Chapter I

Domestic Violence, The Battered Woman Syndrome, and Women Who Fight Back

A. The Epidemic of Domestic Violence in America

1. Statistics

2. What is Domestic Violence?

B. Self-Defense and The Battered Woman Syndrome

1. The Origins of Battered Woman Syndrome?

2. Expanding and Alternative Views of the Battered Woman Syndrome

C. When Women Strike Back

1. Facts About Women Who Kill Their Abusers

2. Systemic Prejudice in Michigan

3. Why Didn't She "Just Leave?"







A. The Epidemic of Domestic Violence in America

1. The Statistics

• A recent FBI report on crime found that in 1995, 26% of all female murder victims were known to have been killed by husbands or boyfriends.1

• By the most conservative estimate, each year one million women suffer non-fatal violence by an intimate.2

• Between 22% and 25% of all visits by women to emergency rooms are for injuries inflicted by domestic partners.

In the State of Michigan, someone dies as a result of domestic violence every five days.3 The following accounts are excerpted from the Domestic Violence Project's report on "Michigan Domestic and Sexual Homicides: October 1996 to September 1997."4 (The full text of this document can be found in Appendix 2).

Yolanda Bellamy - Age 24. Detroit, MI

August 13, 1997, Yolanda was found dead in her home with 11 gashes across her head and neck. Scattered about her on the living room floor were the bodies of four small children who had also been stabbed and slashed to death. Reco Jones, age 22, Yolanda's ex-boyfriend, has been charged with five counts of homicide.

Lori Fossum - Age unknown. Eaton Rapids, MI

Found dead in the home of her ex-boyfriend July 23, 1997. Lori's parents found her body, and the body of Glenn Glazier still holding a gun. They had become worried about their daughter and were searching for her. She was engaged to another postal worker at the time of her murder.

Helen Howard - Age 47. Grand Rapids, MI

Died June 12, 1997 from a blow to the head. Her boyfriend, Andrew Cummings age 34, thought Helen was hiding his beer. She was on the telephone with one of her adult children when he hit her. She died several hours later. He is charged with involuntary manslaughter.

Lisa Juchemich - Age 31. Iron Mountain,, MI

Died February 5, 1997. After what a newspaper described as a "spat", Lisa Juchemich was stabbed by her husband Roger Juchemich, age 30, and shot in the back as she tried to escape from the house. He then shot and killed himself.

Donna Kay Kuster - Age 32. Marquette, MI

Killed by a single shotgun blast to the abdomen August 25, 1997, by her estranged husband, David E. Kuster, age 43. He sat in his pickup for over an hour waiting for her to return to her car after attending the first day of classes at Northern Michigan University. A Personal Protection Order was found in her purse. It was not enough to protect her from being stalked and murdered.

2. What is Domestic Violence?

Domestic violence is a pattern of abusive behaviors, accompanied by physical or sexual violence or the threat of such violence, used by one person to control his/her current or former intimate partner. The partners may be married or not married, gay or lesbian, living together, separated or dating. The victim of this abuse is referred to as the "survivor", because she in fact engages in many strategies that help her survive the abuse. The partner engaging in the abuse is referred to as the batterer or assailant.

Domestic violence occurs in many forms and at varying degrees of intensity. Some examples of abuse include: emotional abuse through mind games, name-calling, or put-downs; isolation from family or friends; economic abuse by withholding money or being prevented from getting or holding a job; actual or threatened physical harm; sexual assault; stalking; and intimidation.

Domestic violence occurs at about the same rate in gay and lesbian relationships as in heterosexual relationships.5 Victims of same-sex domestic violence may face unique abusive tactics such as the threat of "outing" - that is, revealing the victim's sexual orientation to family, neighbors or co-workers in cases where disclosure may have a negative impact on the victim. Gay male survivors of domestic violence are at greater risk of contracting AIDS.

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B. Self Defense and the Battered Woman Syndrome

1. The Origins of Battered Woman Syndrome

In her 1979 book, The Battered Woman, Lenore Walker, a forensic psychologist, identified the essential elements of what has become known as the "battered woman syndrome" (BWS). According to Walker, a battered woman is "a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights."

