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«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»

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[A] correct statement of the law of self-defense is one in which the court directs the jury to assume the physical and psychological properties peculiar to the accused, viz, to place itself as best as it can in the shoes of the accused, and then decide whether or not the particular circumstances surrounding the accused at the time he used force were sufficient to create in his mind a sincere and reasonable belief that the use of force was necessary to protect himself from imminent and unlawful harm. 164 However, in Nunn the Iowa Court of Appeal refused to accept that a battered woman accused of killing her live-in boyfriend had a reasonable belief in the necessity to use force against him. 165 In casu, the court relied on the facts that firstly, the altercation between the parties had ended several minutes before the accused had fatally stabbed the deceased and secondly, the accused had acted Above n2 at 818.



Nunn 356 N.W.2d 601 (Iowa Ct.App. 1984).

at a time when the deceased was unarmed. 166 The court found that there was no need at the time for the accused to have used such force as she did and that the accused’s alleged fear of life-threatening danger was not justified in the circumstances. 167 The court reached this conclusion despite hearing evidence of a violent relationship between the accused and the deceased and the deceased’s threat to kill the accused made earlier on the day of the murder. 168 In Wanrow, relying on the modified requirement that the reasonable person be placed in the circumstances of the accused, counsel for the accused successfully argued that the test for self-defence required the jury to consider the actions of the accused by seeing what she saw and knowing what she knew. 169 The Washington Superior Court accepted the argument instructing the jury that the standard for determining reasonableness that was required was that it place itself squarely in the position of the defender, taking into account all the circumstances as known to the accused at the time, including ‘those known substantially before the killing.’170 Above n165 at 604.

Above n165 at 608.

See also White 414 N.E.2d 196 (Ill.App.Ct. 1980) where the facts were that in the past, the deceased had viciously assaulted the accused, even to the extent of breaking her elbow, dislocating her elbow (on a separate occasion), leaving her with fractured ribs, cutting her face with a broken bottle and hitting her on the head with a motor vehicle jack. On the day of the killing, the deceased had threatened the accused with another beating.: at 198. The accused went to the bedroom and armed herself with a gun. When she saw the deceased coming toward her ‘walking fast’, she shot him.: at 198. The jury decided that the accused’s belief that deadly force was necessary to prevent harm or injury was not reasonable.: at 199. Compare these decisions with the judgment of the Supreme Court of Virginia in McGhee where it was held that a reasonable fear assessed from the perspective of the accused would suffice to satisfy the condition.: McGhee 248 S.E.2d 808, 810 (Va. 1978). It must be noted that the McGhee decision does appear to be an exception to the generally applied interpretation of the condition. This view is supported by Heller who, in making an analysis of the subsequent case law on the subject, confirms that this approach has not been followed and was, in fact, rejected by later courts.: KJ Heller ‘Beyond the Reasonable Man? A Sympathetic but Critical Assessment of the Use of Reasonableness in SelfDefense and Provocation Cases’ 1998 26 American Journal of Criminal Law 1. For example she cites the subsequent case of Goetz where the New York Supreme Court stated explicitly that the test for reasonableness of belief was an objective standard applied in the circumstances confronting the defendant. Accordingly the Court of Appeal found that the court a quo had erred

in describing the standard as merely requiring that the defendant’s belief be reasonable to him.:

above n40 at 29-30.

Above n45.

Above n45 at 555. See also Stewart above n62 at 579.

In Leidholm the North Dakota Supreme Court stated that, in determining reasonableness, the jury may consider the knowledge and physical attributes of the accused, as well as the psychological effects of abuse. It was not sufficient to consider the physical circumstances of the accused. The courts were required to extend their assessment to her unique psychological characteristics, as well. 171 In specifically explaining the requirement that force must have been necessary, Buel argues that it may be restated as ‘Did the actor have no other viable options?’ 172 She notes that for the purpose of completeness, in addressing this issue courts should also take note of prior help-seeking activities of the accused.

