“So why didn’t she leave?” This common question assumes “that the family [or shared]
home is not her home but his and he has the right to drive her out of it” (Gillespie qtd. in
Snyder). Several phases of historical evolution have resulted in what we’ve come to know as
“self defense”. This evolution begins with “duty to retreat”, to the “Castle Doctrine”, and
eventually becomes “Stand Your Ground”. While these roots can be traced back as far as the
Roman Empire, the first law protecting the right to defend oneself against another was the Castle
Doctrine in 1604. Before that, the “duty to retreat” principle required people to retreat at all
times, even when under attack. In 1604, in response to an invasion of the King of England’s
castle, the Castle Doctrine arose as an exception to the previous principle. Under this exception
the duty to retreat did not apply to a man’s “castle”, which includes his land and wife and
children who were his property. English Common Law principles shaped United States
governmental and legal systems, including self defense law. The original the Castle Doctrine
principle became part of US self defense law, determining who holds the right to lethal self
defense (Mineo). Stand Your Ground laws, developed from previous self defense law, have
become prevalent across the US since 2005 when Florida was the first to enact them (Snyder).These laws provide “that you can ‘stand your ground’ against an attack wherever you may be,
even outside your home” (Light qtd. in Mineo).
Intimate Partner Violence (IPV) refers to behavior “that causes physical, sexual or
psychological harm, including acts of physical aggression, sexual coercion, psychological abuse
and controlling behaviours. It covers violence by both current and former spouses and partners”
(World Health Organization qtd. in Snyder 19). The Department of Justice defines “intimate
partner” to include instances where the victim was a boyfriend/girlfriend, common-law spouse,
spouse, ex-boyfriend/girlfriend, or ex-spouse (Bureau of Justice Statistics). US laws and
regulations regarding these doctrines and concepts vary by state; because of this, self defense
rules and their application may differ around the country.
The origins of self defense law in the United States are incredibly biased and limited.
They have not been updated in a manner that provides sufficient protection for women who use
lethal force for self defense in IPV situations. Self defense law as is, in the US, fails women in
IPV situations.
Self defense law has evolved considerably over time, with more modern roots dating
back 4,000 years. The English Common Law Principles set the original standard for United
States legal systems. The original English common law doctrine stated “‘duty to retreat’...
[meaning] that you were obligated to retreat in the face of an attack” (Gorin). This was then
updated to the Castle Doctrine which was “established by Sir Edward Coke in his The Institutes
of the Laws of England” (Gorin). The Castle Doctrine states that “you do not have the duty to
retreat when you’re in your home because ‘a man’s home is his castle’” (Light qtd. in Mineo).
These origins are problematic as a foundation for modern law due the fact that it is “tethered to
colonialism, legalized slavery, and the legal doctrine of coverture”, which determines thatmarried women were not allowed to own property since their “rights were literally ‘covered’ by
their husbands” (Light qtd. in Mineo). After modernization, “[w]hen people in the U.S. said, ‘[a]
man’s home is his castle,’ what they actually meant was, “‘[a] white, property-owning man’s
home is his castle,’ and he’s allowed to fight back” (Light qtd. in Mineo).
At this time, defensive homicides were typically separated into categories: justifiable and
excusable. “Justified homicides, for which no guilt was assigned, were private action on behalf
of the King for the public good, like killing a thief or a felon” while “excusable homicides
included those committed in private self-defense and required a petition for pardon from the
xfqKing” (Miller qtd. in Gillis 5). Duty to retreat was overturned by the Supreme Court in 1921,
“holding that the appellant had no duty to retreat when confronted with a felonious assault in a
place where he had a right to be” (Brown v. United States, 256 U.S. 335 (1921) qtd. in Gillis 9).
When these laws were being adopted and developed in US law, self defense laws were
written by wealthy white landowning men, who had wealthy white landowning men in mind
when determining legislation. In the modernization of the Castle Doctrine, California Penal Code
198.5 states that
“[a]ny person using force intended or likely to cause death or great bodily injury
within his or her residence shall be presumed to have held a reasonable fear of
imminent peril of death or great bodily injury to self, family, or a member of the
household when that force is used against another person, not a member of the
family or household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or had reason
to believe that an unlawful and forcible entry occurred” (Gorin).This law outlines the idea of an “intruder” which “does not include people who live in the home,
such as family members” which would determine the homicide “justifiable” (Gorin). This idea of
“intruder” is problematic in IPV situations, especially pertaining to physical abuse, because the
abuser and abused would likely live or “have a reason” to be in the home. “Stand Your ground”
laws, developed from previous self defense law, have become prevalent in states across the US
since 2005 when Florida was the first to enact such law (Snyder). As typically drafted,
legislation typically does not apply to violence inside the home, where the parties would all have
the right to be there. This law and the Castle Doctrine hold similar principles that “differ
primarily in scope. The Castle Doctrine permits individuals to use reasonable force, including
deadly force when protecting themselves from intruders in their homes” (Gorin). As of 2024,
thirty states in the US have instated Stand Your Ground laws and eight others “allow for ‘stand
your ground’ defenses in practice” (Light qtd. in Snyder).
