Professional Documents
Culture Documents
No Ground On Which To Stand
No Ground On Which To Stand
Volume 30 | Issue 1
Article 5
2015
JACKSON
2/12/2015 5:16 PM
The author will receive a law degree from the University of California, Berkeley, School of
Law (Boalt Hall) in 2015. As a law student, the author took the Domestic Violence Law
course and participated in the Domestic Violence Practicum at Berkeley Law. She spent a
summer at The Law Foundation of Silicon Valley, where she provided legal assistance to
underserved minority populations. She spent the following summer at the Santa Clara
County Alternate Defenders Office, where she served clients who were adversely affected
by domestic violence, gender biases, and the severely imbalanced criminal justice system.
She is grateful to Nancy Lemon, John and Elizabeth Boalt Lecturer, whose Domestic
Violence seminar provided the impetus for this piece, and who provided valuable feedback
and suggestions. She is also grateful to editorial team of the Berkeley Journal of Gender,
Law & Justice for excellent editorial assistance.
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155
partnership decides to end the relationship, there may come a point when the
abuser attacks her with enough force to threaten her life, forcing her to use
deadly force to protect herself. When this happens, Stand Your Ground laws are
often implicated both in prosecutorial decisions and in legal defenses. Such laws
can be important tools for women to assert self-defense successfully. Some
might argue that such justifiable killing is adequately covered under basic selfdefense principles, and hence, there is no need for further privilege to stand ones
ground. However, certain affirmative stand your ground laws can provide
protection from prosecution so the defendant is not vulnerable to the fact finders
analysis of whether the lethal response was reasonable under the
circumstances. Both judges and jurors analyze objective reasonableness
through biased lenses. These biases include male normativity, stereotypes, myths
about domestic abuse, and the tendency to blame the victim. Such biases
disadvantage women, and, in particular, survivors of domestic abuse. It is time to
revise Stand Your Ground laws with this vulnerable population in mind. The
most just way for this law to operate is to grant immunity from criminal
prosecution for those who defend themselves in their home against abusive
cohabitants, and to develop a statutory presumption of fear in a defendant who
has endured a history of domestic abuse.
INTRODUCTION .................................................................................................. 156
I. BACKGROUND ON THE RIGHT TO STAND YOUR GROUND, AND
THEORIES FOR WHY WOMEN IN ABUSIVE RELATIONSHIPS DO JUST
THAT ...................................................................................................... 160
A. American Law Births the Self-Defense Doctrine, Creates the
Duty to Retreat Exception, and Limits This with the Castle
Doctrine ........................................................................................ 160
B. Expansion of the Right to Stand Your Ground: Beyond the
Home, the Presumption of Fear, and Prosecutorial Immunity ....... 161
C. Battered Womans Syndrome and Survivor Theory:
Competing Frameworks for Understanding Domestic Violence
and Why Women in an Abusive Relationships May Not Retreat .. 162
D. Why Doesnt She Just Leave? (Separation Assault and the
Lack of Resources)......................................................................... 165
II. HOW STAND YOUR GROUND LAWS AFFECT SURVIVORS OF DOMESTIC
VIOLENCE WHO KILL THEIR ABUSERS AS THE ONLY MEANS FOR
PROTECTING THEIR LIVES ..................................................................... 168
A. The Application of Stand Your Ground Laws to Women Who
Defend Against an Attack from a Cohabitant ................................ 168
B. Do Affirmative Stand Your Ground Laws Effectively Shield
Survivors of Domestic Violence from Unjustified Prosecution? ... 171
C. If Prosecuted, Fact Finders Implicit Gender Biases Deprive
Battered Defendants of Equal Treatment Under the Law .............. 173
D. Fact Finders Victim-Blaming Mentality Grossly Distorts Their
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INTRODUCTION
A few years ago, a young woman named Natasha shot and killed her
boyfriend in the apartment they were sharing.1 He had trapped her in the
bedroom and was about to launch into another of what had become weekly
beatdowns, where he would hit her with a closed fist.2 Prior to the killing, the
beatings had become more severe and more frequent, as were the threats that he
was going to kill her.3 As to whether there were other options available to her to
escape, Natasha said, At the time I pulled the trigger, I didnt think so. Hed
cornered me in a small bedroom with no way out except maybe jumping out a
glass window or simply undergoing yet another beatdown. He was fond of
beating me, then forcing me to perform oral sex on him right away. If my lips
were bloody, hed force himself into my rectum.4 Natasha was charged with
second-degree murder and criminal possession of a firearm (which belonged to
her boyfriend).5 She was convicted of manslaughter and sentenced to fifteen
years in prison.6
In February 2012, George Zimmerman, a resident of a gated community
and a neighborhood watch volunteer, called 911 to report a young teen (later
1.
2.
3.
4.
5.
6.
Sadhbh Walshe, The Double Imprisonment of Battered Women, THE GUARDIAN (Mar. 21,
2012,
6:30
PM)
http://www.theguardian.com/commentisfree/cifamerica/2012/mar/21/double-imprisonmentbattered-women.
Id.
Id.
Id.
Id.
Id.
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157
9.
10.
11.
12.
13.
14.
15.
16.
17.
Trayvon Martin Shooting Fast Facts, CNN.COM (Aug. 29, 2013, 1:48 PM),
http://www.cnn.com/2013/06/05/us/trayvon-martin-shooting-fast-facts/.
Raw: 911 call Zimmerman made to Sanford police (Explicit), WFTV.COM,
http://www.wftv.com/videos/news/raw-911-call-zimmerman-made-to-sanfordpolice/vGZq9/ (last visited Jan. 18, 2015); Transcript of George Zimmermans Call to the
Police, MOTHERJONES, http://www.motherjones.com/documents/326700-full-transcriptzimmerman (last visited Jan. 18, 2015).
Id.
Id.
Id. The dispatcher attempted to retrieve Zimmermans location so the police could meet him.