Buel concludes that in many cases, the repeated failure to secure assistance and the knowledge that she cannot leave, makes killing the abuser her only option – and a reasonable one, at that. 173 It is clear from the above that that the courts are prepared to take cognisance of the circumstances relating to the particular defendant that are relevant to the particular case. 174 Some courts have even opted to use a more customised test for reasonableness namely, the test of the reasonable battered woman. 175 Such a standard was applied in the case of Cynthia Hutto. Hutto shot and killed her sleeping husband. Her counsel argued that she had acted in self-defence. The evidence revealed that earlier that evening the couple had been arguing and the deceased had picked up a shotgun, pointed it at his wife and said, ‘Either I’m going to kill you or you’re going to kill me.’ He handed her the gun and left the room. Later, as he lay sleeping, the accused took the gun, levelled it at him and shot him. The evidence of witnesses was that the accused had been battered by her husband through the duration of their five year marriage. Counsel for the accused argued that the court was required to instruct the jury not to consider the accused’s conduct in light of the traditional reasonable person standard but they should determine whether her conduct was justified in light of their perception of Above n2 at 818.

Buel above n22 at 302.

Buel above n22 at 235.

LaFave above n17at 542.

See Hutto (unreported) in SD Rittenmeyer ‘Of Battered Wives, Self-Defense and Double Standards of Justice’ 1981 9 Journal of Criminal Justice 389; Hundley above n61; Stonehouse 555 A.2d 772 (Pa.1989); above n33; and Burtzlaff 493 N.W.2d 1 (S.D.1992).

how a ‘reasonable battered wife’ would have reacted in similar circumstances.

This argument was accepted and Hutto was acquitted on the charge of murder. 176 However, the writer favours the test which judges the conduct of the accused against the standard of the reasonable person in the position and circumstances of the accused to that of the woman’s conduct being judged according to the norm of the reasonable battered woman. 177 The argument against the latter standard is that it tends to stereotype women who are victims of abuse. Thus, women who present themselves differently from the stereotype, despite being battered, are refused the right of a fair hearing. 178 An enquiry often linked to the requirement that the accused should have reasonably believed that the force was necessary is whether the accused could not – and should not - have retreated before resorting to lethal self-defence.

Regarding the duty to retreat from an attack, LaFave notes that there is a strong movement in the U.S.A. against the unnecessary taking of human life. On the other hand, there is also a general policy view against making one act in a See Rittenmeyer above n175 at 389 where the author refers to a personal communication with Dale Cobb – the attorney for Hutto – in 1980. Clearly, this standard as applied by the court assisted Hutto in avoiding the pitfalls of the imminence requirement.

However, Angel cautions that whilst the ‘reasonable man’ may have been replaced by the ‘reasonable person’, that person continues to function and be judged within the legal doctrines conceived by men and interpreted to fit the facts of men’s lives: Angel above n143 at 1. Similarly, Ogle and Jacobs express the view that ‘[i]n these more enlightened and politically correct days, one might be

inclined to say “reasonable person” standard [but] the law typically does not.’:

Ogle and Jacobs above n16 at 107.

See Chapter Three. See also J Bosworth ‘The Trouble with Battered Women’s Syndrome’ 1996 11 Adelphia Law Journal 63 and DL Faigman and F Wright ‘The Battered Woman Syndrome in the Age of Science’ 1997 39 Arizona Law Review 67. Hempill, however, takes a slightly different view and whilst agreeing that the conduct of the woman must be seen as justifiable within her milieu, she urges that the comparator standard be that of a ‘reasonable woman’ in the circumstances of the accused’.: AL Hempill ‘Spousal Murder: A Look at Available defences and their Application from a Feminist Perspective’ 1998 46 Chitty’s Law Journal and Family Law Review 1, at 5. The writer also disagrees with this approach as the normative yardstick as it, too, seeks to establish a separate benchmark.

