Battered women and the law; 'we are all responsible.' (interview with director of Battered Women's Justice Center at Pace University School of Law) (Interview)

Editors' Note: Michael Dowd is director of the Battered Women's Justice Center at Pace University School of Law in White Plains, New york. In the wake of the high-profile John and Lorena Bobbitt trials, the editors asked Dowd to reflect on the legal issues surrounding domestic violence. As TRIAL went to press, the arrest of football legend O.J. Simpson in the murder of his former wife was drawing renewed public attention to the issue nationwide.

The Bobbitt case placed the issue of battered women in the national spotlight last year. Has that case helped or hurt the cause of battered women? Did it raise people's awareness, or did the circus atmosphere surrounding the case trivialize the issue?

I think whenever there is discussion of the issue of domestic violence it necessarily heightens public awareness. That's a very good thing.

A negative might be the implication from the Bobbitt case, because it involved an insanity defense - namely, irresistible impulse - that all battered women are suffering from some kind of defect in reasoning that triggers an act of violence against their abuser. That's harmful because it plays into the notion that battered women are emotionally disturbed or mentally defective in some way, or that their presence in an abusive relationship suggests that there was something wrong with them to begin with. This does injury to the vast majority of battered women who claim self-defense, whose essential argument is that their act of violence was reasonable, appropriate, and lawful.

I think the circus atmosphere around this case undoubtedly trivialized the issue, but I think it also put the issue in the public consciousness. There has unquestionably been a lot of discussion about battered women - at least a lot of people asking questions about whether all these women are mentally disturbed. It has given a lot of people, including myself, the opportunity to set the record straight, to talk about the facts, and to talk about the majority of cases that don't involve an insanity defense.

How did you become interested in Battered Woman Syndrome?

I became interested because I found myself defending a battered woman in 1980. I'd had the case almost a year, and the woman had never spoken to me about violence in her home and never reported it when she was arrested for killing her husband.

After a year, I saw a news report where a woman in prison was speaking in the present tense about her deceased husband, whom she'd killed. I had thought it odd that my client always spoke of her husband, whom she had killed, in the present tense. I was startled by the coincidence of this type of speech and started to ask my client about violence in her life. Very slowly she began to open up and tell me about the violence in her relationship and the violence that occurred on the night she killed her husband.

As we prepared for trial it became clear to me that Battered Woman Syndrome is a vehicle to allow juries to understand the context in which a battered woman acted. Presenting evidence on this syndrome makes it far more likely that a jury will believe that she acted reasonably, which is one of the hallmarks of self-defense.

In a larger sense, you can't learn about Battered Woman Syndrome without understanding the fundamental injustices affecting women as a group that have made violence against women acceptable, and in many cases legal, for so long. Realizing this had a profound impact on me because I understood for the first time that I was part of a society that continued to perpetuate injustice. Frankly, it made me feel guilty, and it spurred me on to try to do something about it.

We seem to be hearing more and more reports of battering. Is this because there are more battered women, or are more battered women reporting the abuse?

Probably it's a little bit of both. The more substantial numbers probably reflect more willingness on the part of women to come forward and try to do something about the abusive relationships they're in. This is a direct product of the increased attention that the media, government, and, to an extent, the legal profession are giving the issue of domestic violence.

But domestic violence is still probably the most underreported crime in the United States. FBI statistics suggest that a woman is battered once every 15 seconds. A new book by Ann Jones, Next Time, She'll Be Dead, states that the figure is now 12 seconds. In either case, battering in the home is probably the most frequently committed crime in the United States, but also probably the most underreported crime.

Why don't battered women leave their abusers?

I don't like that question because it suggests that battered women can control the violence. It also suggests in a subtle way that the women are to blame when they are unable to leave abusive partners. The question we should be asking is why we allow men to abuse the women in their lives.

Why women stay is a very complicated question. Sometimes they stay because they have conflicting emotions. They love the men they're with. They think they'll change. After doing harm, abusive men commonly promise to change their behavior, at least in the early stages.

Beyond that, a lot of women don't leave their abusers because the systems that would help them do that aren't working very effectively. If a battered woman has small children and doesn't have a job and is dependent on the man she's living with or married to for support, it's not very easy for her to walk out. In New York last year we were able to house about 12,000 battered women and children, but we turned away 25,000 more because of lack of space. We still live in a country that has three times as many animal shelters as battered women's shelters.

