debate nfl jan feb 2012

Defending Against Domestic Violence

NFL Jan/Feb LD Topic: Resolved: it is morally permissible for victims to use deadly force as a deliberate response to repeated domestic violence

Debate Doctors Debate Briefs

Debate Doctors 2011 1 Defending Against Domestic Violence

Resolved: it is morally permissible for victims to use deadly force as a deliberate

response to repeated domestic violence

Contents EXAMINING THE RESOLUTION ............................................................................................4

AFFIRMATIVE CASE 1: PATERNALISM ...............................................................................7

AFFIRMATIVE CASE: PATERNALISM ..............................................................................8

CONTENTION 1: DOMESTIC ABUSE IS WIDESPREAD ..............................................8

CONTENTION 2: THE ABUSED PERSON FEELS THEY HAVE NO OTHER ESCAPE 9

CONTENTION 3: THE DEFENDANT’S STATE OF MIND IS THE RELEVANT

STANDARD .......................................................................................................................9

CONTENTION 4: BATTERED WIFE SYNDROME DEFENSE HELPS JURIES

UNDERSTANED THE WOMAN’S SITUATION ..............................................................9

Answers to possible Negative attacks .................................................................................... 11

AFFIRMATIVE CASE 2: JUSTICE AS FAIRNESS ................................................................ 12

AFFIRMATIVE CASE: JUSTICE AS FAIRNESS ............................................................... 13

CONTENTION 1: MANY WOMEN HAVE NO FAIR OPPORTUNITY TO REMOVE

THEMSELVES FROM ABUSE ....................................................................................... 13

CONTENTION 2: AN EXAMPLE ILLUSTRATES THE POINT .................................... 14

CONTENTION 3: MODEL PENAL CODE PROVIDES FOR THIS DEFENSE .............. 14

CONTENTION 4: FEW WOMEN KILL A DEFENSELESS ABUSER ............................ 15

Answers to possible Negative attacks .................................................................................... 16

AFFIRMATIVE EVIDENCE ................................................................................................... 17

DEFINING BATTERED WIFE SYNDROME...................................................................... 18

DEFINING BATTERED WIFE SYNDROME...................................................................... 19

STANDARDS FOR BATTERED WIFE SYNDROME ........................................................ 20

BATTERED WIFE SYNDROME DEFENSE HELPS JURIES UNDERSTANED THE

WOMAN’S SITUATION ..................................................................................................... 21

BATTERED WIFE SYNDROME DEFENSE HELPS JURIES UNDERSTANED THE

WOMAN’S SITUATION ..................................................................................................... 22

BATTERED WOMAN SYNDROME IS AN ACCEPTED DEFENCE ................................. 23

DOMESTIC VIOLENCE IS MORE FREQUENT AND MORE SEVERE ........................... 24

MORE WOMEN ARE VICTIMS OF DOMESTIC VIOLENCE .......................................... 25

PARDONING A BATTERED WOMAN IS APPROPRIATE ............................................... 26

PREGNANT WOMEN AT INCREASED RISK OF DOMESTIC VIOLENCE .................... 27

DOMESTIC VIOLENCE CAUSES MENTAL ILLNESS ..................................................... 28

THE LEGAL SYSTEM IS AGAINST THE ABUSED WOMAN ......................................... 29




FEW WOMEN KILL A DEFENSELESS ABUSER ............................................................. 30

WHY WOMEN STAY WITH AN ABUSER ........................................................................ 31

BATTERED WOMAN SYNDROME SHOULD BE PART OF A BATTERED WOMAN

TRIAL .................................................................................................................................. 32

NEGATIVE CASE 1: RIGHT ACTION .................................................................................. 33

NEGATIVE CASE: RIGHT ACTION ................................................................................. 34

CONTENTION 1: NO SINGLE MORAL CODE .............................................................. 34

CONTENTION 2: MORALITY IS AMBIGUOUS ........................................................... 34

CONTENTION 3: BATTERED WIFE SYNDROME DEFENSE DEMONSTRATES

MENTAL DISORDER...................................................................................................... 35

Answers to possible Affirmative attacks ................................................................................ 36

