The Problem
Worldwide, 70% of female homicide victims are murdered by their male partners. Although most governments, including our own, have publicly condemned violence against women, they have failed in substantive ways to fully address the violence, provide sufficient financial resources to end it, or meet women’s needs for alternative strategies and survival.
In the U.S., one-third of female murder victims are murdered by male partners, and women survive an estimated 4.8 million rapes and physical assaults each year at the hands of their husbands or boyfriends. By comparison, less than 4% of male murder victims are killed by female partners, and most of those are women acting to defend themselves from men who have repeatedly beaten them. In Michigan, one woman is murdered by a husband or boyfriend every five days. The establishment of shelters, wider public education and greater economic options for women have resulted in a dramatic decrease in men who are killed by female partners over the past thirty years. However, the number of women who are murdered by male partners has not decreased significantly during that same period.
Despite the very real dangers that many women live with on a daily basis, there is evidence to suggest that women who kill in their own defense may face greater punishment than other defendants. A study conducted by The Michigan Battered Women’s Clemency Project of homicide convictions and sentences over a three year period from 1986 to 1988, inclusive, in Oakland County, Michigan, revealed startling levels of discrimination against defendants who are victims of domestic violence. Results showed that domestic violence victims had higher conviction rates and longer sentences than all others charged with homicide, including those with previous violent criminal records. Overall, a white female defendant with no criminal history who was convicted by a jury of killing a white person could expect an average sentence of 10 to 30 years. However, if the woman was a victim of domestic violence, her predicted sentence increased to life.
Currently, there are approximately 370 women serving time in Michigan prisons for Murder I, II or felony murder. We estimate at least one-third are women who acted in self-defense against an abusive partner but did not receive due process or fair trials based on the facts of their cases; and many have served 20 or more years. Thus, in addition to the abuse they suffered in the domestic sphere, they are now spending the rest of their lives in a prison system that Amnesty International has named one of the worst prison systems for women in the nation, especially with regard to sexual assault and retaliation by guards, medical neglect and other abuses. This systemic and institutionalized problem sustains the larger, structural pattern of violence against women.
Obstacles to Due Process and Fair Trials
A review of cases in which courts found an astonishing degree of incompetence with catastrophic consequences for battered women defendants reveals an urgent need for remedial action. Judges, prosecutors, defense attorneys and jurors all bring to any trial myths and stereotypes about battered women that are used to exclude individual women from receiving due process and fair trials based on the facts of their cases. For example, prosecutors routinely ignore evidence of abuse, self-defense, or lack of intent when making decisions about whether to bring charges or what charges to bring. At trial, prosecutors try to inflame the jury with myths and propaganda in order to “win” convictions. Both prosecutors and defense attorneys frequently pressure women to plea bargain who were wrongly arrested and charged. And defense counsel are too often unprepared to link abuse to defense theories and present evidence of battering, including its well documented effects on women. Judges are a major obstacle to fair trials for battered women, as Holly Maguigan demonstrated in a 1991 survey of 223 appellate cases of homicide convictions of battered women in California. She found that judges implement their bias through the exclusion of a battered woman’s evidence, denial of self-defense instructions, and/or the repudiation of instructions to the jury on the relevance of that evidence. Their decisions to disregard the failure of law enforcement as well as issues of duress, violence or threat virtually guarantee conviction of battered women defendants. Thus, “any” evidence coming from any source should satisfy the requirement for a full instruction on self-defense, and that includes instructing the jury on the relevance of that evidence. Maguigan’s study showed that jurors only understood the significance of the defendant’s evidence and the social context of a battered woman when a judge spelled it out for them and instructed them to consider those issues.
Why didn’t she leave? This question attests to the failure of courts and other public institutions to make this legal point widely understood and ignores the large body of evidence showing that women do leave. Further, it denies women’s agency, self-direction, and acts of resistance toward independence and survival. A complex vision of agency needs to be recognized within the law. Battered women’s actions toward self-preservation must be understood within a framework of coercive control that links the deprivation of liberty occurring through a process of ongoing intimidation, isolation and control to the social context of structural inequality, gender subordination and violations of human rights. “Separation assault,” is a very real threat: domestic tyranny becomes potentially lethal in refusing to acknowledge a woman’s independence at any price when she tries to leave. A battered woman’s actions need to be seen as reasonable and rational in light of her experience and within the framework of inequality that shapes these cases.