It's also very hard for women leaving their abusers to get lawyers to represent them when they seek an order of protection or support for themselves and their children. Usually, whether they come from a mansion or a hovel, battered women are per se indigent because the batterer controls the money. If the woman can't hire a lawyer, she's really at the mercy, of the abuser.

And I haven't even begun to discuss the criminal justice system. We are still far away from a system where police respond uniformly, and effectively in arresting batterers and protecting battered women. Our courts still tend to trivialize domestic violence cases. They see them as being less serious than "stranger violence" cases and placing an unnecessary burden on the judicial system.

When all of these things are happening, there isn't much there to convince a woman that she can leave.

You once wrote that the term Battered Woman Syndrome gives the false impression that battered women are somehow mentally or emotionally impaired. Why is this view inaccurate?

There is no question that anybody subjected to violence over a period of time is going to show some effects. We know that from combat veterans and people who have been in concentration camps. But this does not mean they h lost the power to reason. In fact, they may be incredibly reasonable. Battered women understand just how bad their situation is and how hopeless it is in a society that does not take any effective action to aid them. The difficulty I have with this term is the suggestion that a woman suffering from Battered Woman Syndrome is defective and because of that defect she is somehow responsible for the violence against her.

How many courts now accept the battered woman defense? Is it continuing to gain credibility?

There is no such thing as a "battered woman defense." What has come to be known as the battered woman defense is really the use of expert testimony in aid of long-established defenses - usually self-defense, but in some cases extreme emotional disturbance, heat of passion, or insanity. This is not a new, discrete, and different defense.

The real question is whether courts are allowing the use of expert testimony in aid of these traditional defenses. The answer almost universally is yes. Courts throughout the United States are allowing expert testimony in some form or another on Battered Woman Syndrome to help the jury understand the life of a battered woman and, if you will, the prism that she sees the world through. Expert testimony can answer questions about the impact of long-term violence on her perspective and on her state of mind at the time she acted.

The fact that practically every state, if not every state, is allowing this testimony in evidence is ample proof that it is gaming credibility.

What standard should courts use in determining whether a battered woman who killed her abuser acted in self defense? Is the traditional "imminent danger" standard appropriate in these cases?

The law of self-defense was made by men and for men. It envisions a confrontation between strangers, like two gunfighters on a western street or two men of about equal physical capacity in a barroom brawl. At the time the law of self-defense was being defined, women certainly didn't have any impact on its construction.

Generally, we say that a person is entitled to respond with force or violence when the threat of force or violence is imminent. "Imminent" almost universally means something that is happening or about to happen. But if a woman who has been subjected to violence over a period of time waits until the man has his hands on her throat, the chances of her successfully defending herself are slim or nil. To act successfully against the threat, the woman must do it when there is a lull or an opportunity for her to strike out in self-defense, perhaps when the man's back is turned or when he is sitting or lying down.

I think to protect women or to allow them to protect themselves, we have to add something to the imminence standard. As it now e)%, it is unfair to women. In a very real sense, it denies them the right to a fair trial, due process, and equal protection.

How should the standard be changed to give battered women a fair chance to defend themselves?

I would like to tee something added that would suggest that one has the right to respond to the threat of violence when that threat is imminent or reasonably certain. This standard would not demand that a woman act when under attack, when she is most likely to fail in any attempt at self-defense.

I remember a case I had where one night a woman was confronted by her abuser, who had a gun. He said he was going to kill her before the sun rose, then laid down on the bed. She picked up the gun and shot him.

The jury came back three times asking for a definition of "imminent" because they clearly believed that she was in danger and that she would die by dawn. But the jury instruction suggested that 'imminent" meant the danger confronting her had to be immediately happening or happening very soon. This took her act beyond the definition of self-defense and posed an enormous problem for the jurors.

How did the case turn out?

She was convicted of murder, but the judge later vacated the verdict because of juror misconduct. The woman later pled to manslaughter rather than face the ordeal of another trial.

I think her case shows that we have to do something to bring our laws into the 20th century in terms of providing equal and fair treatment to women. The law of self-defense is not there. It seems to me it's reasonable to start to make our laws conform to notions of fairness and equality when it comes to a person's right to defend her life.