However, Zimmerman told the dispatcher that the police just call him when they arrived so
he could tell the officers his location (suggesting that Zimmerman did not plan stay where he
was located when after hanging up the phone). Id.
See Trayvon Martin Shooting Fast Facts, supra note 7.
Id.
Id.
Id.
Some SYG supporters have critiqued the attention given to Zimmermans case,
underscoring that his case did not actually involve Floridas SYG law because he waived his
rights of immunity from prosecution under section 776.032 of the Florida Statutes. However,
the SYG doctrine does not exist only in this separate statute, which grants immunity from
prosecution, but is integral to the meaning of self-defense in the state. Ta-Nehisi Coates,
How Stand Your Ground Relates to George Zimmerman, THE ATLANTIC (July 16, 2013,
3:45 AM), http://www.theatlantic.com/national/archive/2013/07/how-stand-your-groundrelates-to-george-zimmerman/277829/. Furthermore, the jury instructions used both stand
your ground and no duty to retreat language, stating that, If George Zimmerman was . . .
attacked in any place where he had a right to be, he had no duty to retreat and had the right
to stand his ground and meet force with force . . . . Id. (emphasis added).
See, e.g., FLA. STAT. ANN. 776.013(3) (West 2005) (A person who is not engaged in an
unlawful activity and who is attacked in any other place where he or she has a right to be
has no duty to retreat and has the right to stand his or her ground and meet force with force,
including deadly force if he or she reasonably believes it is necessary to do so to prevent
death or great bodily harm to himself or herself or another or to prevent the commission of a
forcible felony.) (emphasis added).
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creates disparate and unjust results. The SYG doctrine is arguably responsible
for allowing Zimmermanwho voluntarily removed himself from the safety of
his vehicle to chase down the young black teen whom he eventually fatally shot
in self-defenseto walk free,18 while imposing a fifteen-year prison sentence
on Natasha, who killed her extremely abusive and threatening boyfriend when he
trapped her in the bedroom.19
Public outrage regarding both the delay in Zimmermans arrest20 and his
subsequent acquittal of murder charges21 put Floridas SYG statute under
national scrutiny. Numerous organizations22 began advocating for the repeal of
these laws based on the common belief that they undermine public safety,
senselessly put people at risk, and enable the kind of tragedy weve witnessed in
the case of Trayvon Martin.23 This article does not intend to undermine these
serious and very real concerns that SYG laws may legally excuse abhorrent
misconduct, as was the case with George Zimmerman. However, this article does
not focus on the problems with the SYG laws that are exacerbated by social and
structural racism, but rather, it focuses on how these laws affect another
vulnerable24 population women in abusive relationships.25 This article argues
18.
19.
20.
21.
22.
23.
24.
After he was acquitted of murder charges in the Martin case, Zimmerman had several
encounters with the law enforcement where he battered a police officer, battered his
girlfriend, and, on two occasions, threatened others with a firearm. See Zimmerman Accused
of Domestic Violence, Fighting with a Police Officer, NBC NEWS (Mar. 27, 2012, 8:53 PM),
http://usnews.nbcnews.com/_news/2012/03/27/10894561-zimmerman-accused-of-domesticviolence-fighting-with-a-police-officer (detailing how, in 2005, Zimmerman was arrested
and charged with battery against a police officer, and his ex-fiance obtained a restraining
order against him for domestic violence); Kyle Hightower & Mike Schneider, Zimmermans
Wife Wont Press Charges Despite Call, ASSOCIATED PRESS (Sept. 9, 2013, 10:49 PM),
http://bigstory.ap.org/article/fla-police-called-george-zimmerman (describing how, in
September 2013, after Zimmermans acquittal for the Martin shooting, the police were called
for a domestic dispute where Zimmerman punched his wifes father in the face, and
threatened him and Zimmermans wife with a gun); Joe Coscarelli, George Zimmerman
Arrested Again in Domestic Violence Incident [Updated], N.Y. MAG. (Nov. 11, 2013, 11:33
AM), http://nymag.com/daily/intelligencer/2013/11/george-zimmerman-arrested-domesticviolence-gun.html (detailing how, in November 2013, Zimmerman was arrested for yet
another domestic violence assault involving a shotgun against his then-girlfriend.
Walshe, supra note 1.
Michael Saba, And Justice for All?: Debating the Zimmerman Arrest and Race in America,
CNN.COM (Apr. 13, 2012, 1:45 PM), http://www.cnn.com/2012/04/13/us/zimmerman-reaxirpt/. A national outcry spurred thousands of protestors and activists to tak[e] to the streets
in Million Hoodie marches, demanding that formal charges be filed against Zimmerman.
Id.
Rachel Martin, Zimmerman Acquitted of Murder Charges, NATL PUB. RADIO (July 14,
2013, 8:00 AM), http://www.npr.org/templates/story/story.php?storyId=202011011.
See, e.g., Petitions Against Stand Your Ground Reach over 500,000 Names, END STAND
YOUR
GROUND
(Feb.
9,
2014),
http://endstandyourground.wordpress.com/2014/02/09/petitions-against-stand-your-ground/
(listing over a dozen online petitions from various organizations that call for an end to Stand
Your Ground laws in several states).
Rashad Robinson, End Stand Your Ground Laws, MOVEON.ORG PETITIONS,
http://petitions.moveon.org/sign/end-stand-your-ground (last visited Feb. 12, 2014).
Women may be vulnerable in multiple senses of the word. As victims of domestic
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that lawmakers should consider the impact these laws have on women who
survive abusive relationships before eagerly repealing all forms of SYG laws.
For women like Natasha who kill their abusers in self-defense after years of
sustaining physical, emotional, sexual, and/or financial abuse, permitting a small
category of legally justifiable violence via SYG protection could more
adequately preserve justice for certain oppressed populations.