Areas of self-defense law that unfairly result in convictions of battered women who kill include 1) the definition and interpretation of imminence; 2) the rule or expectation to retreat; 3) the requirement of proportionality. The concept of the “reasonable person” has historically relied upon a masculine standard without allowing for the full set of circumstances known to a battered woman defendant when determining her fear of imminent harm. It is important to challenge the concept of reasonableness in general in order to ensure that it includes the wealth of women’s (as well as men’s) individual experiences due to continuing public resistance to the idea of a woman’s reasonableness. Imminence is often a judge-made rule of common law that protects the batterer rather than the life of the person who has a reasonable fear of death or serious bodily injury. A woman who has a history of abuse may reasonably perceive danger to her life that may not be immediate but is nonetheless imminent. Despite changes in the law affecting the duty to retreat, judges and juries continue to blame battered women for not leaving rather than holding courts and law enforcement responsible for failure to arrest and prosecute batterers and following jury instructions that consider the full set of circumstances that contribute to the reasonableness of a battered woman’s fear and therefore the necessity for her to act.
It was not until 1992, in People v. Wilson, that the Michigan Court of Appeals held that expert testimony about battered woman’s syndrome and evidence of abuse would be allowed at trial in Michigan. This ruling does not constitute a special defense; and in practice, evidence of battered woman’s syndrome has proven to present a dilemma for women defendants. First identified by Dr. Lenore Walker, a forensic psychologist, in her 1979 book, The Battered Woman, the syndrome refers to characteristics that appear in women who have been physically and psychologically abused by their partners. Walker described a pattern of cyclical abuse consisting of three recurrent phases: 1) a tension building stage, characterized by minor abuse; 2) an acute battering stage, characterized by uncontrolled explosions of brutal violence; and 3) a loving, respite stage, characterized by the batterer’s calm behavior and pleas for forgiveness. The cycle is said to result in a state of learned helplessness by the battered woman. This theory has been criticized by feminist scholars as problematic for a woman’s defense because it tends to pathologize women, does not adequately represent the experiences of women of color, and excludes those who perform competently in other areas of their lives. The notion of a “syndrome” also leads judges and jurors to focus on whether a particular defendant suffers from the syndrome rather than whether she acted in self-defense. Evidence of battering is relevant under both an objective and a subjective standard of self-defense, and any evidence of battering should be considered sufficient for a judge to give full instructions on self-defense to a jury.
Recommendations Toward Solutions
Violence against women is facilitated by gender and race-based inequalities in our social and political systems. These structures link domestic violence to imprisonment through gendered modes of law enforcement and punishment. The Michigan Battered Women’s Clemency Project is committed to justice and human rights for women, and makes the following specific recommendations:
1. We recommend the immediate release of all incarcerated women who acted in self-defense against an abuser, either through clemency/commutation for those serving life sentences or paroles for those sentenced to terms of years. This includes women convicted of crimes committed by their abusers, women convicted of crimes against their abusers, and women convicted of crimes precipitated by an abuser.
2. We recommend that the Michigan legislature pass a Habeas law, such as is the case in California, establishing a special panel of domestic violence professionals to review for parole all cases submitted by women prisoners whose crimes are directly linked to violence by their intimate partners.
3. We recommend that the State of Michigan alter the sentencing guidelines to mitigate the sentences of battered women defendants and battered transgender defendants. Responsibility for a crime cannot merely be judged by the crime itself; consideration must be given to the history of any abuse the party experienced, self-protection strategies used by the survivor, and responses or lack thereof by police, legal systems, health care systems, etc. Without the full exploration of the history of abuse, the state commits further violence against women and transgender people and exploits the gender and racial inequalities that disproportionately affect women and transgender people.
4. We recommend that the marginalization and exploitation by persons and institutions with power, including the criminal-legal system and parole system, be ended. We recognize that power is not distributed equally in society and that women, people of color and transgender people, poor people, queer people, people with disabilities and mental disorders, immigrants and members of many other communities are continuously marginalized and exploited by persons and institutions with power, including the criminal-legal system and parole system.
5. We recommend that mandatory education and testing programs on domestic violence beyond those already in existence should be instituted for all government law enforcement and court officers, including all police, prosecutors, judges, members of the parole board and correctional personnel.
6. We recommend that the State of Michigan adopt preferred arrest policies (allow police officers to make judgment calls and are preferable to mandatory arrest policies which result in too many wrongful arrests of women) and mandatory education programs be enforced by all law enforcement agencies and courts for first-time and repeat batterer-offenders.
7. We recommend that the Michigan Judges’ Association recommend that prosecutors review cases for reduced pleas and release of battered women who have served sentences for the deaths of abusers.
