of the other? Should the preference belong to the youngest, the healthiest, the breadwinners, or those who haven’t drunk the seawater? If principles of bodily autonomy preclude such life-maximizing measures as forced organ donation, surely a person has a human right to choose to remain alive and slowly suck her share of oxygen from the cavern.

Of course, the answer to this abstract moral problem may seem more obvious if we ourselves were the individuals trapped in the cave or adrift in the dinghy. Though the court in Dudley & Stephens stated that “it may be the plainest and the highest duty to sacrifice [one’s life],” it also noted that “we are often compelled to set up standards we cannot reach ourselves.” It seems impossible to predict how any given person might act in similar situations. While a noble reaction is ideal, it seems plausible that fear and desperation could cause some to become violent. In general, convicting for lives taken during dire situations might serve very little deterrent effect. Indeed, Judy Norman, at trial, testified, “I just couldn’t take it no more…even if it means going to prison. It’s better than living in that.”

Both the court and Ferzan were reluctant to consider past abuses in determining whether the victim’s threats were imminent enough to justify self-defense. Ferzan noted that a battered woman’s motives must be preventative and not retributive, because “citizens may not punish.” However, the existence of past abuse might serve as evidence indicating that future abuse will likely follow, and therefore that self-defense should be justified. Furthermore, while a man’s violence should not give his wife carte blanche to dispose of him how she pleases, it is unrealistic to insist that an abusive husband is on equal moral ground with an innocent spelunker or defenseless Richard Parker. Determining who should be sacrificed on the basis of age or number of defendants produces arbitrary results, and the killing must be justified on grounds other than choice of victim. However, sacrificing the person who has created and is prolonging the emergency is more rational. For instance, it would be more acceptable to kill a spelunker that intentionally barricaded the cave and actively depleted its air supply. If this situation is less self-preservation than self-defense, then so too is that of a woman whose husband has trapped her in a relationship with the continuing threat of violence.

The Norman court, though detailing the various abuses that Norman suffered during her 25-year marriage in a brief and dispassionate list, described the killing itself in detail. First, Norman’s pistol jammed. After fixing it, she shot her husband in the head; on determining that he was still breathing, she shot him twice more. The court implicitly suggests that the time taken to shoot the defendant implies a lack of imminent threat. Indeed, in some jurisdictions, if, during a fight, one participant overcomes and subsequently shoots the other, premeditation may be established by a pause of only seconds. Premeditated murder is punished more harshly than killings conducted in the heat of the moment, and shades of premeditation might make some necessity cases less palatable than others. I’m not an expert on the logistics of being trapped in a cave, but it appears that murder in this scenario requires more premeditation than the situations in Norman or Dudley & Stephens. To fully take advantage of a larger air supply, one occupant must kill the other as soon as possible, whereas the yachting crew was reportedly able to fast until Richard Parker appeared to be dying of natural causes. From one perspective, Judy Norman endured decades of abuse before killing her husband; from another, she coldly noted an opportunity to rid herself of her husband and took advantage of it. She did not interpret her jammed gun as a serendipitous hint that she should be merciful; she fixed it and shot her husband dead.

This perhaps makes some uncomfortable excusing the killing. In attempting to narrow self-defense doctrines, some courts have created a rule that rests on stigma and fastidiousness instead of empathy.

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