NEGATIVE CASE 2: JUSTICE AS FAIRNESS ...................................................................... 37

NEGATIVE CASE : JUSTICE AS FAIRNESS .................................................................... 38

OBSERVATION ............................................................................................................... 38

CONTENTION 1: MORALITY APPLIES TO RATIONAL INDIVIDUALS ................... 38

CONTENTION 2: DOMESTIC VIOLENCE CAUSES MENTAL ILLNESS ................... 39

Answers to possible Affirmative Attacks ............................................................................... 40

NEGATIVE EVIDENCE .......................................................................................................... 41

PROBLEMS WITH THE BATTERED WIFE SYNDROME ................................................ 42

REQUIREMENTS FOR SELF DEFENSE DEFENSE .......................................................... 43

TRADITIONAL HANDELING OF BATTERED WOMEN WHO KILL ABUSER NOT

ADEQUATE ......................................................................................................................... 44

PREEMTIVE KILLING IS NOT SELF-DEFENSE .............................................................. 45

BATTERED WIFE SYNDROME IS NOT A DEFENSE ...................................................... 46



PROBLEMS WITH BATTERED WIFE SYNDROME ........................................................ 49


Cycle of violence ............................................................................................................... 50







BATTERED WOMAN SYNDROME DEMONSTRATES THE WOMAN HAS A MENTAL

DISORDER .......................................................................................................................... 54

JURY NULLIFICATION OFTEN AQUITES WOMEN WHO KILL THEIR ABUSER ....... 55

MURDER IN A NON-CONFRONTATIONAL SITUATION IS NOT MORAL .................. 56

DEFINING MORALITY ...................................................................................................... 57

NO SINGLE MORAL CODE ............................................................................................... 58

MORALITY IS AMBIGUOUS ............................................................................................. 59

MORALITY IS AMBIGUOUS ............................................................................................. 60

CONSEQUENTIALISTS DIFFER ON MORALITY ............................................................ 61

MORALITY AS A PUBLIC SYSTEM ................................................................................. 62

IF THERE IS A MORALITY IT PROVIDES FOR PREVENTING HARM TO ANOTHER 63

BATTERED WOMAN SYNROME STATUTES HURT WOMEN ...................................... 64

“NO FAIR OPPORTUNITY” CLAIM IS THE BETTER WAY ........................................... 65

“NO FAIR OPPORTUNITY” CLAIM IS THE BETTER WAY ........................................... 66

AN IMMORAL ACT THAT IS EXCUSED DOES NOT CHANGE THE MORALITY OF

THE ACT ............................................................................................................................. 67




EXAMINING THE RESOLUTION Edward Lee, PhD

This resolution is vague enough that the debater that best defends their interpretation of

the resolution could win the debate. Before you say “that’s how it always is” allow me to

elaborate. The big question here is in the ability to decide what is moral. And the other question

is “who does the deciding?"

If one decides that the resolution is saying that the decision to kill the abuser is a moral

decision, then the abuse victim has made the decision. Yet, this flies in the face of the usual

defenses of these individuals. The self-defense approach indicates a spur of the moment reaction

to a lethal threat and so no moral decision could have been made in that instance. Battered

Woman Syndrome (BWS) indicates that the victim has undergone a series of traumas and has

arrived at the decision to kill based on elimination, in her mind, of any alternative. No Fair

Opportunity (NFO) holds that the victim was not mentally incompetent but had no other

alternative given the circumstances presented. All three of these defenses effectively eliminate

the ability of the abuse victim to make a moral choice – or any choice other than the one to kill.

If one wants to argue that society determines that the murder of the abuser was morally

justified, then it could be argued that there is no moral constant since murder is moral in one

place but not in another. Further, if society announces it is moral to kill your abuser, then does

that mean we declare war on all abusers? How would such a society control for those who

wanted to kill for other reasons and used the abuse defense? Further, it could be argued, that

because these individuals are taken to trial it is obvious that society considers murder immoral.

