Spousal Homicide Law: ‘Open Season’ on Men--or Domestic Violence? : Courts: Battered women who kill their tormentors raise legal questions. When is it self-defense to shoot a sleeping man?

Richard Celeste, Ohio’s outgoing governor, may have sparked a bigger chain reaction than anyone could have foreseen when he granted clemency to 26 battered women who were doing time for killing a boyfriend or husband.

Celeste reviewed the cases of more than 100 women in Ohio prisons last December and decided that these 26 had acted in self-defense.

Women’s advocacy groups hailed his action as courageous and said it should set a precedent for all governors. Prosecutors protested that Celeste might have just as well have declared “open season on men.”

Sue Osthoff of the National Clearing House for Battered Women in Philadelphia countered that it was time to put an end to open season on women and children.

The debate focused attention on the “battered woman syndrome.” This self-defense plea has been around more than 10 years and dramatized in film and television, yet some trial attorneys said they did not know it existed, much less know how to use it.

In late February, Maryland Gov. William Schaefer commuted the sentences of eight incarcerated women on the basis that they had killed in self-defense. Rep. Constance A. Morella (R-Md.) a champion of women’s rights, invited Schaefer to speak at the Maryland Correctional Facility.

According to statistics Morella compiled, a woman is beaten in her home every 15 seconds. At least four women are murdered by their husband or boyfriend every day and, each year, 3 million to 4 million women are assaulted by the men with whom they live.

Morella has introduced in the House three bills addressing domestic violence. Sen. Joseph R. Biden (D-Del.) is sponsoring a Senate bill on violence against women.

It was ironic that Ohio was one of the few states that had neither precedent nor law to deal with the battered-woman defense. Before 1990 only two states, Missouri and Louisiana, had laws specifically recognizing it as a plea and allowing introduction of the expert witness and supporting testimony.

The rest, except for Wyoming, relied on precedent in a rather unequal way. A judge could reject testimony that a woman had been victimized. Unless her attorney was prepared to appeal, such a defense could die right there.

“In Florida no judge would try that,” said Kathleen Haugue, assistant district attorney in Miami. “Everyone was aware of the precedent.”

Wyoming is the only state without a clear-cut precedent.

“We don’t get many of those cases out here,” one assistant district attorney said. In one case that did reach Wyoming’s high court, the issue was ruled not applicable.

California and Texas are likely to pass legislation soon. In the last session of the Texas Legislature, such a bill passed both houses unanimously but was vetoed. Since Ann Richards became governor, the bill’s supporters have high hopes. In California, a bill was withdrawn to be amended by the sponsors and is expected to sail through.

Osthoff said that New York, Washington, Arizona and Texas also may begin considering such cases for clemency. Women’s-rights groups say that about 800 women in prison in the United States should have their cases reviewed.

That is not to say that all 800 would walk. Celeste granted clemency in about a fourth of the cases he investigated. It must be remembered that a battered woman does not have a license to murder. She may or may not have acted in self-defense in what at first blush appears to be murder.

Many women now serving time, however, were tried before the “battered-woman syndrome” was admissible. Others were tried in states that later established precedents. Still others may not have even told their attorneys that they were mistreated.

Those who grew up in violent families may have regarded being beaten as a normal part of marriage and may not have mentioned it. They killed to stop the beatings and were willing to go to jail for their actions.

Even today, there are women being convicted who probably would be acquitted, or perhaps not brought to trial, if all the facts were brought out first and they had the right lawyers.

It is a difficult decision for a defendant. Should she go for a plea bargain or gamble that a jury will believe she acted in self-defense?

They risk a life sentence, maybe even a death sentence, if they lose on the self-defense plea.

One of the reasons the sentences tend to be harsh is that the battered woman who fears for her life finds it necessary to overpower her tormentor on a physical level.

A gun is used in a high percentage of such cases. It can be argued that a man can beat a woman to death with his fists, but few women have such an option.

A woman who decides to use a gun cannot risk a violent husband disarming her, so she may start shooting while he is asleep, has his back turned or is drunk.

Shooting an unarmed person usually brings a state’s most serious charge, such as aggravated murder.

Such a defendant almost always empties the gun.

“They are so afraid, feel so powerless, and believe he is omnipotent and about to rise up at any moment and beat them, that they keep shooting even when it would be clear to most people that the first bullet has killed,” said Dr. Lenore Walker of Denver.

In “The Burning Bed,” a movie starring Farrah Fawcett, a battered wife kills her husband by pouring gasoline around his bed and igniting it. The jury finds her innocent by reason of temporary insanity.

The “battered-woman syndrome” legal defense takes a different tack. It attempts to put the jurors in the woman’s shoes and demonstrate that her perception of imminent death or serious bodily harm was reasonable and sane. Thus, shooting the abusive man was not only a sane and reasonable thing to do, but a matter of self-defense, even if she shot him while he was asleep.

Lawyers say that such a case may be easier to win with a temporary-insanity plea in states where that plea is admissible, but they say that is missing the issue. They and the expert witnesses they call say the woman has been so terrorized, so brainwashed by years of beatings, that she believes her life is in imminent danger at all times.

The experts say she really doesn’t want to kill the man. She just wants the beatings to stop, and that is the only way she knows to accomplish that end.

“It is not an insane act,” Walker said. “I feel it is often the sanest thing she has ever done.”

Walker and other well-known expert witnesses, such as Cynthia A. Gillespie of Seattle, say that some women tell them their husbands had threatened to kill them for years. So why did they finally take action?

“They just do. There is something different in the way he said it, in the look in his eyes. They are convinced he means it this time,” Gillespie said.

Haugue, the Miami prosecutor, says there is no way a snoring man could represent imminent danger.

“A preemptive strike is murder, no matter what the circumstances,” she said.

Haugue has tried eight such cases in Florida in the last three years. Some women were not prosecuted because they obviously acted in self-defense. In other cases she recommended a suspended sentence.

“I got five convictions and the jury walked three,” she said. “I don’t think the cases against the three who were acquitted were weaker, I just think the jurors took such pity on those women and what they had been through, they just let them go. They ignored the law and let their hearts take over.”

Walker said that a killing must be viewed in context. A jury must understand what it is like to live under siege, to understand that to the battered woman, the threat was both real and imminent.

“She is so terrified, she fully expects him to get up at any moment,” said Dr. Angela Browne of Boston, a psychologist and researcher. “It is also why the women are often charged with whatever that state will allow, things like aggravated murder.”

The experts also must explain away alternatives that seem reasonable to those not living with such dread.

Why didn’t she just leave? Why didn’t she call the police?

The answers to those questions lie in the deeper problem--domestic violence--the experts say.

The woman may have left before but was found and severely beaten. More women are killed when they make a run for it than at any other time.

Poverty may be a deterrent. She literally has nowhere to go. By leaving, she might also forfeit the right to her children or put them in danger.

Why don’t they call the police?

Domestic violence gets low priority with most police departments. Too many women refuse to press charges after an arrest, some because they fear reprisals.

Far more men than women kill a spouse or lover each year. The men kill at a rate of almost 1,500 a year in the United States; women kill at the rate of 500 to 750 a year. It is estimated that 40% of those are in self-defense, but experts such as Angela Browne suspect that is a low figure. Men rarely kill women in self-defense.

Louise Ann Bauschard, executive director of Women’s Infinity Network in St. Louis, said that newcomers in prison often tell her that at last they feel safe. It is only when they are behind bars that the fear leaves them.