This article examines the effect of SYG laws on domestic violence
survivors,26 whose situations differ from others in which a person feels
threatened by a stranger. Given the circumstances of the abusive relationship,
when a battered woman feels threatened, she does not usually have a reasonable
opportunity to retreat from an episode of domestic violence. Part I examines
background information on the theories explaining the dynamics of domestic
abuse, as well as the birth and evolution of SYG laws. This Part provides a
backdrop for understanding the situation in which a survivor finds herself prior
to using deadly force, and explains the various SYG statutes that may affect her
case. Part II analyzes the problems that SYG laws (versus the duty to retreat)
create for battered defendants, namely, whether they are in fact protected by
SYG immunity from prosecution. This Part also examines how fact finders
gender biases and misperceptions about domestic violence cause them to
inappropriately apply SYG laws. Lastly, Part III proposes the following
solutions: (1) retain affirmative SYG laws in a limited capacity; (2) limit SYG
privilege27 so that it is available only while inside the home; and (3) create a
statutory presumption of reasonable fear where there is a history of abuse
between a dominant aggressor and a more vulnerable person. These legislative
changes most closely comport with a balanced system of justice, taking into
account a womans right to self-defense when faced with lethal force from an
abusive partner, while avoiding potentially adverse effects of expanding a
doctrine that justifies violence.
violence, women are under constant threat of attack, and such violence can often escalate to
the point of death. Further, battered women who kill their batterers in self-defense face grave
challenges in front of unsympathetic judges and juries.
25. This article recognizes that not all battered persons are women and that not all batterers are
men (nor does it assume that all persons identify either as men or women). Indeed, men are
sometimes victims of domestic violence, either by another man or by a woman, and likewise,
women sometimes batter other women. However, for the dual purpose of clarity and
recognizing the fact that the vast majority of domestic violence involves male perpetrators
and female victims (with the smallest minority involving female-on-male violence), this
article will use female pronouns exclusively to describe the battered person and male
pronouns to describe the batterer.
26. Throughout this article, women who endure abuse in their intimate relationships will be
referred to as domestic violence survivors, survivors, women in abusive relationships,
and at times, battered women.
27. While facing a lethal threat, the ability to stand your ground and use force to defend yourself
hardly seems like a privilege. However, this term is one commonly used in the sources to
describe the right of asserting SYG as a legal defense. This article uses privilege and right
interchangeably, but favors privilege for clarity.
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29.
30.
31.
32.
33.
34.
35.
36.
37.
See, e.g., CAL. PENAL CODE 197 (West, Westlaw through 2014 Reg. Sess.) (Homicide is
also justifiable when committed . . . in defense of habitation, property, or person . . . against
one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to
enter the habitation of another . . . .).
See Joseph H. Beale, Jr., Retreat from a Murderous Assault, 16 HARV. L. REV. 567, 568-69
(1903). During the thirteenth-century, homicide committed in self-defense was considered
justifiable, and thus worthy of acquittal only if it were done in execution of the law (for
example, to prevent a robbery). Id. at 568.
Id.
Id. at 571.
See Ray Taylor, et al., Self-Defense in Homicide Cases, 42 AM. JUR. TRIALS 151, 25
(1991).
Id.
Essentially, this is an exception within an exception. The exception to the right to selfdefense is the duty to retreat, and the exception to the duty to retreat occurs when one is
inside ones own home.
While now understood to apply unilaterally to both men and women, the original statutes
and common law language used male pronouns exclusively.
Christine Catalfamo, Stand Your Ground: Floridas Castle Doctrine for the Twenty-First
Century, 4 RUTGERS J.L. & PUB. POLY 504, 505-06 (2007).
Id.
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161
39.
40.
41.
42.
See, e.g., State v. Thomas, 673 N.E.2d 1339, 1343 (Ohio 1997) (holding that there is no
duty to retreat from ones own home before resorting to lethal force in self-defense against a
cohabitant with an equal right to be in the home.); Com. v. Commander, 260 A.2d 773, 777
(Pa. 1970) (where one free from fault in bringing on the difficulty is dangerously assaulted
in his own dwelling by one not a member of the household, he need not retreat, but may
stand his ground and meet deadly force with deadly force to save his own life or to protect
himself from great bodily harm.).
CAL. PENAL CODE 197 (West, Westlaw through 2014 Reg. Sess.) (emphasis added).
Id. (emphasis added).
CALJIC No. 5.50 (West, Westlaw 2014) (emphasis added).
Jeannie Suk, The True Woman: Scenes from the Law of Self-Defense, 31 HARV. J.L. &
GENDER 237, 243 (2008); see, e.g., FLA. STAT. ANN. 776.031 (West, Westlaw through
2014 2d Reg. Sess.) (A person . . . does not have a duty to retreat . . . if the person . . . is in a
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protected a defendant who stood his or her ground against an attacker only where
the incident occurred within the defendants home.
Perhaps the most significant way in which lawmakers expanded the
doctrine was by creating a statutory presumption of reasonable fear when an
intruder attacks a defendant in the defendants own home. California Penal Code
section 198.5 provides one example, as it creates a presumption of a reasonable
fear of imminent peril of death or great bodily injury to self, family, or a member
of the household in a person who uses force against an intruder who unlawfully
and forcibly enters his or her residence.43 This presumption, however, applies
only when the intruder is not a member of the family or household. Id.
Florida is notorious for the way in which it strengthened the right to stand
ones ground by enacting affirmative SYG legislation.44 Such affirmative
legislation granted immunity from criminal prosecution and from civil liability,
beyond merely providing a defense to such prosecutions and claims.45 Pursuant
to section 776.032 of the Florida Statutes, a person who uses force as permitted
under Floridas self-defense laws, and who is justified in doing so, is immune
from criminal prosecution and civil action for the use of such force.46
More than twenty states have adopted similar affirmative SYG laws.47 This
article examines the effects of this expansion and the shortcomings of the duty to
retreat for women like Natasha, who use the only means available to save their
lives, but who might otherwise lack protection from being re-victimized by the
criminal justice system.
