We’ve all heard the stories, or seen them on the news. Battered women who, after years and years and years of horrible abuse escape death at the hands of their tormentors by killing them, only to end up in prison, convicted of murder or manslaughter.

Yet, according to the National Clearinghouse for the Defense of Battered Women, more than 100 women in 23 states have received parole or pardons in the last 25 years. Governors of states as diverse as California, Florida, Illinois New Hampshire and Ohio have seen fit to grant clemency to women who killed their partners. As I write this article, the news reports that Governor Arnold Schwarzennegger has paroled another battered woman.

Clearly, many people feel that there is some reason why these women don’t deserve to spend decades behind bars. I believe that it is an implicit recognition that what they did might not have been murder in the traditional sense, but rather self-defense.

Self-defense? If that were true, wouldn’t the women’s defense attorneys have raised that issue during their trials? Wouldn’t the juries have had an opportunity to examine each case thoroughly and acquit women who were acting in self-defense when they killed? No! Why not? Let’s examine that.

First, let’s talk about what happens to a person in captivity, such as a prisoner of war in a country that doesn’t abide by the Geneva conventions for treatment of prisoners. Let’s imagine a situation where a U.S. soldier is in such a prison . . . mistreated, psychologically and physically, for years. Just once, the guard gets careless. The prisoner finds the guard asleep, kills the guard and escapes. Is that killing justified? Certainly, if that was the only way that the prisoner could escape continued abuse, and almost certain death.

Why, then, is the situation of a battered woman any different? Consider a woman who has been physically severely hurt again and again for years, and has been subjected to continual psychological harassment as well. Why are her circumstances any different? If she has to kill her abuser to escape, to live, how is that different from the mistreated prisoner of war?

The first thing almost everyone will say is, “But she could have left. She wasn’t really a prisoner. Why didn’t she just leave?” Many abused spouses are prisoners, held captive by the knowledge that, if they try to leave, they or someone they love are likely to be killed. One woman I know stayed with her abuser for years, because he threatened to kill her whole family if she left, and she knew he was crazy enough to do so. Another woman stays with her husband because he has threatened to kill himself in front of her if she leaves; her first husband did that, and she does not believe she could live with the guilt if that happened again. Many women stay because their children would be endangered if they left. Most spousal murders happen just as a woman is planning to leave, or actually leaving the relationship. Staying is dangerous, but usually less dangerous than leaving, hence they stay.

So, if a battered woman senses that her batterer is suddenly getting worse, and sincerely believes that the next time he beats her he is really going to kill her, why isn’t it justified for her to use lethal force if necessary to save herself (and her children)?

The answer lies at the heart of the laws governing killing in self-defense. Those of you who have taken firearms courses concentrating on protection issues, or constant readers of this column know when lethal force is justified: there must be immediate and unavoidable danger of death o r grave bodily harm to an innocent person. We’ve parsed that before, word by word, and won’t do that again, but let’s concentrate on the “immediate” part. That word means that before you can legally defend yourself with lethal force, the danger you face must be imminent, generally within a few seconds, though some circumstances may stretch that to a minute or so. If your friend Bob says, “I’m going home to get my gun and then I’m going to kill you,” you can’t shoot Bob on the spot, because the danger isn’t immediate, it is far enough in the future to allow other responses to the threat.

The battered woman’s threat isn’t immediate, and that rules out the use of a self-defense case in court. But that feels wrong. Should it be fixed? How can it be fixed?

Those questions are addressed brilliantly by Cynthia Lee, a Professor at the George Washington University Law School in Washington, DC, in her latest book, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom.

Lee argues that self-defense law was developed by men, for situations that most men could imagine themselves in, such as protecting against a murderous stranger, protecting one’s home, getting into a fight with someone (“mutual combat”) that escalates to a lethal level, being solicited for sex by a gay man, or coming upon one’s wife in bed with another man. In all of those circumstances, men who have committed homicide have been acquitted because what they did was considered reasonable by other men who created the criminal justice system.

