Bill McVay on battered spouses shooting their attackers

Bill McVay

 > If two men get into a fight at a tavern, does the one who's
 > on the losing side of the fight have the right to pull a gun and
 > shoot and kill the other?

I've been off the echo for a while and missed the original post. but, one
of the reasons for my absence is directly related to this thread.  I was
called as an expert witness in an attempted murder trial.  One of my
clients, a woman who had been battered for 27 years, stabbed her husband
during an attack and was subsequently charged with attempted murder (and
the included charge, aggravated assault).

As part of the preparation for the trial, the defense attorney provided me
with material on R. vs LAVALLEE, a murder case where a battered woman shot
the abuser _in the back of the head_ while he was leaving the room.  This
case eventually reached the Supreme Court of Canada where Lavalle was
found not guilty be reason of self defense.

Two of the legal points in the Lavalle case were:  "The first is the
temporal connection connection between the apprehension of death or
grievious bodily harm and the act allegedly taken in self-defense.  Was
the appellant `under reasonable apprehension of death or grievious bodily
harm' from Rust as he was walking out of the room?  The second is the
assessment in the magnitude of the force used by the accused.  Was the
accused's belief that she could not `otherwise perserve herself from death
or grievious bodily harm' expect by shooting the deceased based `on
reasonable grounds'?

[material deleted]

The court then went on to quote from a U.S. case, saying:

I find the case of _State vs Wanrow_, 559 .2d 548 (1977), helpful in
illustrating how the factor of gender can be germane to the assessment of
what is reasonable.  In _Wanrow_ the Washington Supreme Court addressed
the standards by which a jury ought to assess the reasonableness of the
female appellant's use of a gun against an unarmed intruder.  [material
deleted] The court first observed, at p. 558, that `in our society women
suffer from a conspicuous lack of access to training in and the means of
developing those skills necessay to effectively repel a male assailant
without resorting to the use of deadly weapons.'  Later it found that the
trial judge ERRED in his instructions to the jury by creating the
impression that THE OBJECTIVE STANDARD OF REASONABLENESS TO BE APPLIED TO
THE ACCUSED WAS THAT OF AN ALTERCATION BETWEEN TWO MEN.  (emphasis mine)
At page 559, the court makes the following remarks which I find apposite
to the case before us:

"The respondent was entitled to have the jury consider her actions in the
light of her own perceptions of the situation, including those perceptions
which were the product of our nation's `long and unfortunate history of
sex descrimination.' Until such time as the effects of that history are
eradicated, care must be taken to assure that our self-defense
instructions afford women the right to have their conduct judged in light
of the individual physical handicaps which are the product of sex
descrimination.  To fail to do so is to deny the right of individual women
involved to trial by the same rules which are applicable to male
defendants."

 > If two men get into a fight at a tavern, does the one who's
 > on the losing side of the fight have the right to pull a gun and
 > shoot and kill the other? If he was not absolutely convinced that he
 > was going to be killed, should he be granted clemency because it is
 > within the realm of possibility that if one gets into a fight, one
 > might possibly be killed?
 >
 > If a married couple get into a fight and one hits the other
 > in the face, does the other have sufficient cause to get a gun or
 > knife and blow the other away?

"It will be observed that s. 34(2) (a reference to the Criminal Code of
Canada relating to self-defense) does not actually stipulate that the
accused apprehend IMMINENT (emphasis in original) danger when he or she
acts.  Case law has, however, read that requirement into the defense:
[case quotes deleted]. The sense in which `imminent' is used conjures up
the the image of `an uplifted knife' or a pointed gun.  The rational for
the imminence rule seems obvious.  The law of self-defense is designed to
ensure that the use of defensive force is really necessary.  It justifies
the act because the defended has reasonably believed that he or she had no
alternative but to take the attacker's life.  If there is a significant
time interval between the original unlawful assault and the accused's
response, one tends to suspect that the accused was motivated by revenge
rather than self-defense.  IN THE PARADIGMATIC CASE OF A ONE-TIME BARROOM
BRAWL BETWEEN TWO MEN OF EQUAL SIZE AND STRENGTH, THIS INFERENCE MAKES
SENSE.  (emphasis mine as it relates directly to your example)  How can
one feel endangered to the point of firing a gun at an unarmed man who
utters a death threat, then turns his back and walks out of the room?  One
cannot be certain of the gravity of the threat or his capacity to carry it
out.  Besides, one can always take the opprotunity to flee or call the
police. If he comes back and raises his fist, one can respond in kind if
need be.  These are the tacit assumptions that underlie the imminence
rule."