The BWS essentially refers to characteristics which appear in women who have been physically and psychologically abused by their husbands or partners. Walker described a pattern of cyclical violence.

The typical pattern of violence consists of three recurrent phases of abuse; a tensions building stage, characterized by minor abuse; an acute battering stage, characterized by uncontrollable explosions of brutal violence; and a loving respite stage, characterized by calm and loving behavior of the batterer, coupled with pleas for forgiveness. The continued cycle of violence and contrition results in the battered woman living in a state of learned helplessness...The battered woman lives with constant fear, coupled with a perceived inability to escape. Eventually, she comes to believe that her only options are enduring the abuse, striking back, or committing suicide. 6

Using Walker's analysis, in order to be classified as a battered woman, the woman must go through the battering cycle at least twice. According to Walker's theory, battered women suffer from "learned helplessness", whereby the psychological stress of living in a constant state of fear inhibits her ability to perceive the possibility of escape. She becomes submissive, compliant, passive, and meek. All her energies are focused on avoiding the next attack, and when that has failed, living through it.

2. Expanding and Alternative Views of the Battered Woman Syndrome

Not all researchers, psychologists and commentators accept Walker's conception of the battered woman. Professionals working within the domestic violence field have expressed concern that Walker's theories essentially imply that battered women are mentally ill.7 (See Chapter IV). As well, the concept of learned helplessness may engender stereotypical pictures of a battered woman, which then are used to exclude battered women who perform competently in other areas of life. General acceptance of the concept of learned helplessness may make it difficult to convince a jury that a woman who runs a business or is organized and capable in other areas suffers from the BWS.8

Walker's conception of battered women has been challenged on the ground that it is inapplicable to non-white women.9 According to Sharon Allard's article, Rethinking the Battered Woman Syndrome: A Black Feminist Perspective, "battered woman syndrome relies on prevailing gender characterizations of dominant white society."10 In support of her argument, Allard points to the experiences of Hedda Nussbaum and Geraldine Mitchell, both of whom claimed to have been battered by their companions, and both of whom were charged in the battering death of a child. Charges against Nussbaum, a middle class white woman, were dropped when she agreed to testify against her batterer. Mitchell, a poor black woman, received no such deal. She pled guilty to manslaughter.11

Allard contends that this difference in treatment might be explained by the fact that BWS theory is based on stereotypical behaviors of white women. According to Walker, women experiencing learned helplessness are passive, gentle, submissive, emotional, and dependent. The BWS is of limited usefulness to black women, according to Allard, because of pervasive stereotypes, reinforced by media, that black women are domineering, sexually aggressive, assertive, hostile, immoral, and physically stronger than white women. These images make it difficult for judges and juries to attribute black women's acts of self-defense to "learned helplessness". Allard's argument is further supported by the fact that the ratio of black women to white women convicted of killing their abusive partners is 2:1. 12

Finally, using only the theory of BWS ignores the context of the battered woman's life within which the abuse is occurring. Some have suggested an alternative theory, the survivor theory, which recognizes "that battered women respond to abuse with help-seeking methods that are largely unmet and that women increase their help-seeking as the danger to themselves and their children increases." 13 All too often, the context includes repeated failures by various societal institutions to provide meaningful assistance to survivors, which can lead survivors to believe that they have no recourse but to protect themselves in whatever way they can.

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C. When Women Strike Back

1. Facts about Women Who Kill Their Abusers

• Currently, there are approximately 2,000 battered women in America who are serving prison time for defending their lives against their batterers. 14

• As many as 90% of the women in prison today for killing men had been battered by those men. 15

• Women charged with the death of a mate have the least extensive record of any people convicted. 16

• The average prison sentence for men who kill their intimate partners is 2 to 6 years. Women who kill their partners are sentenced, on average, to 15 years. 17 A pair of Maryland cases vividly illustrates this inequality in sentencing. 18 In one case, a judge in Baltimore County, Maryland sentenced Kenneth Peacock to 18 months for killing his unfaithful wife. The very next day, another judge in the same county sentenced Patricia Ann Hawkins to three years in prison for killing her abusive husband. Significantly, the prosecutor in the Peacock case requested a sentence twice as long as the one imposed, while the prosecutor in the Hawkins case requested one-third of the sentence imposed.