During voir dire, what characteristics should a lawyer look for in choosing jurors who are likely to be receptive to a battered woman defense?

If you're representing a battered woman, I think you should look for people who understand that injury can happen to a person without the person deserving it. You might want to be wary of a person who believes there is some kind of divine predetermination to tragedy or who sees tragedy being visited on somebody as some kind of test. Implicit in that may be the suggestion that the person deserved it.

Unquestionably, you should look for people who are sensitive to notions of equality. People who see well-defined roles for men and women probably don't see men and women as equals.

When it comes to women jurors, probably the last person you want on the jury is a woman who says it could never happen to her. That's the kind of person who cannot understand the plight of a battered woman. Generally, people who can't see beyond their own experience are not going to be able to place themselves in your client's shoes.

Another characteristic you might look for is the capacity to understand that fear can produce responses in someone that are very different from the responses the juror may have. You might ask jurors what they think about the fact that some people fear heights and others don't. You want jurors who understand that the fear of heights, even though they may not experience it, is very real. You want jurors who have the capacity to empathize and to see the world through another person's eyes, namely your clients.

What you're really looking for is people who have the capacity to understand in the broadest possible terms that bad things happen to good people for no good reason - people who can put themselves in the position of someone who has had vastly different experiences in life.

It seems that more and more criminal defendants are raising their personal experiences with violence in their defense. Critics call this the "abuse excuse." Is victimization becoming an all-purpose defense?

I think it's irresponsible for people to lump all these cases together. Whether or not violence or abuse in someone's history is relevant in a case depends on the particular circumstances of the case. We have to distinguish between the person who says he ate too many Twinkies as a kid and that justified him robbing liquor stores, from the battered woman who says that the history of violence that she suffered made her better able to know when the threat of violence by her abuser escalated to a point where she had to act.

Is there a danger that too many claims of victimization might lead to a backlash against battered women and abuse victims generally?

I think it's already happening. We're in a climate where many of us are afraid that crime is out of control, and we're all too ready to look for easy solutions. There will always be people who see every battered woman as Lorena Bobbitt and every battered child as Lyle or Erik Menendez. They will not listen. There's great danger in that. That's why it's important for lawyers, whenever we get the opportunity,, to speak up md to demand that each criminal case and each claim of injustice be judged on its own merits. That's the essence of our system.

There's one thing I have always believed in, and that is that you can bring together 12 solid citizens without any kind of legal background, put them in a courtroom, present them with a set of facts, and they will sift through the material, throw away the garbage, and save what's good. For example, take a case where a person claims he watched too much violent television, and that made him go out and do drive-by shootings. From what I've seen and read, juries routinely reject these defenses. On the other hand, when a battered woman claims that she acted in self-defense and introduces evidence about the history of violence that made her keenly aware of when she was in particular danger, I really think juries can listen to this and say it makes sense.

People may make crazy claims, but we still get 12 sane people sitting in the jury box who are able to tell the good from the bad.

How much is Battered Woman Syndrome used in civil litigation, particularly in family law?

Not enough. A major problem is the failure of lawyers to be familiar with the use of expert testimony on Battered Woman Syndrome in family law cases.

How would a lawyer use this testimony in child custody or divorce cases, for example?

It's well established by now that a husband who abuses his wife is highly likely to do injury to the child and is probably a bad parent.

In divorce cases, expert testimony on Battered Woman Syndrome can help explain why the wife's conduct appears inconsistent. She may be claiming abuse over a long period of time, although she may have told people in the past that there was no violence in the relationship. Expert testimony can help explain how a woman might say those things even though she is abused. She may be ashamed of the fact that she's being abused. It may be an effort to hold the family together. She may hope the abuser will change.

I don't think enough lawyers are looking at their cases and asking themselves whether this kind of testimony can be helpful. It's not that judges are keeping this testimony out; I think to a greater degree it's lawyers not putting it in. This is one of the reasons the Battered Women's Justice Center was created: to teach lawyers how to effectively use expert testimony about Battered Woman Syndrome in civil cases.

Can battered women sue their abusers for damages?

Certainly they can. It isn't happening very often, but it should be happening.