[Material deleted which then points out the fallacies of these assumptions
as they relate to battered women.  The major points:

1.  The long time duration of the violence increases the fear during any
single event over what one might expect in an isolated instance between
two strangers.

2.  The battered wife's ability to predict violence and the likely level of
violence due to her long experience with the abuser, i.e, unlike an
incident between strangers, there is an element of predictability in
family violence that is lacking in other situations.

3. The inability of the battered spouse to walk away from the situation.

4. The historic ineffectuallity of the police in cases of family violence
and wife battering.]

"Even accepting that a battered woman may be uniquely sensitized to danger
from her batterer, it may yet be contended that the law ought to require
her to wait until the knife is uplifted, the gun pointed or the fist
clenched before her apprehension is deemed reasonable.  This would
allegedly reduce the risk that the woman is mistaken in her fear, although
the law does not require her fear to be correct, only reasonable.  In
response to this contention, I need only point to the observation made by
Hubbard J.A. that the evidence showed that when the appellant and Rust
physically fought the appellant `invariably got the worst of it.' I do not
think it is an unwarranted generalization to say that due to their size,
strength, socialization and lack of training, women are typically no match
for men in hand-to-hand combat.  The requirement imposed in _Whynot_ that
a battered woman wait until the physical assault is `underway' before her
apprehensions can be validated in law would, in the words of an American
court, be tantamount to sentencing her to `murder by installment': State
v. Gallegos, 719 P.2d 1268 (N.M. 1986), at p. 1271.  I share the view
expressed by Willoughby in `Rendering Each Woman Her Due: Can a Battered
Woman Calim Self-Defense When She Kills Her Sleeping Batterer' (1989), 38
Kan. L. Rev. 169, at p. 184, that `society gains nothing, except perhaps
the additional risk that the battered woman will herself be killed,
because she must wait until her abusive husband instigates another
battering episode before she can justifiably act'.

[material deleted which discusses three theories of why battered spouses
stay with their batterer.  They include Walker's Cycle of Violence theory,
Ewing' Traumatic Bonding theory, and Seligman's Learned Helplessness.]

"I emphasize at this juncture that it is not for the jury to pass judgement
on the fact that an accused battered woman stayed in the relationship.  I
would also point out that traditional self-defense doctrine does not
require a person to retreat from her home instead of defending herself: R.
v. Antley (1963), 42 C.R. 384 (Ont.C.A.)  A man's home may be his castle
but it is also the woman's home even if it seems to her more like a prison
in the circumstances.

[material deleted]

"Obviously the fact that the appellant was a battered woman does not
entitle her to an aquittal.  Battered women may well kill their partner
other than in self-defense.  The focus is not on who the woman is, but on
what she did.  In `The Meaning of Equality for Battered Women Who Kill Men
in Self-Defense' (1985), 8 Harv. Woman's L.J. 121, at p. 149, Phyllis
Crocker makes the point succinctly:

`The issue in a self-defense trial is not whether the defendant is a
battered woman, but whether she justifiably killed her husband.  The
defendant introduces testimony to offer the jury an explanation of
reasonableness that is an alternative to the proecution's sterotypic
explanations.  It is not intended to earn her the status of a battered
woman, as if that would make her not guilty.'"

[rest of material deleted]

There you have it, Mike, the best legal thinking I have available on the
use of self-defense as an argument for the aquittal of battered women
facing charges of assault, aggravated assault, attempted murder, and
murder of her batterer.  In particular it refutes the idea that the legal
paradigm of two strangers in a barroom brawl is applicable in evaluating a
battered woman's use of the defense of self-defense in such cases.

I'll admit that attempting to summarize 50 pages into only three messages
may have resulted in leaving something important out, but I think I've
captured the heart of the legal problem as defined by the Canadian Supreme
Court.

On a personal note, my client was aquitted of the both the attempted murder
charge and the included charge of aggravated assault.  IMHO, justice was
served.

Peace from the Wilds of Calahoo,

Bill


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