The Battered Woman Syndrome: Self-Defence and Duress as Mandatory Defences?

Margolin Gayla , “Wife Battering”, in Handbook of Family Violence. Van Hasselt Vincent B. , eds. (1988) p.93.

Walker Lenore E.A. , The Battered Woman [Hereafter The Battered Woman] (1979).

Id.

Battered Women, p.56–59.

Battered Women, p.59–65.

Battered Women, p.65–70.

Walker Lenore E.A. , “Battered Women Syndrome and Self-Defence”, 6 Notre Dame J.L. Ethics & Pub. Pol'y 321 (1992).

See Diagnostic and Statistical Manual of Mental Disorders (DSMIII-R) (3rd edn. rev. 1987) Section 309.89, p.247–251 and People v. Aris (1989) 215 Cal. App. 1178.

Contrary to popular belief, not all battered spouses kill their abusive partners when they are asleep. See, Maguigan Holly , “Battered Women and Self-Defence: Myths and Misconceptions in Current Reform Proposals,” 14 U. PA. L. Rev. 379 (1992) where 223 cases of battered women who killed their partners were analyzed. Of the 223 incidents, 75 per cent involved confrontation, 20 per cent were nonconfrontational cases, 8 per cent were “sleeping” cases, 8 per cent involved the defendant as the initial aggressor during a lull in the violence, the remaining 5 per cent were unknown since the court opinions did not discuss the incident facts.

Lafave W.R. Scott A.W. JR. , Criminal Law, 2nd edn. (1984) s.5.4, 5.8–5.10 [hereafter referred to as Lafave & Scott].

2 Robinson Paul H. , Crim. Law Defences s.131 (b)(3) n.27.

United States v. Nolan, 700 F. 2d 479 (9th Cir. 1983).

Lafave Scott s.5.7, p.459–460.

Model Penal Code and Commentaries s.3.04 is an example of a statute authorizing employment of nondeadly force against attackers who use nondeadly force.

For an early case authorizing the use of deadly force, see Beard v. United States, 158 U.S. 550 (1895).

See, Beale Joseph H. Jr. , “Retreat from a Murderous Assault,” 16 Harv. L. Rev. 567 (1903).

Lafave Scott , s.5.7(f) p.460.

See Allen v. United States , 164 U.S. 492, 498 (1896) where the United States Supreme Court held a person does not have to retreat in their home before using deadly force, but must do so in all other cases.

Lafave Scott , s.5.7(F) p.460 n.4.

Perkins Boyce , Criminal Law, 3rd edn. (1982) p.1128 [hereafter referred to as Perkins & Boyce].

Lafave Scott , s.5.3.

Perkins Boyce , p. 1059.

Fletcher , “The Right and the Reasonable,” 98 Harv. L. Rev. 949, 954–955 (1985).

See, Fingarette , “Victimization: A Legalist Analysis of Coercion, Deception, Undue Influence, and Excusable Prison Escape,” 42 Wash. & Lee L. Rev. 65 (1985).

Lafave Scott s.5.3, p.433.

See Ross v. State, 169 Ind. 388, 390, 82 N.E. 781, 781 (1907).

Perkins Boyce , p. 1061–1062.

People v. Luther , 394 Mich. 619, 623, 232 N.W. 2d 185, 187 (1975).

See and compare State v. Kelly 97 N.J. 178, 478 A.2d 364 (1984) which allowed expert testimony regarding the battered women syndrome and her subjective state of mind as it relates to self-defence, and People v. Aris, 215 Cal. App. 3d 1178 (1989) which allowed evidence of the battered women syndrome, but still utilized the reasonable person standard of self-defence.

See, Fultz v. State 439 N.E. 2d 659, 663 (Ind. Ct. App. 1982); State v. Walker, 700 P2d 1168, 1173 (Wash. Ct. App. 1985); State v. Norman 378 S.E.2d8, 13–14 (N.C. 1989); State v. Torres, 393 S.E.2d 535, 539–40 (N.C. Ct. App. 1990); State v. Anderson 785 S.W.2d 596, 599–60 (Mo. Ct. App. 1990).

Nodland Irvin B. , “Defending Battered Women: Everything She Says May be Used Against Them”, 68 N.D.L. Rev. 131 (1992).

Bechtel v. State 840 P.2d 1 (Okl. Cr. 1992).

Id. p.7–8.