Don’t Call Me Crazy

Criminal law generally only allows for the use of deadly force in self-defense when one is faced with an imminent threat. Although this rule has the laudable goal of discouraging premeditated murder, it also rests on an assumption that given enough time, a reasonable person can rely on the assistance of the state to protect them from harm. This assumption ignores the ugly reality that in some situations, and especially for victims of domestic violence, it may be reasonable to believe that the state will not assist you.

Evidence

I have called the police twice and they did not come either time. On one of these occasions, an acquaintance’s intoxicated boyfriend was assaulting her. We got him out of the house, he passed out in the yard, and I called the police and described what had happened. After about 90 minutes, the abusive boyfriend woke up and walked away. I stayed awake for another few hours, wanting to talk to the police when they arrived. They never came. The abusive boyfriend spent the night passed out in his van half a block away, and in the morning, convinced his girlfriend to take him back. This experience, and its consistency with almost every other experience that I have had with the police, has led me to the believe (reasonably, I would argue) that I cannot rely on the police to respond when I ask for help. And this is me – a white girl, from a privileged background, with the financial means, social ties, and family support to never feel truly stuck. I cannot even imagine how it is for an indigent woman, or a woman of color, or a woman in an abusive relationship, and especially not for a woman experiencing all of those things simultaneously.

Unfortunately, the argument that the state does not adequately protect victims of domestic violence, is substantiated by evidence beyond my own personal experience. Consider some of the findings that Congress considered when discussing the Violence Against Women Act: One study in Texas indicated that the police did not respond to calls from one out of three battered women. At the Sheriff’s Department in Los Angeles, the practice was to put domestic violence calls at the bottom of the response list, rather than treating them as an emergency. A Washington DC study showed that even in cases where a victim of domestic violence was actually bleeding from her injuries when the police arrived, arrests were still made less than 15% of the time. Combined with the Supreme Court's ruling in DeShaney, (holding that the state has no affirmative duty to protect a citizen from abuse), the government has left victims of domestic violence with no one that they can count on to protect them, and no way to seek redress against the state for this failure to protect. Making this a perfect, if tragic, example of how the law often works punitively than therapeutically when operating on "the bottom", many jurisdictions also hold victims of domestic violence criminally culpable for failing to protect their children from the abuse of their partners.

What We’ve Tried to Do

Even though society at large is probably not ready to accept a conclusion that it is entirely reasonable for victims of domestic violence to believe that the state will be unable to help them, and therefore reasonable for these victims to use premeditated deadly force to protect themselves and end their cycle of abuse, there is at least some recognition that victims of domestic violence may be a special case. We see this primarily through the use of Battered Women's Syndrome as a defense, which has been used in some jurisdictions to allow battered women to escape convictions for violent behavior when differently situated parties might have been convicted. However, several feminist scholars, with whom I agree, point out that this is problematic in that it perpetuates a damaging stereotype of battered women, and women in general, as mentally reduced. As well as reinforcing a powerless and marginalized status for women, testimony on Battered Women's Syndrome also generally fails to protect battered women from criminal charges. Most jurisdictions, if they allow testimony on Battered Women's Syndrome at all, only allow it to inform the jury's decisions to a very limited extent, and do not allow it as a complete defense in the case of violent behavior that seems clearly premeditated, for example, killing an abusive husband in his sleep. Battered Women's Syndrome is therefore an unsatisfactory solution to the problematic punitive, rather than therapeutic, treatment of battered women in the criminal justice system.

What Needs to be Done

As I can not imagine a way in which self-defense law could allow victims of domestic violence to kill their abusers, without allowing all sorts of other, less socially desirable forms of premeditated murder, I believe that the solution to this problem must lie elsewhere. At the very least, we need to make it a reality that victims of domestic violence can reasonably rely on the state to protect them from their abusers. A decent starting point for this would be if Congress rewrote VAWA to allow suits against state actors rather than individual abusers. Although this would not provide victims of gender violence with the direct vindication that the original version of VAWA would have, it would create some sort of state duty to protect women from domestic violence, which would hopefully lead to better protection, and at least allow those who suffer from a lack of protection to have some form of redress. At the very least, the criminal justice system needs to acknowledge that the assumption that reasonable battered women can look to the state for help is at odds with reality, and accept that the problem is not that battered women are "crazy".