Self defense laws contain three core tenets: imminence, reasonableness, and
proportionality. While we do not know the perspectives of all those involved in interpreting the
case or decision-makers who will determine the defendant’s fate, we do know that the defendant
is more than likely to be a woman. These tenants determine that “[t]he threat of great bodily
harm or death to the victim must be imminent; her actions must be reasonable, given the
situation; and her response to the violence or the threat of violence must be proportional”
(Snyder).
Imminence tends to be the most complicated factor in IPV cases. The definition of
imminence applies to a particular situation “that counts as self-defense in a domestic violence
[now referred to as IPV] situation: an abuser coming for a victim and an instant reaction”
(Snyder). This is the least likely circumstance under which the defensive act would occur.Women have been conditioned by their past experiences to not react at all in situations where
they are in peril at the hands of their abuser. First of all, in IPV situations women are in an
“intimate” relationship with their abuser; their emotional connection to this person may stop
them from attacking. They are put in survival mode; they understand that fighting back would
likely escalate the situation. The only time where they are not increasing their vulnerability is
when they are not actively under attack.
Assumptions are too often made about details surrounding facts. Victims of IPV are in a
unique position to all other people who are victims of violent attacks. The “intimate” relationship
a victim has with their abuser means that they can see signs and know how their partner is
feeling or will act based on the history of their relationship. The parameters for what is deemed
“reasonable” by the court does not account for the fact that when abused can recognize that “one
night he’s quiet and subdued when he’s usually loud” or maybe “ he orders her to get the kids or
leave the kids” or anything out of the ordinary (Snyder). She experiences this break in pattern as
blaring alarms that something is wrong; her intuition senses a shift, but what is the probability
that a court will deem this reasonable as “strangers who exist outside this couple’s specific
emotional, psychological, physiological, and physical reality?” (Snyder). The director of the
Incarcerated Survivors project at the Ohio Domestic Violence Network, Nancy Gigsby explains
“‘I think she takes the gun because it’s evidence of how terrified she is of him’… [b]ut the law
‘thinks… [it's because] she’s made a premeditated decision to take his life.’” (qtd. in Snyder).
The law does not comprehend or at least effectively reflect in legislation “a situation in which
she [the abused spouse] is attacked, repeatedly, with increasing severity by …a person whose
demeanor, body language and strength are as familiar to her as her own” (Snyder).The law “imagines two parties of equal strength, size, weight and physical capability”
(Goodmark qtd. in Snyder), which is highly unlikely in IPV cases. These circumstances
complicate the determination of the point at which the law allows the abused to fight back. “Can
she reach for a weapon like a gun if he does not have one or if his weapon is a common
household item — tools, a bungee cord, duct tape, a pillow?” (Snyder). While we do not know
the perspective of all the players included in interpretation of the case or decision-makers who
will determine the defendant’s fate, we do know that the defendant is more than likely to be a
woman. These tenets do not account for the nuance of the physical and emotional relationship
between people in IPV circumstances, where proportionality is nearly impossible to determine.
This nuance is physical and emotional, which laws have a history of ignoring in favor of men.
Abuse comes in many forms: physical, sexual, and emotional/psychological. Researchers
estimate that up to 90% of incarcerated women with charges for killing men have been, at some
point, been abused by those men (Bass qtd. in Gillis 1) . Each of these types of abuse can take
many forms. The following graphs represent information based on a study titled “Fatal Peril” by
Debbie Mukamal, Andrea N. Cimino, Blyss Cleveland, Emma Dougherty, Jacqueline Lewittes,
and Becca Zimmerman. This sample includes 649 people, “representing 58.2% of the population
of people incarcerated for murder or manslaughter in California’s women’s prisons” (Mukamal et
al. 9) f. Of these people, 537 or “...83.7%... provided narrative responses” (Mukamal et al. 9).In addition to the statistics included in the chart, of reporters having been strangled “78.1% (217
of 278) were choked more than once or had passed out, blacked out, or felt dizzy, suggesting a
probable traumatic brain injury (TBI)” (Mukamal et al. 10). Finally, “58.2% reported that the
physical violence increased in frequency and severity the year before the killing” (Mukamal et
al. 10).Additionally, “70.7% reported that their partner followed or spied on them, left threatening
messages, destroyed their things, or made unwanted calls to them in the year before the killing”
and “24.4% reported their partner threatened to harm the respondent’s children the year before
the killing” (Mukamal et al. 10). These circumstances increase the relation between increasing
abuse and the climax, the killing.