C. Battered Womans Syndrome and the Survivor Theory: Competing
Frameworks for Understanding Domestic Violence and Why Women in
Abusive Relationships May Not Leave
There are two leading theories that attempt to explain why women remain
in abusive relationships despite repeated instances of violence and why most
survivors of domestic violence make several attempts to leave before ending the
relationship for good.48 Both theories arrive at the similar conclusion that any
potential opportunity to retreat is unreasonable for women living in abusive
43.
44.
45.
46.
47.
48.
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163
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
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the cage door open, the dogs did not attempt to escape or avoid the shocks.60 It
took repeated dragging of the dogs to the exit to teach them how to respond
voluntarily again.61
Walker adopts the theory of learned helplessness to describe how women
respond to repeated abuse. According to Walker, battered womens behavior can
be understood in this way because the women similarly endure repeated brutal
attacks, often at random, and there is nothing they can do to end the violence.62
Women who have learned to expect battering have learned they cannot influence
its occurrence or nonoccurrence, often impeding the ability to appreciate other
options.63 This feeling of powerlessness results in women staying with their
abusive partners in order to retain some hope of control, even if this means
controlling the mere time and place of the inevitable beatings.64 Walker further
theorizes that, because battered women do not believe their behavior could deter
the abuse, they often feel less anxiety remaining in the relationship than they
would feel if they attempted to leave and live apart from their abuser.65
Scholars have vehemently criticized Walkers concept of BWS, and its
learned helplessness component in particular, for portraying a stereotypic image
of battered women as helpless, passive, or psychologically impaired, who can
successfully escape their situation only if they are dragged out of their virtual
cages.66 Each battered woman is unique, and perpetuating a stereotypic image of
such a person inaccurately conflates a diverse population.67 Likewise, abusive
relationships do not match a uniform pattern.68 Criticism also stems from the
syndrome terminology Walker uses, which carries a connotation of pathology
or disease and creates the false perception that a battered woman suffers from a
mental disorder,69 when the focus for correction ought to be placed on the
batterer, whose behavior is contrary to both morality and the law.70
Sociologists Edward Gondolf and Ellen Fisher have developed an
alternative theory to BWS, which they call the Survivor Theory, to explain the
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
Id.
Id.
Id. at 45; see also Sarah M. Buel, Fifty Obstacles to Leaving, A.K.A., Why Victims Stay, 28
COLO. LAW. 19 (1999) (presenting a list of fifty reasons why domestic violence victims stay
in the relationship, based on the experiences of the authors clients, as well as her own).
WALKER, supra note 49, at 45; but see infra Part I.D (detailing that survivors may also stay
because they lack financial and community resources, or because leaving may escalate the
violence).
WALKER, supra note 49, at 52-53.
Id.
See, e.g., & FISHER, supra note 50.
See id.
Id.; see also BATTERING AND ITS EFFECT, supra note 51.
BATTERING AND ITS EFFECT, supra note 51.
The law prohibits beating any person, particularly an intimate partner. See, e.g., CAL. PENAL
CODE 273.5(a) (Any person who willfully inflicts corporal injury resulting in a traumatic
condition upon a victim described in subdivision (b) is guilty of a felony . . . .).
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165
behavior of women subjected to abuse in a way that does not portray a narrow
image of battered women as passive and helpless victims.71 Leigh Goodmark
explains the Survivor Theory as follows:
[The Survivor Theory] recast[s] the battered woman as a survivor who actively
takes measures to protect herself and her children from within the relationship,
rather than the passive victim immobilized by the failure of past efforts to
forestall the violence and unable to leave her abuser. Having determined that
help is not available, the survivor may come to the rational conclusion that she
may be more likely to survive if she suffers physical violence within the
relationship than if she attempts to leave.72
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would not make her safer, but in fact, would likely cause the violence to
escalate.79 In other words, a battered womans experience may lead her to make
the statistically-accurate assessment that violence will only escalate upon
separation from her partner.80 Studies show that women who leave abusive
relationships face a greater risk of harm than if they remained in the relationship
due to the heightened likelihood of attack after separation.81 The harm from
separation assault could be lethal, as [t]he batterer would often rather kill, or die
himself, than separate from the battered woman.82 Indeed, a batterer is seventyfive percent more likely to murder a victim who flees than one who stays.83 A
California study that reviewed domestic homicide cases found that forty-five
percent of women homicide victims were killed when they were recently
separated or in the process of separating from their abuser.84 Similarly, a San
Diego report states that pending or actual separation was the most common risk
factor for domestic homicide.85 Interestingly, separation has been identified as a
risk factor for domestic homicide even in relationships where there is no
documented history of abuse.86 Even where a survivor of abuse obtains a
restraining order against the abuser, such an order is sometimes no more
effective in deterring a batterer than the paper on which it is written.87
Apart from the above-mentioned dangers of separation assault, the lack of
community resources often makes the option of leaving the relationship
effectively impossible. Financial dependence on the abuser makes it difficult for
a woman to temporarily or permanently leave her abuser.88 In addition, abusers
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
See Hart, National Estimates and Facts About Domestic Violence, VOICE, Winter 1989, at
12.
Id.
Molly Dragiewicz & Yvonne Lindgren, The Gendered Nature of Domestic Violence:
Statistical Data for Lawyers Considering Equal Protection Analysis, 17 AM. U. J. GENDER
SOC. POLY & L. 229, 255 (2009) (A larger portion of domestic homicides are likely
properly conceived as separation assault in cases occurring during separation but prior to
divorce, or at the time a woman announces her intention to separate. A California study that
reviewed domestic homicide cases found that 45% of women were killed when they were
recently separated or in the process of separating from their abuser.).
WALKER, supra note 49, at 50-51.
Buel, supra note 62.
Dragiewicz & Lindgren, supra note 81.
Id.
Id. (In 49% of our surveyed murder cases involving a non-abusive relationship, the victim
had recently separated herself from the perpetrator, the perpetrator suspected the victim was
having an affair or was jealous of a new intimate relationship and/or the perpetrator was
experiencing serious financial difficulties.)
