PERSPECTIVE ON ABUSE : Should the Law Blame the Victim Who Takes Revenge? : Is lethal force ever allowable? Can one be ‘insane’ yet accountable? Three current cases show the variety of defenses.

In John Grisham’s first novel, “A Time to Kill,” a father deliberately kills the two men who viciously raped his daughter before the legal system could determine their guilt. The killing takes place in a courtroom corridor while the men are in police custody. The father is charged with premeditated murder but a jury finds that he was insane at the time of the shooting despite the absence of any convincing evidence. In essence, the jury refuses to convict the father because they find it impossible to blame him for how he responded to his family’s victimization.

In a tragic case of life imitating art, Ellie Nesler shot to death the man charged with molesting her child during pretrial proceedings. Her trial has just begun and her defense is insanity. Like the father in Grisham’s novel, she will claim that the emotional stress of dealing with her child’s victimization drove her over the edge. In another California courtroom, Lyle and Erik Menendez are on trial for the murder of their parents. They claim they acted in self-defense, that killing their parents was a necessary act of survival, the only way to end years of sexual and psychological abuse. And in Rush Springs, Okla., the Dutton brothers, age 15 and 12, claim that they acted in self-defense against a physically abusive father when they shot him to death as he dozed on a sofa.

From a legal perspective, these three prosecutions raise very different issues.

Insanity is an excuse defense. Nesler’s insanity defense concedes that she committed an unjustifiable act but denies that she was morally responsible. To succeed, she must persuade the jury that she was suffering from a mental defect at the time of the shooting, which deprived her of the ability to appreciate the moral significance of her actions.

In contrast, when individuals claim that they have killed in self-defense, they are seeking to justify their actions. They must persuade the jury that their use of lethal violence was necessary to defend against an imminent threat of serious harm.

The Menendez brothers will try to persuade their two juries that they had reasonable grounds to believe that their parents were threatening them with serious bodily harm at the moment they killed them.

Whether this defense succeeds may depend on the trial judge’s willingness to instruct the juries that reasonableness must be measured from the perspective of a victim of prolonged abuse.

The Dutton brothers might have far greater difficulty satisfying the element of an imminent threat because they killed their father while he slept.

Despite the legal differences in these defenses, both the media and popular culture have responded to these cases in a manner that tracks Grisham’s fictional jury. The key issue in the public’s mind appears to be: Who is the real victim, and who is the victimizer? Victimizers are morally responsible for their bad acts and deserve our condemnation. Victims of terrible abuse bear no moral responsibility for how they respond and merit our compassion.

In Nesler’s case, there has been considerable public debate about whether to view her as the victim’s distraught mother, or as a woman with a felony record and possibly under the influence of drugs when she shot the man accused of molesting her son.

Public discussion of the Menendez case has focused on whether the brothers were really abused or whether their allegations of victimization are last-minute fabrications. The implicit assumption is that if they really were abused, they can’t be blamed for having killed their abusers.

People in Oklahoma have rallied to support the Dutton boys because they believe the allegations of terrible abuse.

This “cultural story” now prevalent in our society assumes that genuine victims of abuse lack the capacity to make morally appropriate responses about how to end it, or that such victims are under no moral obligation to avoid unnecessary violence as long as it is directed against the victimizer. But neither the law nor any defensible view of morality supports the use of this story to determine guilt.

First, it is not always possible to divide the world neatly into victims and their victimizers. Someone can be both victim and victimizer at the same time. Nesler and her child were both victims, but when she became the alleged abuser’s judge, jury and executioner, he became her victim.

Second, the law does not privilege unnecessary violence just because it is directed against one’s victimizer. Even the lives of culpable wrongdoers merit protection from unnecessary lethal force. The law of self-defense does not justify revenge killings for past abuse or preemptive strikes to prevent future abuse that could be avoided by nonviolent means.

Finally, a fundamental theme of Western culture and our criminal law is that all sane adults are morally responsible actors: We deserve blame and are responsible for our bad choices because we have the capacity to make the right choice and the ability to act in accordance with that moral judgment. In the law’s eyes, the psychological damage that occurs when a normal adult is victimized is not sufficient to destroy that person’s capacity or responsibility to make appropriate moral choices about how to respond.

By raising the insanity defense, Nesler is challenging the law’s assumption of moral responsibility. The ultimate issue in her trial is whether the effects of her family’s ordeal on her psyche were so severe that they destroyed her capacity to appreciate that what she was doing was wrong. If no persuasive evidence of serious mental disorder is presented, a guilty verdict would express the message that we can fairly expect parents of abused children not to act on their desire to punish the abuser, much as we might understand their pain and rage.

This does not mean that the law has no compassion for victims like Ellie Nesler. Being victimized certainly is relevant to the degree of blame we attach to the criminal act. Nesler’s jury might reject her insanity defense but still find that she was provoked to kill and return a verdict of voluntary manslaughter.

What about the Dutton boys? Even if it is fair to expect adults to deal responsibly with the hardships that life foists on us, should not their status as children require a different measure of culpability? If so, how should the law treat defendants whose victimization extended from childhood into adulthood, as the Menendez brothers claim?