If the person is shown to have murdered for the reason of self-defense or one of the other

defenses mentioned above, then society decides to excuse the immoral act. Killing is still

immoral but we understand that the killer was unable to make another choice. Here we see that

it is not the act of killing that was morally justified or even permissible but rather society decided

to excuse the person because of the inability of the victim to make the moral choice.

The use of the word “deliberate” on the surface would seem to argue a choice. Yet if we

look at BWS or NFO, the abuse victim seems unable to see any other choice. The word

deliberate can also mean that the abuse victim simply killed the person on purpose rather than




by accident. Using this approach, the objections to the injection of morality into the action once

again becomes problematic.

One might argue that if only one choice exists, then that choice is moral by virtue of the

fact that there were no others possible. Yet one might counter this by arguing that if there is only

one choice, there is no morality to be considered and the action must be viewed as amoral as a

result.

Finally, there will be those who try to restrict their opponent to the use of morality as the

value since the word morally appears in the resolution. Obviously, the smart debater is going to

offer values and criteria that allows them to evaluate morality rather than upholding morality.

Affirmative Strategy

Affirmative will want to play up the danger the abuse victim is in. In her/his mind, there

is no way to end the abuse except by killing the abuser. The evidence in the cases and

demonstrate this dilemma. The abuser presents his/her victim with a reality in which the victim

comes to believe that they will be killed by the abuser. Therefore, the killing of this person is

moral because it is moral to protect one’s life. Affirmative can choose BWS or NFO or other

defenses that demonstrate a state of mind that knows no other recourse.

Negative Strategy

Negative wants to stay away from trying to say defending oneself is wrong. Additionally,

it will be difficult to convince a judge that domestic violence is moral. The better course would

be to insist that in order to judge an action “moral”, there must be the ability to choose between

a moral and an immoral action. Negative can play off the Affirmative case that wil,l in one way

or another, paint a picture of a person that was left with only one choice. Negative does not

have to say the abuser did not deserve to die and Negative does not have to refute the fact that

there was no other choice for the victim. Negative merely has to note that since there was no

alternative choice, there was no moral at stake. The person did the only thing they could do.




This does not negate the fact that murder is wrong but rather demonstrates the compassion

society has for those who are incapacitated or unable to make a choice. The choice itself was

amoral (neither moral or immoral). Affirmative could argue that society has decided that was

moral but Negative can counter by arguing that society recognized the person’s affliction and

the society does not hold accountable those who cannot choose right from wrong.

Obviously, Negative wants to make this a debate about the ability to choose. An act can

only be moral if there was an immoral choice possible. Affirmative will in one way or another

have to eliminate any other choice for the abuse victim and so Negative will be able to latch on

to the moral issue.

A word here about the word “morally” is in order. As used in the sentence the word is

an adjective modifying “permissible”. Affirmative may object to Negative using the word

morality or moral and try to restrict usage to the word “morally”. That is of course ridiculous

since morally permissible indicates that there is an overarching morality in force. This brings to

a head all those arguments against the use of the word moral we have been using in other topics.

What is moral? Morality varies from person to person, state to state, religion to religion, culture

to culture, and historical period to historical period. Morality is the proverbial moving target.

Do not let Affirmative distract you on this.

Good luck one and all.




AFFIRMATIVE CASE 1: PATERNALISM

This case argues that government and society in general functions as a parent for its

citizens. As a parent, society must seek to understand the child/citizen when that child/citizen

takes an action. Sometimes it is okay to act against the norm. If the citizen is threatened with

their life, they have a right to protect that life. The person who would seek to take the citizens

life or put them in a state whereby the other citizen feels their life is threatened has chosen to

harm society by harming one of its productive citizens. The parental obligation then goes to the

one who has been forced to take the action to defend themselves. By understanding the

circumstances, society has acted as a responsible parent.




AFFIRMATIVE CASE: PATERNALISM

The Value I will uphold is Paternalism

A policy or practice of treating or governing people in a fatherly manner, especially by providing

for their needs without giving them rights or responsibilities.