Walshe, supra note 1 ([R]estraining orders and such are about as effective as the paper
theyre written on, when it comes to deterring a determined batterer . . . .).
Tamara L. Kuennen, Analyzing the Impact of Coercion on Domestic Violence Victims: How
Much Is Too Much?, 22 Berkeley J. Gender L. & Just. 2, 4-5 (2007) ([F]inancial pressure is
one of the most prevalent means used by batterers to control victims, and has been found to
be a primary reason victims do not separate from batterers.); see Buel, supra note 62;
WALKER, supra note 49, at 52; Walshe, supra note 1 ([L]eaving is financially impossible,
especially when there are children involved . . . .).
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167
often control their partners financially by forbidding their partners from opening
their own bank account, managing their money, earning money, or having any
access to financial resources.89 Societal factors also play a role in women having
fewer economic resources, such as womens persistently lower income and
greater participation in childcare.90
Additionally, a domestic violence survivors isolation from her friends and
familyoften an element of the abuse91reduces or eliminates the number of
places to where she can retreat in order to live safely for the short term.92 While
staying at a shelter seems like a viable option, she may still face several
obstacles, such as: lack of shelter availability, especially in rural areas; inability
to gain transportation to the shelter; lack of cultural competence on the part of
the shelter staff; and language barriers between herself and the shelter staff. 93
Furthermore, these options provide only temporary relief from danger. A
survivor often lacks the necessary education, experience, and/or financial
resources to earn a living to support herself (and often her children) in the long
term.94 In the 1980s and 1990s, courts began to explicitly recognize these
significant barriers to a womans freedom to retreat, which may put her in the
unavoidable situation where she must use force in order to save her life.95 As
courts became familiar with the plight of domestic violence survivors, the SYG
89. Susan L. Pollet, Economic Abuse: The Unseen Side of Domestic Violence, N.Y. St. B.J.,
February 2011, at 40-41; Maria L. Imperial, Self-Sufficiency and Safety: Welfare Reform
For Victims of Domestic Violence, 5 Geo. J. on Fighting Poverty 3, 10 (1997) (discussing
how batterers sabotage their victims ability to obtain an education, job training, and to
maintain a job), See also Domestic Violence Facts (Power and Control Wheel),
NATIONAL COALITION AGAINST DOMESTIC VIOLENCE (NCADV), available at
http://www.ncadv.org/files/DomesticViolenceFactSheet(National).pdf (last visited Nov. 23,
2014) (Economic Abuse: Preventing her from getting or keeping a job. Making her ask for
money. Giving her an allowance. Taking her money. Not letting her know about or have
access to family members.).
90. Dragiewicz & Lindgren, supra note 81, at 244-45; see generally Robert H. Cohen, PayEquity: A Child of the 80s Grows Up, 63 FORDHAM L. REV. 1461 (1995) (discussing wage
disparities between men and women).
91. Orly Rachmilovitz, Bringing Down the Bedroom Walls: Emphasizing Substance over Form
in Personalized Abuse, 14 Wm. & Mary J. Women & L. 495, 507 (2008); see also Power
and Control Wheel, supra note 89.
92. Buel, supra note 62.
93. See, e.g., Pamela L. Mulder & Alice F. Chang, Domestic Violence in Rural Communities: A
Literature Review and Discussion, J. RURAL COMMUNITY PSYCHOL. (1997),
http://www.marshall.edu/jrcp/vole1/vol_e1_1/Mulder_Chang.html ([Domestic violence]
[v]ictims who seek assistance in rural areas are hampered by the lack of adequate
services. . . . [E]mergency shelters are usually few in number and are typically difficult to
access because of distance or other geographic barriers. Rural service agencies often lack
funding and tend to be staffed by less qualified personnel than those in more urban
regions . . . .); Walshe, supra note 1 (discussing how shelters are often full).
94. Such educational and financial barriers are often a product of the abuse itself (stemming
from financial manipulation, reproductive abuse, isolation from the community, etc.). See
Imperial, supra note 89, at 10; Pollet, supra note 89, at 40-41; Rachmilovitz, supra note 91,
at 507.
95. See infra, Part II.A (discussing the evolving law in this area).
168
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96.
97.
98.
99.
100.
101.
102.
103.
State v. Bobbitt, 415 So. 2d 724, 726 (Fla. 1982) (holding that the privilege not to retreat,
premised on the maxim that every mans home is his castle which he is entitled to protect
from invasion, does not apply here where both Bobbitt and her husband had equal rights to
be in the castle and neither had the legal right to eject the other).
See id.
Id.
Id.
Id.
Id. at 728 (Overton, J., dissenting).
Id.
Id.
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169
required to flee [his/her] home and has the lawful right to stand [his/her]
ground . . . .104
A statute such as this would not require a survivor of domestic violence to
flee from her home when attacked by a cotenant, but it unwarrantedly assumes
that she could reach safety by going into another room of the house. While her
retreat to another room may, in some instances, stop or temporarily cease the
violence, nothing prevents the assailant from following her to another room and
recommencing the attack. Furthermore, this hypothetical statute could prove
detrimental to any woman who killed her abuser when the altercation took place
entirely in one room, or where she did not first try to flee to each room in the
house until finally responding with lethal force. Overton criticized the majority
for failing to recognize the realities of life, while creating a hypothetical law
that seems to senselessly do the same.105
Seventeen years after the Bobbitt decision, the Supreme Court of Florida,
in Weiand v. State, adopted Overtons dissent as new authority.106 The defendant
in Weiand shot her husband during a violent argument in their apartment.107 The
defendant asserted self-defense, testifying that her husband had beaten and
choked108 her throughout their relationship, and had threatened further violence
if she left him.109 The court did not deny her the privilege to stand her ground
even though her husband had an equal right to be in the home. It stated two
reasons for not following Bobbitt:
First, we can no longer agree with Bobbitts minority view that relies on
concepts of property law and possessory rights to impose a duty to retreat from
the residence. Second, based on our increased understanding of the plight of
victims of domestic violence in the years since our decision in Bobbitt, we find
that there are sound policy reasons for not imposing a duty to retreat from the
residence when a defendant resorts to deadly force in self-defense against a cooccupant.110
The court went on to note that its increased understanding of the plight of
domestic violence victims includes the fact that the attacks are repeated over
time, making escape from the home without the risk of great bodily harm or
death nearly impossible.111
104.