2. Systemic Prejudice in Michigan

In 1989, the Michigan Supreme Court's Gender Task Force issued a Final Report on Gender Issues in the Courts. The report concluded that:

• Women defendants who killed abusive partners are treated unfairly by the criminal justice system due to a lack of understanding of the effects of abuse. Specifically, battered women are blamed when they do not leave the relationship.

• Self-defense and the use of expert testimony are not used consistently in defending women who killed abusive partners.

• Evidence of past violent acts is not consistently raised or admitted.

• The instructions that a woman has no duty to retreat from her home in the face of an attack is not consistently given.

A survey of post-1980 cases handled by the Michigan Office of the State Appellate Defender found that Michigan prosecutors consistently overcharge female defendants in victim precipitated homicides. 19 This survey also found that when battered women kill their spouses, judges often refuse to follow appropriate jury instructions and deviate from sentencing guidelines. 20

3. Why Didn't She "Just Leave"?

This frequently asked question has special force when it is directed at a woman who has killed her abusive partner. Prosecutors typically point out that instead of killing her partner, a battered woman could have stayed with family, filed a complaint, gone to a shelter, or called the police. These arguments demonstrate a lack of understanding of the reality of a battered woman's situation. To understand this reality, one must begin with the plight of battered women in a historical context.

According to Sir William Blackstone, when a husband kills his wife, it is comparable to killing a stranger; but when a wife kills her husband, it is comparable to treason by killing the king. 21 In 1874, a North Carolina court became the first court to limit a man's right to beat his wife. Still, that court held that unless he beat her nearly to death, the law should not become involved.

Throughout most of this century, unfortunately, domestic violence has been ignored or openly tolerated by legal actors who have looked upon domestic violence as a family matter. Judicial insensitivity to and disrespect for battered women accounts for some of the failure of the law to protect women. In 1986, a judge in Boston granted a restraining order against a man who allegedly choked and beat his wife. Before granting the order, he told the husband, "You want to gnaw on her and she on you, fine, but let's not do it at the taxpayer's expense." He also reprimanded the wife for "wasting the court's time." The wife was later murdered by her husband. 22

In more recent times, police traditionally turned a blind eye to domestic violence. Some police dislike responding to domestic violence complaints because such situations are often -- and erroneously -- perceived as particularly dangerous for the officer. Police also may feel that making arrests is a waste of time when women decline to press charges. Prior to recent reforms, the responsibility for prosecution was placed on the survivor, despite the fact that prosecution could proceed without her participation, through introduction into evidence of 911 tapes, police testimony, medical records, and other witnesses' accounts. 23

In Michigan, more recent legislation has helped to strengthen the law enforcement response to domestic violence. 24 Legislative reforms and changes in prosecutorial policies have helped to take the responsibility for pressing charges out of the hands of victims. In some cities and counties in Michigan, there are special prosecution units for domestic violence cases. Police are being required to develop preferred arrest policies. Penalties for crimes of domestic violence have increased. 25

Even today, however, there remain systemic impediments to battered women seeking to flee their assailants. For example, in Michigan, a significant number of counties retain practices which commonly discourage prosecution, such as: requiring the victim to sign the complaint, requiring a "cooling off" period, requiring corroboration of the victim's account, and issuing peace bonds. 26 Police officers sometimes fail to prepare reports and collect evidence which would enable the prosecutor to charge and try the batterer without the survivor's participation as a witness. And prosecutors in many counties still routinely dismiss criminal cases at trial when the survivor does not appear, rather than trying those cases with other evidence.

In addition, battered women's shelters are often full to capacity. Personal protection orders are often violated by assailants and not enforced by police or courts. Police in some jurisdictions may not respond to emergency calls, or may not respond in a timely fashion. Assailants routinely are released after arrest on domestic violence charges, given low bonds and without restrictive bond conditions which prohibit their contact with the survivors.