Common good is the criteria I will uphold

By common I mean:

[Merriam-Webster Online Dictionary.]

of or relating to a community at large : work for the common good; belonging to or shared by

two or more individuals or things or by all members of a group

Observation 1: Government and law enforcement agency of any society are meant to protect its

citizens from harm. When an individual so abuses or attacks a citizen so that citizen fears for her

life, that citizen must be allowed to protect herself from being killed. A government that

understands this obligation is fulfilling its paternal obligations.

Observation 2: When a person abuses and injures a citizen, the attacker has denied his place in

the paternalistic society.

CONTENTION 1: DOMESTIC ABUSE IS WIDESPREAD

Becker, Christine Noelle. (11-1-1995) Clemency for Killers? Pardoning Battered Women Who

Strike Back. Loyola Marymount University and Loyola Law School Digital Commons at Loyola

Marymount. University and Loyola Law School. Loyola of Los Angeles Law Review.

Domestic abuse is a widespread problem in our culture, with

researchers estimating that between 1.6 and 4 million women suffer

abuse by their husbands or boyfriends each year."' Although a

majority of states currently allow the admission of expert testimony

on battered woman syndrome in cases of battered women who have

killed their abusers, either through judicial discretion or statutory

enactments, many women are convicted of first or second degree

murder even with such expert testimony.' Aside from various

substantive critiques of battered woman syndrome




CONTENTION 2: THE ABUSED PERSON FEELS THEY HAVE NO OTHER

ESCAPE

Dutton, Mary Ann. (2011) Update of the 'Battered Woman Syndrome' Critique. National

Resource Center on Domestic Violence. http://www.vawnet.org/applied-research-papers/print-

document.php?doc_id=2061. [Mary Ann Dutton With contributions from Sue Osthoff and

Melissa Dichter]

Psychologically, BWS may apply when a woman has been abused at least

twice and exhibits a cluster of symptoms such as low self-esteem, self-blame,

anxiety, depression, and despair. The syndrome explains that a battered

woman stays in an abusive relationship as a result of these feelings of

helplessness and fear. Since a woman suffering from BWS feels she cannot

leave the relationship, she may come to believe that using deadly force is her

only option for escape.

CONTENTION 3: THE DEFENDANT’S STATE OF MIND IS THE RELEVANT

STANDARD

Belew, Christine. (2010) "Killing One's Abuser: Premeditation, Provocation, or Pathology?", 59

Emory Law Journal. 769

The court specifically found that the defendant’s conduct should not be

judged by what a “reasonably cautious person” would do under similar

circumstances, but rather what the defendant herself “honestly believed and

had reasonable ground to believe was necessary for [her] to do to protect

[herself] from apprehended death or great bodily injury.”112 This standard

requires a jury to consider the defendant’s history of battering and to take into

account the abusive relationship when deciding whether she acted

reasonably.113 Thus, evidence of BWS could show that a battered woman

might honestly and reasonably believe that her abuser would kill her when he

awakened, given his threats and prior abusive actions.

CONTENTION 4: BATTERED WIFE SYNDROME DEFENSE HELPS JURIES

UNDERSTANED THE WOMAN’S SITUATION






Evidence of BWS serves two functions in the context of a claim of self defense.

First, BWS evidence helps a jury credit the testimony of the battered woman defendant and

understand why the woman did not simply leave therelationship. Second, BWS testimony may

support the objective reasonableness requirement by showing that a reasonable person in

hercircumstances would have acted in the same way. Without expert testimony on BWS to

explain a battered woman’s perceptions, a jury likely will not understand how the defendant’s

reaction could be considered reasonable.

Understanding that a person must be allowed to protect themselves from harm fulfills

governments paternalistic obligations. Battered Woman Syndrome demonstrates that law meets

the criterion of common good because society is made safer when people are allowed to preserve

their safety in their own home. The resolution is true and so I ask for the Affirmative vote in this

debate.




Answers to possible Negative attacks

Observations carry no weight in the round.

This is ridiculous on several counts. First, an observation provides the warrants upon which the

case is founded. If the observation is not refuted, then the only criterion with standing is the

Affirmative.