105.
106.
107.
108.
109.
110.
111.
170
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The Weiand court explained that imposing the duty to retreat on a battered
woman who finds herself the target of a unilateral, unprovoked attack in her
own home is inherently unfair.112 Upholding the distinction between intruder
and cohabitant would unfairly disadvantage her where as long as it is a stranger
who attacks her in her home, she has a right to fight back and labors under no
duty to retreat, but she must retreat if the attacker is her husband or live-in
partner.113 This result is senseless, as [t]he threat of death or serious bodily
injury may be just as real (and, statistically, is more real) when her husband or
partner attacks her in home [sic].114 The court thereby recognized that a woman
in an abusive relationship has learned that safe retreat is not possible, because
during repeated instances of past abuse, she has retreated, only to be caught,
dragged back inside, and severely beaten again.115
This decision, following a growing majority of jurisdictions,116 took an
appropriately progressive step toward justice for battered defendants. The above
analysis underscores that courts appreciation of domestic violence survivors
real, and not-so-real, options for retreat. As such, the legal system has begun to
recognize the right of battered defendants to use force even if the attacker is a
cohabitant.
In subsequent years, other jurisdictions followed Florida in abolishing the
distinction between an intruder and co-occupant when evaluating whether the
defendant could invoke the SYG defense.117 For example, the Supreme Court of
Minnesota justified its decision to no longer distinguish an intruder from a
cohabitant by recognizing the impossible decision a domestic violence survivor
faces.118 She is forced to choose between staying in the home and acquiescing
to the abuse[;] staying in the home and defending herself, knowing that she will
not have a legal defense under the law[;] or abandoning her children and
retreating.119
112.
113.
114.
115.
116.
117.
118.
119.
Id. (citing State v. Gartland, 694 A.2d 456, 570-71 (N.J. 1997) (quoting Maryanne E.
Kampmann, The Legal Victimization of Battered Women, 15 WOMENS RTS. L. REP. 101,
112-113 (1993))).
Id.
Id.
Id.; see also Walshe, supra note 1. Furthermore, even if she manages to escape, other
hurdles confront her. Where will she go if she has no money, no transportation, and if her
children are left behind in the care of an enraged man? Weiand, 732 So. 2d at 1053.
See State v. Thomas, 673 N.E.2d 1339,1343 (Ohio 1997) (The majority of jurisdictions in
the United States have held that there is no duty to retreat when one is attacked in ones own
home, regardless of whether or not the assailant has a right to be in the home equal to that of
the one being assailed.).
See, e.g., State v. Glowacki, 630 N.W.2d 392 (Minn. 2001); State v. Harden, 679 S.E.2d
628, 631 (W. Va. 2009). When Nebraska followed the trend, the court emphasized the logic
underlying the decision in Weiand, and embraced the new rule as the sensible way to
uniformly apply the duty to retreat doctrine. See State v. White, 819 N.W.2d 473, 476 (Neb.
Ct. App. 2012).
Glowacki, 630 N.W.2d at 392.
Id.
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171
Other courts chose to follow precedent that upheld the distinction between
cohabitants and intruders, but urged legislatures to revise the doctrine to abolish
the distinction.120 For example, recognizing that the judiciary has no power to
define crimes and provide for their punishment,121 the Supreme Court of New
Jersey commend[ed] to the legislature consideration of the application of the
retreat doctrine in the case of a spouse battered in her own home.122 Responsive
to this request, the New Jersey Legislature proposed a revision to eliminate the
duty to retreat in all cases where the person was in his or her own home and was
not the initial aggressor. The New Jersey Assembly Judiciary Committee
Statement explained the provisions of the introduced bill:
The Senate bill as introduced, would have provided that a person who has been
the victim of domestic violence who is attacked by a cohabitant spouse or
cohabitant household member has no duty to retreat in the shared dwelling. As
amended by the Senate Judiciary Committee, this bill now provides that the
duty to retreat by a person attacked in the persons home would be eliminated
in all cases except if the person instigated the altercation.123
172
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127.
128.
129.
130.
131.
132.
133.
134.
135.
136.
137.
138.
139.
140.
Id.
See J. Taylor Rushing, Deadly-Force Law Has an Effect, but Florida Hasnt Become the
Wild West; State Attorneys Say It Makes Filing Charges More Difficult for Prosecutors, FLA.
TIMES-UNION
(July
10,
2006),
http://jacksonville.com/tuonline/stories/071006/met_22294481.shtml.
Id.
See, e.g., Floridas Stand Your Ground Law, TAMPA BAY TIMES,
http://www.tampabay.com/stand-your-ground-law/cases/case_91 (last updated Aug. 10,
2013); David Sommer, Prosecutors Drop Murder Charge Against Prostitute, TAMPA TRIB.,
July 27, 2006, at 15.
Floridas Stand Your Ground Law, supra note 130; see also Weaver, supra note 47, at 412.
Floridas Stand Your Ground Law, supra note 130.
Id.
Weaver, supra note 47, at 411 (citing Sommer, supra note 130).
Id.
Id.
FLA. STAT. ANN. 776.031 (West, Westlaw through 2014 2d Reg. Sess.).
Weaver, supra note 47 (citing Liptak, supra note 125).
Id. at 410-17 (describing several other cases where prosecutors chose not to bring charges
against a shooter, based on the SYG laws).
Id. at 407 (citing Henry Pierson Curtis, Gun Law Triggers at Least 13 Shootings, ORLANDO
SENTINEL, June 11, 2006, at A1.).
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173
174
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Criminal law has been developed by male common law judges, codified by
male legislators, enforced by male police officers, and interpreted by male judges
and juries,148 and as such, the reasonableness standard is analyzed within the
framework of male normativity.