cowardly and humiliating role. 179 It would thus appear that States differ on whether one faced with a deadly assault should be obliged to flee if it is safe to do so rather than resort to deadly force in self-defence. 180 However, in summing

up the position LaFave notes:

The majority of American jurisdictions holds that the defender … need not retreat, even though he can safely do so, before using deadly force upon an assailant whom he reasonably believes will kill him or do him serious bodily harm. A strong minority, however, … holds that he must retreat … before using deadly force, if he can do so in safety.’ 181 LaFave notes further in this regard that an aspect of the rule that is unanimous is that a defender who may safely do so, is not required to retreat from his home or place of business before using deadly force. However, an exception to this rule is made when the attacker and defender are co-occupants of those premises. 182 Thus, in Bobbitt where the evidence was that the accused had shot and killed her husband in their home after he attacked her, the Florida Supreme Court refused to accept that she had acted in self-defence. The court held that the castle doctrine did not apply where both the defendant and the victim were the legal occupants of the same house and had equal rights to be there. 183 In that situation, a victim’s duty to retreat remained intact. 184 In Weiand the Florida Supreme Court had to decide on this issue. 185 The accused was a woman described by the expert witness as one who showed all the signs of battered woman syndrome. According to the expert the accused believed that her LaFave above n17 at 547.

LaFave above n17 at 539.

LaFave above n17 at 547.

LaFave above n17 at 548. The rule that one is not expected to retreat from an attack in one’s own home is based on the time-honoured rule that ‘one’s home is one’s castle’, in other words, it is the ultimate sanctuary. Taking into account the fact that the defender has a real interest in the premises and that the attacker is an intruder, this rule makes absolute sense when dealing with an attack between ‘strangers’. However, the application of the rule becomes more complicated when one is dealing with cohabitees. In such cases, recognising that both parties have equal vested right and interest in the property, the law has limited the right and imposed in many cases a duty on the attacked party to retreat from the home before committing a deadly assault.: LaFave above n17 at 548.

Bobbitt 415 So.2d 724, 724-5 (Fla.1982).

Above n183 at 725.

Weiand 732 So.2d 1044 (Fla.1999).

husband would eventually kill her. The accused shot and killed the deceased during a violent argument because, she testified, she believed that she had no

other alternative. 186 In instructing the jury, the trial court stated:

The fact that the defendant was wrongfully attacked cannot justify her use of force likely to cause death or great bodily harm if by retreating she could have avoided the need to use that force. 187 The accused was convicted and sentenced to eighteen years in prison. Florida’s Second District Court of Appeal confirmed the decision. 188 However, the Florida Supreme Court, declaring the issue to be of great public importance, found as follows and, accordingly, directed that the case be re-argued: 189 Firstly, the Bobbitt decision did not give sufficient emphasis to the sanctity of human life: Rather, it was predicated upon the sanctity of property and the rights of possession. 190 Secondly, since the decision in the Bobbitt case, public policy had evolved and there was a concerted focus on reducing domestic violence. The court found that spousal abuse was a legislated crime in all fifty states in America and executive agencies had even been established, countrywide, with the specific function of counselling and advising victims affected by domestic abuse. 191 Thirdly, the state had succumbed to the myth that women in abusive relationships can leave whenever they wanted to and in Weiand’s case specifically, the prosecution argued that the accused could have left the house or got into her car before picking up a gun. The Supreme Court held that to permit a jury instruction that suggested retreat as an option for battered women, totally undermined the research and expert evidence. The Supreme Court went on to recognise the various studies that demonstrated the increased risk of harm resulting from attempts by the abused victim to leave the abusive relationship and concluded Above n185 at 1048.


Weiand 701 So.2d 262 (Fla.2d.D.C.A.1997).

Above n185.

Above n185 at 1056 Ibid.

that by forcing women to leave, one could actually be increasing the risk of harm and not minimising it. 192 Fourthly, placing upon cohabitees a duty to retreat would have a definite adverse impact on victims of intimate violence (who often have nowhere else to go).

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