Second, to say an argument carries no weight is like saying “your wrong so I win.” It’s nice and

wishful but provides no argumentation, no logic, no refutation. It is the same as no attack at all.

If the woman is attacked, then Paternalism fails

No parent, human or governmental can see what goes on behind closed doors. Paternalism as

used here allows that actions have consequences and citizens are protected even behind those

closed doors.

Aff does not stop violence so does not meet common good

Aff meets the criterion by understanding the victim’s situation and realizing that it was not the

victim but rather the attacker who acted immorally. To resist immoral behavior is to act morally.

Second, by noting that the abused victim has acted morally, others are encouraged to protect

themselves and abusers are at least warned that everyone has the right to defend themselves.

There are absolutes that prevent certain actions such as murder

In the case of morality, there is no absolute. Morality varies from individual to individual and

from society to society. However, a society that recognizes its paternal obligations to its citizens

meets its moral obligation as understood in that society.

Second, defending oneself is not murder but rather self-preservation. This has always been a

recognized difference.




AFFIRMATIVE CASE 2: JUSTICE AS FAIRNESS

The thesis for this case is that Justice as a fairness can only be upheld by allowing those

who have no other way of escaping a situation that they know will end in their death to take

action to avoid being killed. In a society like this, everyone knows it is accepted as moral to kill

an abuser who will kill you if they are not stopped. Since everyone understands this and since

this applies to all individuals, this meets the well-ordered society criterion which in turn upholds

Justice as Fairness.




AFFIRMATIVE CASE: JUSTICE AS FAIRNESS

My Value is: Justice as Fairness

Rawls, John. (1993) tells us in Political Liberalism. (P. 9.)

Justice as Fairness uses a fundamental organizing idea within which all ideas and principles can

be systematically connected and related. This organizing idea is that of society as a fair system

of social cooperation between free and equal persons viewed as fully cooperating members of

society over a complete life.

My Criterion is: Well Ordered Society

Rawls, John. (2001) Justice as Fairness: A Restatement. Cambridge: Belknap Press. P. 9

One reason we form this idea is that an important question about a conception of justice for a

democratic society is whether, and how well, it can serve as the publicly recognized and

mutually acknowledged conception of justice when society is viewed as a system of cooperation

between free and equal citizens from one generation to the next. A political conception of justice

that could not fulfill this public role must be, it seems, in some way seriously defective. The

suitability of a conception of justice for a well ordered society provides an important criterion for

comparing political conceptions of justice.

Observation: In a well-ordered society, everyone knows the rules and the rules apply to all

individuals. To understand that if a person is trapped in an abusive situation, an abused person

has a moral right to end the abuse.

CONTENTION 1: MANY WOMEN HAVE NO FAIR OPPORTUNITY TO

REMOVE THEMSELVES FROM ABUSE

Dressler, Joshua. [2006] Battered Women and Sleeping Abusers: Some Reflections. OHIO

STATE JOURNAL OF CRIMINAL LAW [Vol 3:457]

We do not need to focus on syndromes, however, to provide a potential

excuse for a severely battered women. We can provide a theory for acquittal that

is, I think, more consistent with our moral intuitions, and which is not potentially

demeaning to the woman. The solution is found in applying the no-fairopportunity

prong of excuse theory. A no-fair-opportunity excuse claim is based

on some external factor that acts on the individual in a way that convinces us that

she did not have a fair opportunity to conform her conduct to the law (the third

criterion above). The key word here, of course, is fair. This is a normative

judgment. We do not need expert psychiatric testimony to handle this question,

because this form of excuse recognizes that there is nothing wrong with the

woman—what was “wrong” were external circumstances that we believe, but for




the grace of God, would probably have caused us, as well, to act unlawfully.

CONTENTION 2: AN EXAMPLE ILLUSTRATES THE POINT



Can we make a plausible no-fair-opportunity claim in Judy Norman’s case?

Yes. Think about what a jury might have asked itself if it had been given the

opportunity. Could Judy have avoided the situation by walking out the door?