Significantly, "just leaving" is often not an effective solution for the battered woman. Leaving the assailant is not a guarantee that the violence will stop. In fact, the risk of harm is greater at the time the battered woman leaves. A woman is more likely to suffer injury or death at the hands of an abuser after she has left him. 27 However, most battered women do try to leave. On average, a battered woman leaves her assailant 5-7 times before she is able to leave for good.

Gay and lesbian victims of domestic violence may face unique barriers to escaping abusive relationships. The victim may be uncomfortable reporting domestic violence to the police, or obtaining an order of protection against a batterer. Police and other service providers frequently downplay the violence, calling it a "cat fight" if it involves a lesbian couple, or "mutual battering" if it involves a gay male couple. Some domestic violence service providers do not effectively support, advise or advocate for gay and lesbian survivors. 28

Several of the women who were selected by the Michigan Battered Women's Clemency Project were sentenced in the late 1970s and early 1980s when the public was still relatively uninformed about the epidemic of domestic violence. At that time, assaults on women were systematically ignored by police, courts, doctors, and social service agencies. Domestic violence shelters were few and far between. 29 "Just leaving" for these women has never been so easy as some prosecutors suggest.

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Footnotes

1. Family Violence Prevention Fund. See: http://www.igc.apc.org/fund/materials/speakup/news197.htm

2. Bureau of Justice Statistics Special Report: "Violence Against Women. Estimates from the Re-Designed Survey" (NCJ-154348)(1995) p.3.

3. Janet Findlater and Dawn Van Hoek. Prosecutors and Domestic Violence: Local Leadership Makes a Difference. 73 Mich. B.J. 908 n.1 (1994).

4. Domestic Violence Project/SAFE House. See: http://Comnet.org/dvp/victims.html

5. New York City Gay and Lesbian Anti-Violence Project. See: http://www.avp.org

6. See People v Wilson, 194 Mich App. 519, 603 (1992).

7. Donald Downs. More Than Victims: Battered Women, the Syndrome Society and the Law. University of Chicago Press: Chicago (199-).

8. Mira Mihajlovich. Does Plight Make Right? The Battered Woman Syndrome, Expert Testimony and the Law of Self-Defense. 62 Ind. L.J. 1253, 1257 (1987).

9. Sharon Allard. Rethinking Battered Woman Syndrome: A Black Feminist Perspective. 1 UCLA Women's L.J. 191 (1991).

10. Id. at 196.

11. Id at 192.

12. Id at 207, n. 19.

13. Mary Ann Dutton. Battered Women's Strategic Response to Violence: The Role of Context. Survivors, Perpetrators, and Their Children, Chapter 7.

14. National Clearinghouse for the Defense of Battered women. See: http://www.cybergrrl.com/planet/dv/stat/statbwkill.html

15. Allison Bass. "Women Far Less Likely to Kill than Men; No One Sure Why." The Boston Globe. February 24, 1992. p.27.

16. Angela Browne. 11 When Battered Women Kill. The Free Press. 1987.

17. National Clearinghouse for the Defense of Battered Women. See: http://www.cybergrrl.com/planet/dv/stat/statbwkill.html

18. Wendy Keller. Disparate Treatment of Spouse Murder Defendants. 6 S.Cal. Rev. L. & Women's Stud. 255 (1996).

19. Dawn Van Hoek. Unpublished manuscript on file at the National Clearinghouse for the Defense of Battered Women.

20. Id.

21. See: Mihajlovich (citing Margolick. "The Trials of Battered Wives Who Kill." Chi. Daily Law Bull. Feb.3, 1944. p.3).

22. See: Keller at 267 (citing Eileen McNamara. "Judge Criticized After Woman's Death." Boston Globe. Sept. 21, 1986 p.1).

23. See: Findlater and Van Hoek, note 3, supra at 908.

24. 1994 PA 64-65.

25. See: Findlater and Van Hoek at 910.

26. See: Findlater and Van Hoek at 910

27. See: discussion of "separation assault" in Chapter X.

28. New York City Gay and Lesbian Anti-Violence Project. See: http://www.avp.org/

29. The first domestic violence shelter in the country opened in 1974.