Sometimes the “Reasonable Man” standard is used, in effect to ask a jury whether a reasonable man in the situation of the defendant would have been right to do what he did. Just changing that terminology to “Reasonable Person” isn’t effective, because, in our society, maleness is the standard of reasonableness. It never occurred to the male lawmakers, lawyers, and judges that there were very different circumstances in which a person, a woman, might reasonably need to use lethal force.

Professor Lee sagaciously suggests a change to the criteria that define justified self-defense. In part, her suggestion reads as follows: “(1) S/he honestly and reasonably believes that his/her use of [deadly] force is immediately necessary to defend against a threat of unlawful [deadly] force, i.e., force for which there is no justification, and (2) His/her actions are also reasonable.”

Notice what this does. It makes the requirement that force is immediately necessary, not that the threat be imminent. This would cover many of the situations in which an abused woman kills her abuser, having no other way to save her own life.

Notice what this does NOT do. It does not make being battered an excuse to murder one’s abuser. It does not legitimatize “Battered Women’s Syndrome.” It does allow the whole circumstances of the woman’s situation to be taken into account for the jury to determine whether her belief was honest AND reasonable that she had to act when and how she did. It does not make the example of Bob’s threat a situation where lethal force can be used, because there is no immediate necessity to do so. It does not encourage battered woman to kill their spouses, because it requires significant justification for the belief that action was necessary, the timing of the action, and the reasonableness of the action.

I like this proposal. I like it a lot. I hope that Lee’s proposal gets a lot of attention in the legal community. This is one legal reform that should definitely go forward.

For those of you who want to read her book, it isn’t just about battered women. She addresses “crimes of passion” in which a man kills his wife and/or her lover, crimes of “gay panic” in which a straight man kills a gay man who he thinks is making overtures to him, and cross-race killings in which a member of a minority is killed (usually, but not always, by a member of the majority) in which unconscious racism might play a role.

Lee shows how the traditional doctrines of provocation and self-defense enable majority-culture defendants (men) to justify their acts of violence, while denying that justification to others. One of the methods she suggests for juries considering these cases is to gender-switch, sexual-orientation-switch or race-switch the situation. That is, to consider a case that is exactly the same except that, instead of a white shooter and a black victim, the races are reversed, or instead of a husband killing his cheating wife, consider a wife who killed her cheating husband in similar circumstances. It is a powerful yet simple way to shed light on some important legal issues. She argues strongly that “the jury is the best institutional actor to resolve questions of reasonableness and to decide whether the defendant should be convicted of murder, manslaughter, or nothing at all.” She goes on, “The problem is that most model jury instructions on self-defense fail to tell jurors that they must scrutinize the reasonableness of the defendant’s actions.”

Lee does not go so far as to advocate a “Reasonable Woman standard” for cases in which men’s and women’s experience and views are vastly different, and in which women are overwhelmingly the injured parties, such as spousal abuse, stalking, rape, sexual harassment, and spousal homicide.

Be aware, however, that, although Lee is a superb legal analyst, she is not deeply familiar with many of the practical issues that are often involved in self-defense with a firearm. She didn’t know, when she wrote the book, that it isn’t reasonable to expect someone to shoot at a less vital part of the body, such as a hand or foot. She didn’t know that sometimes it is reasonable that a person is shot in the back in legitimate self-defense, that multiple shots do not always mean excessive force, and that memory of critical incident events can be severely disrupted without any intention to deceive.

I’ve been in communication with her about these things, as has Attorney Lisa Steele (CT, MA) and Lee shows considerable interest in increasing her understanding of these issues. So, don’t hold her former lack of knowledge against her. Just appreciate the fact that she has been able to produce a needed, cogent argument for a useful change to the way we vie self-defense, and to make it readable by laypersons as well as legal professionals.

Battering is not a defense to murder. However, evidence of battering is relevant for traditional defenses that exist in our legal traditions. Battered women must be allowed to provide that evidence for juries to take into account.

Cynthia Lee is a strong new fighter for a reasonable and very necessary change in how self-defense is defined by the law, particularly when the person doing the defending is a woman. Let’s all do all we can to help her make the law catch up to the reality of the situations in which some women must fight for their lives.

This article was reprinted from Women&Guns Mar-Apr, 2004, Copyright © 2004, Lyn Bates