Imminence and Self-Defense

-- By PaulinaSalmas - 17 Apr 2010

(Jess Hallett rewrite May 12)

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.

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 reach, 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? It is difficult to square egalitarianism with a seemingly arbitrary result of one person alive and one person dead, but ultimately, if both have the option and potentiality of killing, perhaps arbitrariness is egalitarian. In instances of real danger, further, people typically do not rationally consider equality and noble sacrifice, and often act out of genuine human necessity. While recognizing a moral imperative to sacrifice one’s own life, for instance, the Dudley and Stephens court noted that “we are often compelled to set up standards we cannot reach ourselves.” Fear and desperation make the noble egalitarian ideal of self-sacrifice impractical and implausible.

However, even without discounting a general distinction between killing in self defense and killing preemptively or retroactively, the trouble with attempting to justify the imminence requirement in a case like Norman is one that arises when there is no actual physical imminence of deadly force by a sleeping aggressor, but nonetheless actions by the defendant can be seen as self-defensive rather than self-preferential. Ms. Norman had been denied help from the police, was afraid to make formal accusations, had attempted suicide, and had even been prevented by her husband from signing up for welfare to avoid forced prostitution. Ultimately, she may have seized upon what she – a severely battered an traumatized woman who had tried and failed to escape her abuser’s escalating violence – saw as the only opportunity to save her life. It is difficult to see, where the defendant genuinely believes that she has no alternative, and that her husband will kill her when he wakes up, that such a situation belongs in the category of “self preference” rather than true self-defense.

Both Ferzan and the Norman court are reluctant to consider past abuse in determining whether the victim’s threats were imminent enough to justify self-defense, noting a distaste for citizen retributive measures of self-help. However, as much as a victim’s moral failures themselves may not excuse killing, abuse and history speak to the reasonableness of a victim’s belief in the immediate need for her actions, and the imminence of potential danger. An abuser, clearly unable to kill the defendant while asleep, nonetheless was a ticking time bomb: the rationale of the defendant’s belief is only evidenced by her past experiences and psychological state that was created out of the victim’s abuse.

Certainly, there are differences between cases of necessity and those of self-defense. With necessity, we make a choice of a lesser evil – as such, we may understand why Dudley and Stephens killed aboard the Mignonette, or why a spelunker kills his partner in a cave lacking oxygen. Killing an innocent is quite different from killing the person who is attempting to save your life. However, it is possible to compare the sense of understanding we feel about such cases of necessity – even if they embody more ‘self preference’ and less ‘self defense’ – to those in which a person kills an aggressor to save his life. Underlying these cases is a sense that a killing, at least from the perspective of the defendant, was absolutely necessary, whether to prevent greater evil that included his own death, or to prevent his death at another’s hands. In such cases, what deterrent effect is there in punishing the taking of a life? Courts like that in Norman place undue emphasis on imminence of attack, and negate the purposes of the self-defense doctrine. Instead, an approach more akin to the MPC model, which focuses on the immediate necessity of the defendant’s action, is one that is more appropriate and leaves more room for judicial empathy.

Hi Paulina. Please find my re-write above. A few notes about some of the changes I made.

- In some places, you had written about the “necessity” doctrine when you meant to write about self defense, and in others you introduced ideas that did sound more like necessity defenses, so I tried to separate self defense from necessity, but still include a bit about how necessity cases might relate to self defense.

- I disagreed with your argument about how Ms. Norman’s husband’s own culpability made her actions more defensible, because of their immorality. Instead, I tried to focus on what his actions meant for her and how she perceived the danger he posed.

- Funnily enough, my paper was on this same topic. I’m interested to see what my editor says, because I’ve been re-thinking some of the ideas. I think it’s a really interesting topic and find it ridiculous that in some states the fact that the victim was sleeping can categorically preclude a self-defense claim. I do think that imminence is an important requirement- but the way the word seems to be defined, to me, is far too narrow. Anyway, I liked reading your paper and liked the references to Dudley & Stephens and the cave cases. I still edited out a lot of that because of space, but would like to see how that could be re-worked in in a bit more streamlined way.

- I realize I made a lot of changes, so if this has strayed too far from your original work, feel free to let me know and I can make further changes that might be more in keeping with what you intended. If you do more work on this paper in response to my changes, I’ll check back in. Good luck! Jess.

-- JessicaHallett - 13 May 2010

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