“There were 625 respondents in a relationship the year prior to their incarceration who
completed the Composite Abuse Scale” (Mukamal et al. 9) included in the study. Among them,
“74.2% of respondents… were ‘IPV positive’” and “[o]f the 464 IPV positive respondents,
87.1% were physically abused, 72.2% were psychologically abused, and 72.0% were sexually
abused in the year before the offense” (Mukamal et al. 9). And of those IPV positive respondents
“66.4%... were in extreme danger of being killed by their partner the year before the offense,
according to their Danger Assessment (DA) score” (Mukamal et al. 9). The Danger Assessment
is “used to determine someone’s risk of dying at the hands of an abusive partner” (Snyder). This
tool is theoretically used globally, helping to predict the level of risk IPV victims of being killed
by their partners. With a “weighted scoring system, the Danger Assessment asks questions about
acts of abuse, nonfatal strangulation, beatings while pregnant, access to guns, threats of suicide
or murder and other indicators of lethality” (Snyder). The danger assessment is not typically
used “as stand-alone evidence in court in the United States”; however, the information it
provides is crucial. It helps answer the question: “how potentially imminent was her death, and
how reasonable were her actions in light of this?” (Snyder).
These abuses are poorly accounted for within the parameters of law. More than 12,000
women are incarcerated in the US on homicide charges, “a broad category that ranges from
manslaughter to first-degree murder. We do not know and have never known how many of thesewomen killed someone who was abusing them” (Snyder) and it is “estimated that one in three
women will experience rape, physical violence, and/ or stalking by an intimate partner in their
lifetime” (National Network to End Domestic Violence qtd. in Gillis 3 ). The likelihood that
incarcerated women, any woman, has experienced at least one of these traumas in her lifetime is
high.
If the defendant does not satisfy all necessary standards to be determined as having acted
in full self defense, she may qualify for partial defense. “A defendant who successfully argues
partial self-defense commonly receives a manslaughter conviction for the killing instead of a
murder conviction” (Gillis 6), which lessens, but does not rid the accused of her charges. As seen
with many qualifying factors, the standards that must be met to receive partial self defense
charges are often marginally missed, leading to significant jail time and life disruption. This is
where the core tenets come into play, posing issues for women and their credibility. A lack of
imminence, “not actively attacking the defendant during the killing and that the killing occurred
during a brief lull in the violence” (Hodell et al. qtd. in Gillis 4) becomes an insurmountable
hurdle for many women seeking acquittal and absolvement in these situations.
Some may argue that these laws have been updated since their origins to equally include
all people under law regardless of race, gender or other factors. For example, modern legislation
includes gender-neutral language, and shelter and victims services have become far more
comprehensive, reducing shame around IPV . All of these considerations might make IPV victims
“less inclined to resort to violence” (Snyder). However, due to their biased origin and persistent
bias prevalent in the United States legal system–despite the theoretically neutral language of
legislation– laws are still applied in ways that reflect historical or ongoing bias. Research by Dr.Caroline Light, author of “Stand Your Ground: A history of America’s Love Affair With Lethal
Self-Defense” concludes that
“[d]espite the more gender-neutral phrasing of ‘stand your ground,’ these laws still view
the world through a male perspective…[because they] ‘emphasize the need to protect
citizens from threats outside the home while ignoring the fact that intimate partner
violence and, more broadly, domestic violence, have been and remain the most common
forms of violence against women.’ To stand one’s ground, she wrote in her book, remains
‘a masculine, cisgender act’” (qtd. in Snyder).