This framework has resulted in more than a century of discrimination
toward women.149 Historically, [i]t was commonly held that the standard did
not apply to female defendants, who were thought to be incapable of reasonable,
rational thought.150 Though gender biases have become more covert, societal
stereotypes and prescribed gender roles continue to inform jurors consideration
of the reasonableness of a woman defendants actions.151 Judges may treat
women more harshly, based on the view that there is a greater discrepancy
between the female offenders behavior and the expected behavior of women
than between a male offenders behavior and the expected behavior of men.152
In other words, violent acts are further removed from the expected behavior of
passive or virtuous women, and thus, seen as less reasonable than identical
acts performed by men. One further bias that disadvantages women is the
misogynistic view that women are regarded as inherently less credible than men
and . . . are frequently the targets for the most callous sort of victim blaming.153
This is especially true for women of color, whose intersectional identities of
gender, race, and socioeconomic status (among others) cause them to experience
a heightened degree of oppression.
Although the use of the word person creates a faade of gender
neutrality,154 the legal community continues to hold women to a standard of
reasonableness clearly rooted in the male experience.155 Changing a word does
not instantaneously eliminate the gender-biased worldview through which judges
and juries operate. A large number of judges continue to hold negative biases
against women,156 which often leads to extremely harsh sentences for women in
comparison to their male counterparts.157 To illustrate: women who kill their
intimate partners receive longer prison sentences on average, ranging from
fifteen to twenty years in state prison, as compared to only two to six years for
male defendants who kill their intimate partners.158 Allowing women to serve on
147.
148.
149.
150.
151.
152.
153.
154.
155.
156.
157.
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175
juries did not mitigate the effects of gender bias, as gender stereotypes
condoning male dominance and aggression are so pervasive that women, too,
project them.159 Jurors may not even be aware of their own gender biases
because the biases are so deeply ingrained in societal norms.160
D. Fact Finders Victim-Blaming Mentality Grossly Distorts Their
Understanding of The Circumstances of the Homicide
Stereotypes surrounding abuse compound the harms that gender bias visits
on female defendants. A fact finders internalized myths and misunderstandings
regarding the circumstances of domestic violence distorts their analysis of what a
reasonable person would do in the defendants position, given the specific
circumstances of the case.161
The problem with granting a judge or jury the power to determine what is
reasonable in circumstances as dynamic and misunderstood as domestic abuse
is that fact finders impose the reasonableness analysis on the survivors decision
to stay in the relationship, rather than weighing the reasonableness of her actions
at the moment when she uses lethal force in self-defense. Fact finders consider
often-horrendous facts as an indicator that the defendant should have retreated
from the relationship prior to the instance of deadly violence in question.162
When asked what a reasonable person would do, judges and jurors may believe
that a reasonable person would have left long ago. This misinformed dialogue
continues: If she would have done the reasonable thing, she would not have
159.
160.
161.
162.
by the National Coalition Against Domestic Violence); but see Keller, supra note 146 at 25758 ([E]mpirical studies of sex disparities in sentencing commonly conclude that women
spend less time in prison than men for committing identical crimes. However, scholars have
criticized these studies on several grounds: (1) the studies commonly lack controls for legally
relevant variables such as prior criminal record and offense severity; (2) variance between
the sexes may depend on whether sentence severity is measured by the decision to
incarcerate or by comparing sentence lengths; and (3) terms such as violence are often
inadequately defined and aspects of criminality, such as motive, are generally not
explored . . . .).
Miller, supra note 145, at 255-56 ([W]hen making decisions, juries as a whole seem to rely
on gender stereotypes that dictate that it is reasonable for a man to react hastily when he
learns about his wifes acts of adultery, suggesting that gender stereotypes condoning male
dominance and aggression are so pervasive that they are internalized by both male and
female jurors.).
Id. at 266.
See e.g., People v. Humphrey, 921 P.2d 1, 7 (Cal. 1996)
(Although the ultimate test of reasonableness is objective, in determining whether a
reasonable person in defendants position would have believed in the need to defend, the jury
must consider all of the relevant circumstances in which defendant found herself. (emphasis
added)); State v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001) ([E]ven absent a duty to
retreat, the key inquiry will still be into the reasonableness of the use of force and the level of
force under the specific circumstances of each case. (emphasis added)).
Keller, supra note 146, at 266 (Some have confused this duty to retreat with the notion that
a woman should have left the relationship rather than use deadly force to prevent further
attacks by an abusive mate.)
176
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See id. (As a result [of confusing the duty to retreat with the notion that a woman should
have left the relationship rather than use deadly force to prevent further attacks by an abusive
mate], if it is not understood why the woman remained in the relationship, and the duty to
retreat is not limited to its proper scope, the use of deadly force by a woman may be viewed
as excessive.)
164. See supra Part II.D.
165. Griffith, supra note 54, at 180 ([B]attered woman syndrome is the most often judicially
recognized theory on the psychological impact of domestic abuse . . . .); Id. at 174 ([A]ll
fifty states have allowed battered woman syndrome evidence to be admitted in court . . . .).
166. See generally GONDOLF & FISHER, supra note 50; Griffith, supra note 54.
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177
Why further victimize a woman through the criminal justice system when a
batterer has already subjected her to extreme violence and abuse? While
prosecutors have near-absolute discretion in deciding whether to bring a charge,
an immunity law gives them a legal leg upon which to stand in justifying their
decision not to charge in this type of case. Of course, if there is a legitimate
question as to whether the decedent was abusive, or whether the moment in
question required lethal force, an immunity law would not come into effect.
Affirmative SYG would merely have a pre-screening purpose, requiring
prosecutors to critically analyze a battered defendants self-defense assertion
before having her arrested and forcing her to prove this defense in court.
Immunity from prosecution would be especially important for survivors of
domestic violence, who often have children to care for at home. An immunity
statute could spare a survivor the trauma and stresses of going through the
criminal justice system, while also sparing her children the trauma of being
separated from their mother.
