«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»
self-defense must permit him to act earlier – as early as is required to defend himself effectively.’ 140 This approach appears to incline itself towards a test of ‘inevitability of harm’ and the right to take defensive action in such circumstances. This has been the approach presented by Ripstein who argues that courts will have to consider ‘unavoidable harm’ rather than imminence if they wish to ensure that accused persons are treated justly by the legal process. 141 It should also be borne in mind that in many instances, the accused would have killed her abusive partner while he slept because she knew that in any other scenario she would not be able to effectively stop him. This is reasonably understandable as the fact that the abuser was asleep at the time often compensates for the disparity in size and physical strength between the abuser and his victim. Rosen also argues that the ‘imminence of harm’ rule as it is applied by some courts is extremely unfair to the accused and she advocates a complete rejection of the imminence rule.
Consequently, Rosen suggests a test of necessity, rather than imminence understood in the simplistic temporal fashion, when evaluating the defensive act.
In explaining her approach she makes it clear that imminence of the threat of harm is not irrelevant, ‘but it should not be allowed to take on a life of its own and become the defining element in battered women (or other) self-defense cases.’ 142 Above n5 at 78.
A Ripstein ‘Self-Defense and Equal Protection’ 1996 57 University of Pittsburgh Law Review 685, at 698-704. Ripstein suggests that the inevitability/unavoidability rule is superior to the imminence rule because it expresses the real purpose of the self-defence theory.: at 704.
RA Rosen ‘On Self-Defense, Imminence, and Women who Kill Their Batterers’ 1993 71 North Carolina Law Review 371, at 375-6; see also above n141 at 691. According to Rosen, the test for self-defence should consider the ‘necessity’ of the defendant’s actions. As she explains it, ‘necessity’ is not a temporal concept – but rather relies on the notions of inevitability or unavoidability. Under a ‘necessity’ rule, the test would be ‘whether the accused had any choice but to act as she did in order to avoid grave risk of death or serious injury by her husband’.: at 376.
He argues that imminence of impending harm is really a ‘translator’ for necessity, and when imminence and necessity conflict, necessity must prevail.: at 387. (It must be acknowledged that the necessity rule proposed by Rosen must not be confused with the current separate defence of necessity – this is not her intention.: at 376.) Ogle and Jacobs comment that the approach of Rosen also reflected in the Model Penal Code section 3.04 which makes it clear that necessity is a critically important element in determining self-defense on a given occasion.: Ogle and Jacobs
above n16 at 128. Further in this regard Ogle and Jacobs note:
[W]e must recognise that there are cases in which the threat of harm is reasonably perceived and it is necessary to forcefully prevent it – or it will not be preventable. The mechanism for allowing self-defense to operate and to be considered by the jury in these Specifically noting his support for the recommendations of both Ripstein and Rosen, Sebok clarifies the point noting that implicit in such an approach is the fact that the onus will always be on the defendant to satisfy the court that the probability of future occurrence of the events indicated by the facts proffered are very high. 143 Veinreideris, however, takes a different view and comments that ‘replacing imminence with necessity [as suggested by Rosen] is logically unsound, and would not achieve the desired result because the harm of homicide would be greater than the harm avoided in most cases.’ 144 Other antagonists of the Rosen/Ripstein formulation are of the opinion that the abolition or even a relaxation of the rule of imminence will create an open season for vindictive homicides and self-help. 145 Eber, however, counters with the view that these women only kill their partners ‘because they realize that there is no other way to end the abuse. Battered women are not likely to kill motivated by the assumption that they will be able to get away with it.’ 146 The argument that abused women kill under circumstances of desperation is borne out by the study conducted by Browne, Williams and Dutton on homicides in the U.S.A. during the periods 1976more difficult cases is to employ the concept of necessity. That is, we should not simply ask: Was the harm imminent? We should ask instead: Was it necessary to employ the force used in order to protect against the threat of harm? If it was necessary, self-defense may be considered.: Ogle and Jacobs above n16 at 129.