Due to the traumas they have endured, “IPV survivors are at increased risk for
depression, anxiety, PTSD symptoms, and suicide” (Mukamal et al. 79). The law does account
for some effects of PTSD classified as “Battered Woman Syndrome”. Psychologist Leonore
Walker coined this term in her book, “The Battered Woman”. Walker describes a situation where
“an abused woman is unable to escape her abuser because of… ‘learned helplessness’”, a
psychology term that explains that “victims of extreme abuse eventually become so devoid of
agency, they were unable to escape their violent situations when change was available” (qtd. in
Snyder). These ideas caused some change in the 1990s, allowing women to testify that they
suffered from and acted in a way that was a result of learned helplessness. This allowed women
to present a slightly fuller idea of their reality when testifying in court. However, in action, this
has very limited impact and can be weaponized by the court to claim that a woman was acting
unreasonably because of Battered Woman Syndrome (Snyder). Additionally, the term itself
implies “something wrong with the women who try to use it in court… [it] relieves the accused
woman of the stigma and pain of criminal punishment only if she embraces another kind of
stigma and pain” (Gillis 21) that surrounds mental health disorders.“Fatal Peril” determines that “[t]he criminal legal system inconsistently screens for IPV
and should make broader use of IPV screenings like the Composite Abuse Scale and lethality
assessment tools like the Danger Assessment” (Mukamal et al. 13). Their study was “the first
time both the Composite Abuse Scale and Danger Assessment were used with a population who
is incarcerated” (Mukamal et al. 13). This demonstrates the little effort that the legal system has
made to understand the nuances that these tools provide. The United States has a history of
overgeneralizing groups of people, making laws that directly impact them without proper studies
to guide reasoning. In 1969, a study by the National Commission on the Causes and Prevention
of Violence “recognized that women were significantly more likely than men to have been
defending themselves when committing homicide. But because criminologists for decades
focused their research on men, who commit a majority of violent crimes, we still know very little
about these women — what their circumstances were and what self-defense looked like for
them” (qtd. in Snyder).
Women are the majority of IPV victims, which means these laws often fail women,
condemning them to lifetimes of imprisonment as result. Self defense law does not account for
imbalances between men and women; legislation “imagines two parties of equal strength, size,
weight and physical capability” (Goodmark qtd. in Snyder), which is regularly not the case. Like
their origins, self defense laws in the United States are biased and limited. Neither the legislature
nor the courts have updated these laws in a manner that provides sufficient protection for women
who use lethal force for self defense in IP situations.Works Cited
Gillis, Caroline. “Domestic Violence and Self-Defense: Respecting Women's Autonomy by
Creating a Woman-Centered Law of Self-Defense.” Thesis. American University
Washington College of Law, 2020.
Gorin, Dmitry.
“The "Castle Doctrine" in California - Penal Code 198.5 PC.” Eisner Gorin LLP .
August 25, 2023. www.keglawyers.com/castle-doctrine-penal-code-198-5.
Mineo, Liz. “The Loaded History of Self Defense.” The Harvard Gazette. Harvard Public Affairs
and Communications. March 7, 2017.
.news.harvard.edu/gazette/story/2017/03/the-loaded-history-of-self-defense/.
Mukamal, Debbie et al. “Fatal Peril: Unheard Stories from the IPV-to-Prison Pipeline.” Stanford
Criminal Justice Center. Revised ed. September 4, 2024.
law.stanford.edu/publications/fatal-peril-unheard-stories-from-the-ipv-to-prison-pipeline/.
Smith, Erica L. “Female Murder Victims and Victim-Offender Relationship, 2021” Bureau of
Justice Statistics. Bureau of Justice Statistics. December 2022
bjs.ojp.gov/female-murder-victims-and-victim-offender-relationship-2021
Snyder, Rachel Louise. “Who Gets to Kill in Self Defense?” The New York Times. The New York
Times. September 4, 2024.
www.nytimes.com/interactive/2024/09/04/opinion/women-kill-self-defense.html.
Skylar, what a fantastic paper and an incredible accomplishment. You succeed in taking an enormous
and complex topic and taking your reader through each step from historical context (just shocking
actually) to legalities to current consequences. The multiple drafting and focus on formal, academic
language has elevated this paper. You have done a good job of presenting your topic and anchoring
your work throughout; this was especially appreciated when you got into such specific historical and
legal detail. Evidence was well culled and well presented, and I think adding the counter argument
paragraph added a lot to your argument. An area for improvement would be in the listing style of
each paragraph. Transitions from idea to idea would make this smoother and the mini paragraphs,
some only 2 or 3 sentences long, were not my favorite, adding to the choppy flow; there's not muchto say as this was a personal choice on your part, but it creates confusion. I also came across a few
quotations that would have benefitted from more context, this relates to that listing style of writing
that presents information in short bursts instead of smoothly flowing from one to the next, and
some repetition. Plus block quotes that needed to be formatted properly. I am sure this occurred
because of the enormity of the information you were trying to synthesize. Overall, I could read this
paper in any publication. There was really really good work done; I learned a lot reading this essay
and enjoyed every minute of it.