Battered Women and Sleeping Abusers: Some Reflections

Abstract

This Commentary focuses on one form of "non-confrontational homicide" - when a victim of abuse kills her abuser while he is asleep or otherwise in a passive condition. Should such a killing be treated as justifiable, excusable, or punishable?

The thesis of this paper is that the proposition that such a homicide is morally justifiable and that the traditional law of self-defense should be expanded to incorporate such cases is wrong-headed. Moreover, defense use of battered woman syndrome evidence obscures the real basis of any self-defense claim and tends to pathologize, rather than justify, the battered woman. Instead of expanding self-defense law to justify such killings, and rather than return to the old strategy of fitting such killings under the excuse umbrella or insanity or diminished capacity, criminal defense lawyers and legislative reformers should seek to defend non-confrontational battered-woman homicides on the excuse basis of duress as defined by the Model Penal Code.

Keywords: duress, justification

JEL Classification: K14, K42