Look at the RICO statutes. They have become a very effective tool against organized crime because, in addition to the criminal penalties that can be imposed, there is a host of civil remedies that can strip the criminal of the fruits of the illegal enterprise.

The same would be true in cases involving battering. Not only can the woman seek redress in the criminal court where the abuser can be punished by a deprivation of freedom, but by using a lawsuit for assault or an intentional tort the woman can literally make the abuser pay for the injury he has caused. It might be an even more effective way to enhance the rights of battered women.

I think we have to do a lot of educating in the legal profession about the availability civil litigation to aid the cause of battered women. They can and should be able to seek redress for the assaults committed against them. It makes more sense to use this vehicle than to wait until the criminal justice system has to intervene after the violence has escalated to a much more serious level, sometimes to a point where one or the other of the parties has died.

Some women's advocates have complained that both the medical and legal communities for years have turned a blind eye to the problem of domestic violence. Do you agree with that criticism?

I do agree with it. For literally centuries we have had blinders on when it came to domestic violence. Both the legal and medical establishments have refused to see what was happening behind closed doors in our communities.

But I think things are changing. Lawyers have been in the forefront of fighting for women's rights and for equality. And recently, the medical profession has been hard at work to ensure that doctors recognize the signs of battering. Doctors should recognize that women who repeatedly come to emergency rooms and say they got their injuries walking into doors or falling down stairs are there because they're being beaten. It's important for these two communities to work together because the medical profession can often provide documentation that is helpful in a lawsuit.

It seems that the most important issue is how to prevent battering from happening in the first place. What role has the justice system played in protecting women from abuse, and what more can be done?

Up to this point, the justice system has played very little part in protecting women from abuse. In my judgment, the absence of action on the part of our legal system is shameful.

I can remember cases I handled as a young lawyer where I represented husbands accused of assaulting their wives. I knew all I had to do was mention to the judge that this was a domestic matter - the implication being that this was nothing important, this was a lovers' quarrel, they'll get over it. I knew the judge would see this - the whole system would see this - as a much less serious matter than cases involving other types of violence.

Now our legal system is beginning to understand that these kinds of cases are probably more serious than stranger assault because the potential for escalating violence is much greater.

The legal system can play an enormous role in protecting women just by enforcing the laws that are on the books. Also, more laws are being proposed on mandatory arrests and tougher sanctions for violations of restraining orders.

But we also have to be conscious of our obligation to provide battered women with access to the legal system. We can have great laws on the books, but if women cannot effectively use those laws, they are of absolutely no value to them.

So what should be done?

I think we have to educate prosecutors tn the handling of domestic violence cases, and we have to educate other lawyers on how to use the laws in civil cases.

Beyond education, we have to have some mechanism for providing legal services to battered women. Maybe it's a pro bono requirement, or perhaps it's the establishment of a system of legal services for indigent victims. We have to make sure that these women can get lawyers. Often a battered woman who seeks a divorce and doesn't have the money to pay an attorney a retainer has to wait years to get a lawyer to obtain for her a fair settlement, fair access to the home, and fair access to the resources of the family. When we're not providing that, we're doing great injury not only to battered women but to the children in these families.

When it comes to criminal cases, it's just very hard to get any organization or any part of the government to put up the money to train criminal defense lawyers about defending battered women, including how to use expert testimony. In my judgment, the legal system, from the civil side to the criminal side, is far from adequate in providing battered women with the opportunity to have their day in court.

How have your methods for dealing with these cases changed over the years?

I was content for a long time to fight individual cases. I now recognize that I also have to speak wherever people will listen about the injustice of prejudice and discrimination.

On a practical level, I have been provided an excellent opportunity through the Battered Women's Justice Center to help train lawyers to better represent battered women in all forums, civil or criminal. In that sense, my methods have changed.

But my whole way of looking at this issue has also changed. When I first became involved, I saw the acts of a batterer doing injury to an individual woman as a kind of a private injustice, disconnected from society as a whole. I think the most important thing I've learned is that the individual batterer is enabled by the ingrained injustice in our society toward women.

To put it another way, the batterer does injury to a woman because he believes he has the right to dominate and control her and to cause her injury if she displeases him. That presumed right grows from a belief that he is better than she is.

As long as we have a society that perpetuates that notion, we are all responsible for the violence done against individual women.