AJ Sebok ‘Does An Objective Theory of Self-Defense Demand Too Much?’ 1996 57 University of Pittsburgh Law Review 725, at 753. Angel also supports this approach noting that for the abused woman ‘time is elongated.’: M Angel ‘Why Judy Norman Acted in Reasonable Self-Defense: An Abused Woman and a Sleeping Man’ 2008 16 Buffalo Women’s Law Journal [forthcoming] or http://ssrn.com/abstract=1078007 9 [accessed 30/06/08]. Angel continues to note that with abused women it is fear and not anger that is their primary emotion, a fear which continues to increase as the woman realizes that escape is impossible.: Angel n143 at 19. Thus,
The action of the abused woman who kills when her abuser is asleep or otherwise incapacitated can be justified as an immediately necessary response “on the present occasion” if she acted in self-defense with reasonable fear of a future attack, which she cannot escape and which she does not have the strength to repel.: Angel n145 at 23.
Above n18 at 623.
In Wang, however, the Court of Appeals expressed the view that to allow women who killed their partners in situations of non-confrontation to rely on self-defence would be to return to the law of the jungle:  2 NZLR 529.
LP Eber ‘The Battered Wife’s Dilemma: To Kill or be Killed?’ 1981 32 Hastings Law Journal 895, at 930. Schulhofer also suggests that the ‘traditional insistence on a literally “imminent” infliction of great bodily harm must be abandoned outright’ if one adopts the enquiry of necessity of harm rather than ‘imminence per se.’: SJ Schulhofer ‘The Gender Question in Criminal Law’ 1990 7 Social Philosophy and Politics 105, at 127.
1984 and 1980-1995. 147 Their findings were that female on male homicides were markedly lower in those states where resources such as shelters, crisis lines, and domestic violence legislation were in place. 148 This downward trend continued during the second study leading them to the conclusion that ‘legal and extralegal resources for battered women had provided women facing violence and threats with a greater variety of alternatives, thus preventing them from resorting to lethal defensive action.’ 149 Wallace’s proposal for defining imminence is based on a comparison between the traditional individual self-defence law and the international law of selfdefence. 150 In terms of the international law of self-defence, the three factors (beyond temporality) that have been articulated as defining imminence are probability, availability of alternative recourses, and magnitude of harm. 151 In providing an interpretation of probability, Yoo notes that it will include ‘the likelihood that this probability will increase, and therefore the need to take advantage of a limited window of opportunity.’ 152 Thus, Wallace notes, in considering probability one must have regard to … the intuitive point of probability, which entails some assessment of risk based on past behaviour. Past experience helps the threatened party to determine more accurately whether a threat is presented. Second, in accordance with common sense, if the threat is imminent in the sense of being permanent, the threatened party should be allowed to act when A Browne, KR Williams and DG Dutton ‘Homicide Between Intimate Partners’ in MD Smith and MA Zahn (eds) Studying and Preventing Homicide (Sage Publications, London: 1999) 59.
Above n147 at 64.
Above n147 at 74.
S Wallace ‘Beyond Imminence: Evolving International Law and Battered Women’s Right to Self-Defense’ 2004 71 The University of Chicago Law Review 1749, at 1749-1781.
See The National Security Strategy of the United States of America 25 (2002), online at http://www.whitehouse.gov/nsc/nss.pdf (accessed on 08-23-2004) where it is stated: ‘We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. … To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.’ See also above n150 at 1751 and at fn12.