Additionally, without immunity, the woman might be pressured to
negotiate for a favorable, but unfair, plea bargain. She may choose to plea rather
than risk a more adverse result through trial, even when she is not morally
culpable of the offense. In order to avoid risking her childrens safety while left
in the custody of some other person, or of the state, she may rationally conclude
that agreeing to a plea bargain would be the best way to ensure the safety of her
family, even if she believes she has a fair chance of acquittal at trial.
B. The Law Should Permit Battered Defendants to Benefit from Stand
Your Ground Laws Regardless of the Attackers Property Rights
The definition of dwelling should not be limited to a place that a battered
woman has the exclusive right to occupy, so as to grant the right to stand ones
ground to a person despite the attackers status as an intruder, spouse, or anyone
in between. As a practical matter, providing such a strict definition of
dwelling would eliminate protection for married women, for those who jointly
rent or own with their intimate partner, and for those who live in a place where
the batterer has sole legal possession.
Extending the definition of dwelling to include places where someone is
temporarily housed, rents the space, or shares space with the sole owner
accurately represents societys understanding of what should constitute ones
home for purposes of establishing ones ultimate place of safe retreat. The
purpose of the duty to retreat is to impose the obligation to seek safety elsewhere
before resorting to violence. Originally, the law imposed the duty to flee to a
river he could not swim or a wall he could not climb before turning to kill.167
Premised on the idea that the home offers a person the safety and security that
167.
178
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FLA. STAT. ANN. 776.013 (West, Westlaw through 2014 2d Reg. Sess.) (emphasis added).
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179
cohabitant, and thus have a greater fear of the cohabitant than of an unknown
person. The cohabitant may have even threatened her with such weapons in the
past. Additionally, his legal right to possession of the residence may exacerbate
her fear if she understands that it will be more difficult to obtain law
enforcement help to force the cohabitant, rather than a trespassing stranger, to
leave.
The disparity between protections provided against an unknown intruder
and those provided against a violent partner is incompatible. The law should
therefore be revised to create a rebuttable presumption of reasonable fear in a
person where there is a documented history of abuse by his or her partner. The
history need not be extensive, as even one instance of violence should give her
more reason to fear her partner than to fear an unknown intruder.
D. Response to Potentially Adverse Effects of the Proposed Statutory
Changes
SYG is not an invitation to assault another person if the assaulter is in his
or her own home. SYG merely provides a defense (or immunity from
prosecution) where a defendant responds, with a reasonable amount of force, to
an imminent threat against him or her, even if there was an opportunity to retreat.
In many cases, the primary challenge for a domestic violence survivor who kills
her abusive partner is proving that she was justified in failing to retreat, not
whether she faced imminent death or serious bodily injury. Creating or retaining
a SYG law would help overcome this obstacle, while still retaining the initial
requirement that the defendant be justified in using lethal methods of selfdefense.
Even where a statute is designed to protect the needs of a particularly
vulnerable population, and appears to be in the best interest of justice,
discretionary enforcement can produce adverse effects for that population.
Elements of this proposed legislation exist in jurisdictions across the country, but
jurors applying these laws still find womens behavior unjustified, even where
the record includes a documented history of domestic abuse.169 This can occur
due to conflicting evidence, the woman not being a credible witness for herself
(often because of the trauma of recounting horrific abuse in an intimidating and
public courtroom), judges and juries being unsympathetic to her case
(manifesting from misogyny, social constructs of womanhood, or stereotypes),
or other intervening factors.170 However, the fact that implementation may be
169.
See, e.g., Alexander v. State, 121 So. 3d 1185 (Fla. Dist. Ct. App. 2013) (granting a new
trial after the lower court found that the battered defendant had not proved by a
preponderance of the evidence that she was justified in using deadly force in self-defense).
While there was testimony regarding a history of abuse by the decedent toward the
defendant, the evidence was conflicting. Id. at 1187, 1191.
170. See supra Part II.C-D.
180
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inhibited by some factors should not bar an otherwise favorable law from
existing.
Another concern is that, just as SYG principles could protect battered
defendants, they could also protect a batterer who claims, after a scratch or threat
by his partner, that he did not have the duty to retreat and was justified in using
violence towards his victim. Prior laws were aimed at protecting women from
violence, and were intended to send a message to abusers that their behavior will
not be tolerated. These laws, however, have produced adverse effects for
battered women. For example, advocates for abused women thought (and some
still believe) mandatory arrest laws would help solve the problem of a
perpetrator getting repeated warnings from police but never being arrested, and,
as a result, feeling secure in his ability to continue to harass, threaten, and abuse
his partner.171 Despite the motives to reduce domestic violence by forcing
officers to arrest the dominant aggressor, mandatory arrest laws have had
multiple adverse effects, including substantially higher rates of arrests of
women.172
The statutory changes this article proposes can avoid a similar fate. While
it is true that a man would have the same right to stand his ground and meet
force with force under the proposed doctrine, the law would still require him to
produce evidence demonstrating a reasonable fear of imminent death or great
bodily injury. Further, it would be difficult to imagine that a batterer could
produce valid evidence alleging abuse toward him that would invoke the
statutory presumption of fear warranting a lethal response.
Lastly, critics could be concerned that eliminating the duty to retreat
increases violence and is adverse to the interests of a safe home. However, in a
domestic setting, no empirical data has been presented, either through expert
testimony or studies, that demonstrates any correlation between eliminating a
duty to retreat from the home and an increase in incidents of domestic
violence.173
CONCLUSION
Historically, women were harmed most often by someone they knew,174
and now, an estimated 1.3 million women will endure domestic violence each
year.175 In many cases of severe abuse, retreat is not a viable option, even in
171.
172.
173.
174.
175.
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181
INTIMATE PARTNER VIOLENCE AGAINST WOMEN IN THE UNITED STATES (2003), available
at http://www.cdc.gov/violenceprevention/pdf/ipvbook-a.pdf.