Volume 2.1 - Crime and Punishment- Fall 1997

Title: Battered Women, Sleeping Abusers, and Criminal Responsibility

Author: Joshua Dressler

Abstract: According to ordinary self-defense law, a person may only kill an aggressor if she reasonably believes that she is combating an imminent deadly threat. Therefore, a battered woman who kills her abusive partner while he is asleep or otherwise in a passive condition (a "nonconfrontational" homicide) cannot claim self-defense. This rule is breaking down. Increasingly, states permit battered women to introduce evidence of "battered woman syndrome" and claim that, as a result of the syndrome, she reasonably believed that the sleeping abuser represented an imminent threat to her life.

This trend, although understandable, is conceptually muddled and unwise. It is muddled because evidence that a woman suffers from a syndrome -- a set of abnormal mental symptoms -- converts a justifiable (rightful) homicide into (at most) an excusable (wrongful, but not blameworthy) homicide. The syndrome evidence pathologizes the woman. But, even if this were not so, the act of killing a person while he is asleep should not be justified by our law. None of the bases for justification that are advanced -- that the abuser has forfeited his right to life, that the woman is a justified vigilante, or that she is merely asserting her right of autonomy -- withstands close scrutiny.

Some nonconfrontational homicides, however, should be excused (rather than justified), but without use of syndrome testimony. Battered women should be able to assert a duress-type defense, the basis of which is that the homicide is wrongful, but that the actor did not have a fair opportunity to obey the homicide laws.

About the Author: Joshua Dressler received his B.A. and J.D. degrees, each with honors, from UCLA. He is a widely quoted, internationally recognized scholar in the fields of criminal law and criminal procedure. Currently a professor of law at McGeorge School of Law, University of the Pacific, he has also taught as a visitor or in continuing status at the law schools at University of California, Berkeley; Wayne State University; UCLA; University of Michigan; University of California, Davis; University of Iowa; and Hamline University.

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