(Remember, we are not using syndrome evidence, so the battered woman’s learned

helplessness, if it exists, is not relevant.) To answer that question, the jury would

likely ask itself other questions: Did Judy Norman have children, thus making it

more difficult for her to leave? Yes. She had four living at the time of J.T.’s

death. What then were her options? Leave them with J.T.? That would be

unthinkable for any loving parent. Leave with them? Where would she have

gone? How would she have supported the children? What safety nets had been set

up in her community to make such an option realistic? Moreover, what would

have prevented J.T. from finding her and “punishing” her for her departure?

Rather than leave, could she have called the police for help? She did, and they did

nothing to protect her. And, so on.

CONTENTION 3: MODEL PENAL CODE PROVIDES FOR THIS DEFENSE



And, lo and behold, inabout a dozen states, there already is a recognized statutory basis—one

apparently

not appreciated by enough defense lawyers—for making this claim. It is the defense of duress, as

defined by the Model Penal Code.31 The Code provides a defense if a person is coerced to

commit a crime—including murder—as the result of prior use of unlawful force upon the person

(there is a lot of that in domestic violence cases) and/or imminent or non-imminent threats by the

aggressor to use unlawful force upon the person in the future, if a person of reasonable firmness

in the actor’s situation would have been unable to resist committing the crime.

This certainly applies here since most abusers are killed as the abused seeks to protect

themselves during an actual attack.




CONTENTION 4: FEW WOMEN KILL A DEFENSELESS ABUSER

Krause, Joan H. (2007) Distorted Reflections of Battered Women Who Kill: A Response to

Professor Dressler. OHIO STATE JOURNAL OF CRIMINAL LAW March 11, 2007. [Vol 4:555]

As an initial matter, it is useful to understand just how rarely this issue arises.

In reality, few battered women kill their abusers, and fewer still do so in

nonconfrontational situations. While it is difficult to identify all such homicides, a

comprehensive study of appellate cases from 1902 to 1991 in which female

defendants claimed to have killed their abusive domestic partners in self-defense

estimated that 20% of such killings (roughly 45 cases) were nonconfrontational,

with 8% (roughly 18 cases) involving sleeping victims. These figures are roughly

consistent with a more recent study of self-defense cases between 1979 and 1999

in which imminence was at issue, which found that approximately 9% of such

killings were committed by battered women in nonconfrontational settings.8 While

Dressler suggests that these numbers may be underinclusive, the available

research indicates that most battered women who kill do so in the midst of a

confrontation.

It is obvious that an abuse individual has a moral right to protect themselves. This allows a well

ordered society because the rules are consistent and all citizens are afforded protection. This

allows Justice as Fairness to be upheld. I ask for the Affirmative vote.




Answers to possible Negative attacks

There is no consistent moral standard

The resolution does not say there is. The fact that law recognizes self-defense and No Good

Opportunity as a defense provides the morality in this scenario. Additionally, law codes in

England and other European countries have similar recognition of this problem.

The example in the case is only one example and does not apply here

The example is based on an actual case and most certainly applies here. The example also

illustrates that this is no hypothetical situation. Thus, the existence of the example and the

reasoning explained in it provides solid ground to vote affirmative.

Observations carry no weight in the round.

This is ridiculous on several counts. First, an observation provides the warrants upon which the

case is founded. If the observation is not refuted, then the only criterion with standing is the

Affirmative.

Second, to say an argument carries no weight is like saying “you’re wrong so I win.” It’s nice

and wishful but provides no argumentation, no logic, no refutation. It is the same as no attack at

all.

Well-ordered society is the same as social contract

It is not the same. Well-ordered society must exist in order to achieve justice as fairness. There

are plenty of examples of an unfair social contract. So we are not talking about the same thing

here.

Rawls was using well-ordered society to get to his point on social contract

Or one could argue that he was using social contract theory to help him get to Justice as Fairness.

The point is that in his book Justice as Fairness he is seeking to discuss how a society reaches a

Justice system that is fair. Thus Justice as Fairness still comes out the more important value

here.




