In this instance, women are not treated as victims of abuse defending themselves but as criminals. Of course in some cases, abusive women kill their partners or family members and claim to have done so in self defense and the dead person cannot contradict those claims.
Part of the problem, according to investigative journalist Justine van der Leun, writing for The New Republic (TNR), is that the criminal justice system strips away the context and circumstances surrounding such crimes, leaving only a conviction that does not tell the whole story. In 2018, van der Leun started a project to provide that context and tell the complete stories of battered girls and women who are serving time as a result of their victimhood being criminalized.
Van der Leun’s project began ambitiously enough. She sent out 5,098 surveys to women in 45 state detention facilities in 22 states. But for various reasons associated with incarceration—mailroom censorship, fear of retaliation, legal concerns—only 608 women responded to van der Leun’s survey. Yet from this relatively small sample, the journalist discovered hundreds of victims of abuse, and potentially many more, who were convicted of murder or manslaughter and claimed it was in the course of protecting themselves from an abuser.
With assistance from Thania Sanchez, who currently works in the ACLU’s data and analysis department, van der Leun devised a 16-question survey assessing a woman’s background of abuse and the reasons for entering the criminal justice system.
The surveys revealed that many of the respondents endured years of systematic abuse. Over 60% reported physical, sexual, emotional or some combination of abuse prior to incarceration. Van der Leun believes that percentage could be much higher because 31% of respondents did not provide sufficient information to make a clear determination. Much of the abuse they encountered came from domestic partners: 43% said they were abused by their spouse, boyfriend, or girlfriend; and of those, 41% subsequently killed their abusers while claiming to be protecting themselves.
Van der Leun found that the respondents mirror the female incarcerated population as a whole: a majority were white but there was a disproportionate number of women of color. Their average age was 43; about 30% were serving life sentences—some without possibility of parole—with the rest serving an average of 55 years.
Abusive relationships, especially during the formative years of childhood, can adversely shape a woman’s future. Many of van der Leun’s respondents were abandoned or neglected as children. But the trauma of rape proved the most debilitating. The respondents reported being raped at gunpoint, while driven home from babysitting, and raped by grandfathers, fathers, stepfathers, brothers, uncles, cousins, and even mothers and sisters. Years of such abuse, along with a confluence of other factors beyond their control, can leave victims of abuse feeling ruined from ever getting a chance at life. “The stigma and shame of allowing myself to continually accept abusive behavior is stronger than the shame of being a convicted murderer,” recounted Kwaneta Harris, a respondent from Texas.
In many states, the legal system does not allow for “duress” as a valid defense. Based on British common law from the 1600s, the legal principle robs individuals of acting in self-defense, especially when it entails the death of a violent or abusive attacker. This leaves battered women in a no-win situation. Their only choice is to die at the hands of their abuser or prison, according to Carol Jacobsen, director of the Michigan Women’s Justice and Clemency Project. “That’s it. It doesn’t matter that he’s going to kill you.... You let that happen,” she said. In the past twenty years many states have amended their laws to allow victims of domestic abuse to present a battered person defense at trial.
Victims of abuse face other legal obstacles, too. Emotional abuse, because it is an extremely personal experience, is almost impossible to prove in court. “Lawyers say that the only correct battered woman when talking about self-defense is a dead one,” remarked Sue Osthoff, co-founder of the National Clearinghouse for the Defense of Battered Women. Moreover, prosecutors often portray female killers, even in self-defense cases, as cunning, posing as a victim to avoid punishment. It is of course possible that having killed someone, the defendant claims to have been battered to seek justification for the killing whether or not it was justified and it is not known how many batterers claim to be victims. In theory, the jury system is designed to sort these claims out and determine if homicides are self-defense or justifiable or criminal actions to be punished.
The reality is different. Over half of van der Leun’s respondents pleaded guilty to murder or manslaughter and received lengthy prison sentences. They did not allow a jury to weight o truth, or untruth, of their self-defense claims. The investigative journalist’s research found that most of those who plead guilty were represented by public defenders. A sobering 2008 report by the National Legal Aid Defender Association on Michigan’s indigent defense systems—where the majority of van der Leun’s respondents passed through—“studied sample counties and found none of their public defender services were constitutionally adequate.”
Van der Leun hopes that telling the respondents’ stories and having their voices heard can affect change in how victims of abuse are treated in the criminal justice system. The respondents themselves offered a variety of solutions, from decriminalizing poverty to protecting sexual and domestic violence victims to restorative justice initiatives. They want to put an end to the practice of criminalizing self-defense for battered women, for making survival a crime.
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