'While Dangers Gather': The Bush Preemption Doctrine, Battered Women, Imminence and Anticipatory Self-Defense

Abstract

This article considers the role of self-defense in both international law and U.S. criminal law. Recognizing that some state courts engage in an overly rigid interpretation of imminence as it relates to self-defense by battered women, the article suggests that the international law concept of anticipatory self-defense (ASD) might provide a useful framework for the criminal law canon. In addition to acknowledging the shared moral foundation for self-defense in international and domestic law, the article asserts two additional reasons for making the comparison: first, terrorists act much the way abusers do, seeking to control, diminish, and destroy lives by unpredictable attacks on their victims; and second, terrorists and abusers attack repeatedly, creating fear and uncertainty in the victims about the nature, timing and degree of the next attack. Thus, the uncertain and repetitive nature of an abuser's attacks should permit juries to consider the danger to the battered woman in a more realistic temporal form than many courts currently allow.

In discussing the parallel between international and domestic law, the article distinguishes the concept of ASD from the Bush Preemption Doctrine, which some scholars believe stretches ASD beyond the breaking point. In making this comparison and rejecting the overly flexible concept of preemption, the article addresses the specific circumstances that should allow the invocation of ASD as a legitimate form of self-defense.

Keywords: Criminal, battered women, international, evidence, self-defense

JEL Classification: K1