8. We recommend that Michigan Judges’ Association require proper instructions to juries in cases involving battered women defendants that explain self-defense law in ways that are inclusive rather than exclusive of women’s experience, including, but not limited to, what a reasonable person would do in the context of ongoing torture and terror from an abuser; that the meaning of imminent may not be immediate, but is nevertheless imminent threat to a battered woman who must protect her own life; that subjective knowledge of imminent danger is sufficient reason for acting in one’s own defense.
9. We recommend that the Michigan Department of Corrections immediately end the practice of torture, including, but not limited to, 4 point chaining and use of 4 point restraints; sexual molestation, harassment, assault and rape committed by employees of MDOC against incarcerated people; isolated segregation of inmates; medical abuse and neglect; and all other forms of torture, harassment and mistreatment, especially of the mentally ill.
10. We envision a world without prisons where educational, health and social service institutional supports are available to all and a continuum of compassionate and humane alternatives to incarceration are offered, especially to the mentally ill.
Sara Bennett, Amnesty International, Amnesty International Launches Global Campaign To Stop Violence Against Women (2004), http://www.amnesty.ie/content/view/full/1699.
Patricia Tjaden and Nancy Thoennes, “Extent, Nature, and Consequences of Intimate Partner Violence,” National Institute of Justice and Center for Disease Control, July 2000, iii, http://www.ncjrs.gov/pdffiles1/nij/181867.pdf
Angela Browne, When Battered Women Kill (NY: The Free Press, 1987) 10-11.
Sarah Geraghty, Clemency for Battered Women in Michigan: A Manual for Attorneys, Law Students and Social Workers (Ann Arbor: ACLU Michigan Battered Women’s Clemency Project, 1998) 1.
Callie Marie Rennison, U.S. Department of Justice, Bureau of Justice Statistics, Intimate Partner Violence, 1993-2001 (2003) 2.
See Carol Jacobsen, Kammy Mizga, Lynn D’Orio, “Battered Women, Homicide Convictions and Sentencing: The Case for Clemency,” Hastings Women’s Law Journal, Vol. 18, No. 1.
Amnesty International, “Not Part of My Sentence: Violations of the Human Rights of Women in Custody (1999).
Sarah M. Buel, “Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct,” Harvard Women’s Law Journal 26, 2003, 217-218.
National Clearinghouse for the Defense of Battered Women, Addressing a National Issue: Justice for Women Who Fight Back: Some Thoughts and Questions (1999) 3.
Allison Madden, “Clemency for Battered Women Who Kill Their Abusers: Finding a Just Forum,” Hastings Women’s Law Journal 1, (1993) 34-35.
Cynthia Gillespie, Justifiab le Homicide: Battered Women, Self-Defense, and the Law (Columbus: Ohio State University Press, 1989) 22.
Sue Osthoff, Making a Difference: Advocating Effectively for Women Who Kill, PCADV Newsletter (Pa. Coalition Against Domestic Violence, Harrisburg, Pa.) May 1990, 2.
Elizabeth Schneider, Battered Women & Feminist Lawmaking (New Haven: Yale University Press, 2000) 145, 277 at note 108.
See Holly Maguigan, “Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals,” University of Pennsylvania Law Revew, 1991.
Maguigan, 383, 439-442.
Browne, 113-122. See also, Patricia Gagne, Battered Women’s Justice: The movement for Clemency and the Politics of Self-Defense 23-29 (Twayne Publishers 1998).
Dorothy Q. Thomas and Michele E. Beasley, “Domestic Violence as a Human Rights Issue,” 58 Albany Law Review 119, 120 (1995). For “coercive control,” see Evan Stark, “Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control,” 58 Albany Law Review 973, 975-976 (1995).
Martha Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation,” 90 Michigan Law Review 1, 2 (1990).
Schneider 121-122.
Gillespie, 93-156.
Schneider 83.
Madden 32.
Id.
Madden 98.
People v. Geraldine Wilson, 487 N.W.2d 822, 825 (Mich. Ct. App. 1992).
Lenore Walker, The Battered Woman (Harper & Row 1979), xv, 31-35, 56-70, 45-51.
Sharon Allard, Rethinking the Battered Woman Syndrome: A Black Feminist Perspective, 1 UCLA Women’s Law Journal 191, 192, 206 (1991)
Mary Ann Dutton, The Validity of ‘Battered Woman Syndrome’ in Criminal Cases Involving Battered Women 17-19 (Malcolm Gordon ed.) in U.S. Department of Justice, The Validity and Use of Evidence C