J Yoo ‘International Law and the War in Iraq’ 2003 97 American Journal of International Law 563, at 574.
presented with a “window of opportunity,” rather than allowing the aggressor to choose the exact time and manner of confrontation. 153 5.2.3 Conditions Relating to the Defence
In explaining this condition LaFave notes that at the outset it should be noted that the condition is not simply that the defender must have had a reasonable belief that force was necessary but also that the defender subjectively had an actual belief in the need for force against her attacker. 154 Thus, in applying this requirement, he writes that the first consideration is the subjective enquiry for the court to assess the subjective belief of the accused in the necessity for force. 155 The second deliberation which follows is then the objective enquiry during which the jury must decide whether the defendant’s belief in the necessity of using force to prevent harm to herself was a reasonable one. 156 These are not two distinct enquiries and will often take place simultaneously. Thus, in explaining the
condition the Court of Criminal Appeals, Oklahoma in Bechtel stated:
The bare belief that one is about to suffer death or great personal injury will not, in itself, justify taking the life of his adversary. There must exist reasonable grounds for such belief at the time of the killing. Further, the right to take another’s life in self-defense is not to be tested by the Above n150 at 1771. In including the proposals of Wallace, the writer is cognisant that there may be different factors and interests at play in respect of international law and the domestic laws of self-defence. There is also an argument to be made that Wallace’s proposals could lead to a situation of anarchy and remove all responsibility from the battered woman to find alternative options. Nevertheless, it is suggested that the principle recorded by Wallace remains apposite especially where the evidence demonstrates an inevitability of the harm materialising. The courts must, however, take cognisance of all the factors characterising the relationship and the reasonableness of the timing of the accused’s lethal act.
LaFave above n17 at 542.
In evaluating the requirement of necessity specifically the court in Stewart confirmed this approach, stressing the subjective nature of the assessment and noting expressly that the decision to be made was whether the defendant subjectively sincerely and honestly believed in the necessity to kill in self-defence.: Stewart above n62 at 573.
LaFave above n17 at 542.
honesty or good faith of the defender’s belief in the necessity of the killing, but by the fact whether he had reasonable grounds for such belief. 157 However, acknowledging the objective component of the test, the Maryland
Appeal Court in Katsenelenbogen v Katsenelenbogen emphasised:
The objective standard does not require the jury to ignore the defendant’s perception in determining the reasonableness of his or her conduct. … [T]he facts or circumstances must be taken as perceived by the defendant … so long as a reasonable person in the defendant’s position could also reasonably perceive the facts or circumstances in that way. 158 Similarly, in looking at the issue of whether the force was necessary, the Wisconsin Appeal Court in Fischer clearly stated what has been generally applied as a rule namely, that the test is not whether the jury believed that the force used was necessary in self-defence but whether the jury believed that the accused acting as a reasonable person had this belief. 159 Accordingly, the court held that ‘[t]he court’s instruction [on self-defence] can stand only if it included the essential element that the person using the force need only reasonably believe, in light of all the facts and circumstances known to him, that he or another person was in danger.’ 160 This approach was confirmed by the Kansas Supreme Court in Hodges where the court held that ‘the jury must determine, from the viewpoint of the defendant’s mental state, whether the defendant’s belief in the need to defend herself, was reasonable.’ 161 In Leidholm the court accepted the following test to determine whether the
defence was necessary:
A defendant’s conduct is not to be judged by what a reasonably cautious person might or might not do or consider necessary to do under the like Bechtel above n61 at 6.
Katsenelenbogen v Katsenelenbogen 775 A.2d 1249, 1259 (Md. 2001).
Fischer 598 P.2d 742 (Wn.App.1979).
Above n159 at 744.
Hodges above n132.
circumstances, but what he himself in good faith honestly believed and had reasonable ground to believe was necessary for him to do to protect himself from apprehended death or great bodily injury. 162 In so setting out the test, the court stressed the significance of differentiating between the circumstances as perceived by the ‘defendant alone’ and the alternative approach of viewing the accused’s conduct from the standpoint of the ‘reasonably cautious person’. According to the court, the inherent value of the former appraisal is that it specifically allowed the jury to focus on the ‘reasonableness of the accused’s actions against the accused’s subjective impressions of the need to use force’ rather than directing itself to a consideration of what it perceived to be appropriate from a hypothetical reasonably cautious person under similar circumstances. 163
Thus, Vande Walle J concluded: