Battered wives, battered justice.

BATTERED WIVES, BATTERED JUSTICE

THE RULES of self-defense, so long a settled part of our law, may be changing for "battered" women who have killed their husbands. Some courts, relying on expert-witness testimony from feminist psychologists, have enlarged the defense to allow acquittals in cases which otherwise would have ended in manslaughter or murder convictions. In Ohio, outgoing Governor Richard Celeste commuted the sentences of 25 battered women who had finally attacked their husbands, and other governors are thinking of following suit.

The prosecution of Janice Leidholm is illustrative. Janice was charged with murdering her husband, Chester, in the early morning hours of August 7, 1981, at their farmhouse near Washburn, North Dakota. The Leidholms had, in the words of the north Dakota Supreme Court, a volatile marriage, "filled with a mixture of alcohol abuse, moments of kindness toward one another, and moments of violence." The homicide itself followed a rather tepid alcoholic argument--"Chester was shouting and Janice was crying"--during which Chester prevented Janice from calling the police by "shoving her away and pushing her down." Eventually the quarrel subsided and they went to bed once Chester was asleep, Janice arose, secured a butcher knife, and in a few minutes, "from shock and loss of blood," Chester was dead.

An inventive lawyer might have tried to jiggle these facts into a temporary-insanity defense, a suspect diagnosis often employed to camouflage ordinary rage in appealing forensic garb. (It was used successfully in the famous "burning bed" case, where the defendant poured gasoline around her husband's bed and set fire to him as he slept in alcoholic stupor.) Instead, defense counsel advanced a theory that should have been curtly dismissed by the court. He argued self-defense "in reaction to severe mistreatment" by Chester over the years. Under longstanding legal principles, this was no defense. For one thing, evidence of Chester's past brutality would be inadmissible--Chester was not on trial--unless it illuminated the events immediately preceding the killing. If Janice could show that as a result of past beatings, she had learned to see signs of impending attacks tht would not be apparent to an untutored observer, only then could she detail her victimization for the jury. But since even the most imaginative attorney could not argue that Chester, asleep, was mounting an attack, Janice was not entitled to argue self-defense.

Inexplicably, the trial judge ruled otherwise. He both admitted the evidence of prior abuse and instructed the jury on self-defense. More surprising, on appeal the North Dakota Supreme Court not only agreed but, in reversing Janice Leidholm's manslaughter conviction, held that on retrial she was entitled to a far more favorable instruction on the law of self-defense. As the instruction had been given at her trial, the jury was to decide whether Janice had behaved reasonably, like a person of ordinary prudence and circumspection. That was wrong, the North Dakota Supreme Court held. The true test was whether she had acted reasonably according to her standards.

Reasonable Violence?

THIS IS no minor distinction. Since Janice depicted herself as having little self-esteem, and being so dependent upon Chester that she was unable to leave him, the test--what might be called "the reasonable battered wife" standard--is a contradiction in terms. It makes no sense to define "the reasonable person" in terms that themselves evidence unreasonableness--e.g., "hot-blooded," "impulsive," "helpless." What is the reasonable violent person, or the reasonable helpless person? More important, defining the legal standard subjectively deprives it of its value for making moral judgments, for deciding whether Janice Leidholm is blameworthy.

In any case, under any definition of reasonableness, the reasonable thing for Janice to have done was to leave Chester, not kill him.

Why Janice didn't do so is unclear. One possibility--perhaps the most obvious one--is that things were not as bad as she said. Another, offered by some feminist psychologists, is that Janice suffered from "battered-woman syndrome."

Dr. Lenore Walker, the inventor of this concept, claims that victims of battered-woman syndrome are unable to leave their abusers even when circumstances permit. According to Dr. Walker, over time a battered wife despairs of being able to control her husband's violence. "Repeated batterings, like electrical shocks, diminish . . . [her! motivation to respond." The victim gives up and settles into a languid state of "learned helplessness," a concept Dr. Walker borrowed from laboratory experiments which showed that dogs subjected to repeated shocks eventually become too dispirited to accept opportunities to escape.

Dr. Walker has written three books, most recently, Terrifying Love: Why Battered Women Kill and How Society Responds. More troublingly, she has been a witness in over 150 criminal cases.

As a witness, Dr. Walker's approach is to depict the battered woman as "just like you and me" and to denounce as prejudice or ignorance any hint that battered wives are other than victims of circumstance. There is, she asserts, "nothing special about their personalities." Experience, of course, suggests the opposite: that most women have enough sense to leave a man before he lands the first blow--or, at least, immediately thereafter. Dr. Walker disagrees. "Any woman" who meets up with the wrong man "is in danger of becoming a battered woman."

This is either poor social science or empathy caricatured and may explain why Dr. Walker has been able to find self-defense in cases that the layman would recognize as first-degree murder. In one, a wife, though separated from her husband, hired a hit man, lured her husband back into the house, and after the hired killer had fired two shots, yelled to him, "He's not dying fast enough--hit him again." Fortunately, in that case, the court excluded Dr. Walker's testimony as irrelevant.

But common sense is often left outside the courtroom door. In another case, involving a woman who shot her sleeping husband twice, following his threat to kill their baby, the expert witness, Julie Blackman, argued that the wife "exhibited characteristics of . . . [battered-woman! syndrome.... I emphasized ... [her! unsuccessful attempts to leave the relationship ... [and! although the [husband's! threat did not closely precede ... [the killing! ... she reported that she had relived her fear as she stood at the foot of the bed and fired the gun into her husband's sleeping body." It worked. The wife, incredibly, was acquitted on grounds of self-defense.

Although Dr. Walker acknowledges that battered women do exhibit "bizarre" behavior, she attributes this to their victimization. Once free of their husbands, "most ... cease to manifest any so-called behavioral disturbances or personality disorders, [proving! that ... their previously abnormal behavior was directly caused by their victimization." A homicide by a battered woman is "simply a terrified human being's normal response to an abnormal and dangerous situation."

All this sounds more like tract than treatise (and Dr. Walker, in her professional success, reminds one of the missionaries who went to Hawaii to do good and wound up doing well). Reduced to its essence, battered-woman syndrome is not a physician's diagnosis but an advocate's invention. It means: Blame the deceased.

Unfortunately, the term has received judicial recognition. The early decisions did exclude expert testimony on battered-woman syndrome as unscientific. The District of Columbia Court of Appeals, for example, cited Dr. Walker's remark--"I tend to place all men in an especially negative light"--as evidence of bias and the Wyoming Supreme Court accused her of reaching her conclusions before "engag[ing! in research ... to substantiate those theories." But as Dr. Walker and others continued to publish, judicial resistance wilted. Most courts now allow expert testimony on battered-woman syndrome (just this year, the Ohio Supreme Court reversed a decade-old precedent to admit it), and a few have swallowed Dr. Walker's "learned helplessness" adaptation in one gulp. The New Jersey Supreme Court, for example, mimicked Dr. Walker by finding that battered women "become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation."

Of course, such reasoning doesn't explain how women who are that helpless manage to stabl their husbands repeatedly in the chest with butcher knives, shoot them at close range, or hire hit men to do the job. Nor does it explain why, if battered women are capable of such violent actions, they are incapable of non-homicidal responses such as leaving the house.

Far-fetched as Dr. Walker's theories are, however, one can't read many accounts of abused women without wanting to say something on their behalf. The small number of battered women who kill should not be grouped with the premeditated murderer or hired killer. Many acted only after years of cruelty. The killing was an outburst, the accumulation of years of rage. Even when the victim was, like Chester, asleep, his death may not have been the product of calculation. A woman just abused may be unable to calm herself (as the law requires) once the moment of danger has passed. Nor is flight always possible. Some women don't flee their homes because no safe port exists where an enraged husband can't find them or their children they are cornered, and, so cornered, they are explosive.

But this is learned violence, not helplessness. Lenore Walker's insistence that killing "out of anger would be a male's response" is wrong the impulse to retaliate is universal. "If one allows that the accumulated irritation of a working day can be . . . [discharged! by kicking the dog," writes psychiatrist Anthony Storr, there is no reason why more serious grievances "should not be stored for much longer, perhaps even a lifetime" and, at times, produce outbursts like Janice Leidholm's, disproportionately savage to the immediate provocation, but revenging a history of victimization.

Under modern law, however, such acts are forbidden. The law holds a monopoly on punishment, requiring the victim to seek its protection. Janice was expected to give evidence to convict Chester. But if Janice was like most, she didn't want Chester put away, only better behaved, and refused to cooperate once an arrest rendered him contrite. And if the North Dakota police were like most, they quickly tired of responding to domestic-violence calls from the same household. Even if indefatigable, they had no legal way of preventing a determined man from attacking his wife.

Victims like Janice don't often appreciate this. Probably Janice thought the legal system incapable of effectively taking her side. Perhaps, like Bernhard Goetz, she had become unhinged by its failure to protect her in the past. Perhaps she believed that her status as one who has been repeatedly victimized accorded her greater rights to look after herself. But regardless of what Janice believed, she was not entitled to acquittal death is not the penalty the law assigned for Chester's offenses.

Judges who allow expert testimony on battered-woman syndrome don't fully understand this. They install, perhaps unwittingly, an escape route lacking a scientific predicate and appealing to popular prejudice. And judges who allow a jury to find self-defense where the victim was asleep, or eating or bathing, or otherwise unoffending when slain ignore long-settled, dearly won legal principles evincing respect for life.

If a jury needs to know why Janice or any other defendant thought she was in danger or why she didn't leave a life-endangering situation, she can speak for herself, without a hired translator. Then, if convicted, she will have established grounds for leniency, and the sentencing judge, in extending mercy, will be both honoring the law and showing due regard for the defendant. Not perfect justice, but perhaps it is as close as we can get.

Mr. Caplan is a professor of law at George Washington University.