AFFIRMATIVE EVIDENCE




DEFINING BATTERED WIFE SYNDROME

Bartal, Bronwyn F.. (1995) BATTERED WIFE SYNDROME EVIDENCE: THE

AUSTRALIAN EXPERIENCE. The British Criminology Conferences: Selected Proceedings.

Volume 1: EmergingThemes in Criminology. Papers from the British Criminology Conference,

LoughboroughUniversity, 18-21 July 1995. This volume published September 1998. Editors: Jon

Vagg andTim Newburn. ISSN 1464-4088.

Lenore Walker's exposition of the symptoms of the syndrome is often adopted without

modification. Very briefly, what has been labelled as the battered wife syndrome is the

identification of a situation where a woman has been subjected to a pattern of abuse in the

context of a violent relationship and this has had an identifiable psychological impact upon

her. Although specific details and responses vary it has been suggested that the syndrome is

the response to a three-stage process. The first has been identified as involving a tension

build up in the domestic situation and this moves into the second stage that involves the

manifestation of the tension in beatings and other forms of abuse. The third stage is identified

as one where the abuser shows remorse and may make promises of changes to his

behaviour. There may be a lull in the cycle of violence. The effect of this cessation may allow

the woman to believe that her situation will improve whereas, in fact, it rarely does. Battered

wife syndrome is a description of a recurring and escalating cycle of violent behaviour.






There are four main situations in which evidence of abuse may be used. It may be relevant to

show that the prosecution has not established the elements of voluntariness and intent

necessary to the definition of the offence; or to support a complete defence; or in support of a

partial defence, and/or it may be used in mitigation of sentence. Many prefer to restrict its use

to the latter solution.



Battered Woman Syndrome describes the psychological effects and

behavioral reactions exhibited by victims of ongoing domestic abuse. Since

Lenore Walker introduced the theory in 1979, battered defendants have relied on BWS evidence

to explain why their beliefs and actions could be considered

reasonable in the context of a self-defense claim.




DEFINING BATTERED WIFE SYNDROME



The syndrome draws on the theory of the cycle of violence in battering

relationships, explaining that the battering is neither random nor constant, but

rather it occurs in repetitive cyclical phases. This cycle leads the battered

woman to develop a sense of helplessness in which she feels powerless to

change the situation because she can neither control nor predict the next

outbreak of violence. Walker hypothesized that such “learned

helplessness” would prevent a battered woman from perceiving or acting on

opportunities to escape the violent relationship.




Melissa Dichter]

BWS is a term typically used to refer to women's experiences that result from being battered. It

has evolved from a term used to describe a broad range the victim's (e.g., learned helplessness)

and abuser's (e.g., cycle of violence) behaviors to a mental health disorder describing symptoms

experienced by an individual following traumatic exposure




Melissa Dichter]

Psychologically, BWS may apply when a woman has been abused at least

twice and exhibits a cluster of symptoms such as low self-esteem, self-blame,

anxiety, depression, and despair. The syndrome explains that a battered

woman stays in an abusive relationship as a result of these feelings of

helplessness and fear. Since a woman suffering from BWS feels she cannot

leave the relationship, she may come to believe that using deadly force is her

only option for escape.




STANDARDS FOR BATTERED WIFE SYNDROME



The court specifically found that the defendant’s conduct should not be

judged by what a “reasonably cautious person” would do under similar

circumstances, but rather what the defendant herself “honestly believed and

had reasonable ground to believe was necessary for [her] to do to protect

[herself] from apprehended death or great bodily injury.”112 This standard

requires a jury to consider the defendant’s history of battering and to take into

account the abusive relationship when deciding whether she acted

reasonably.113 Thus, evidence of BWS could show that a battered woman

might honestly and reasonably believe that her abuser would kill her when he

awakened, given his threats and prior abusive actions.




BATTERED WIFE SYNDROME DEFENSE HELPS JURIES




Evidence of BWS serves two functions in the context of a claim of self defense.

First, BWS evidence helps a jury credit the testimony of the battered woman defendant and

understand why the woman did not simply leave therelationship. Second, BWS testimony may

support the objective reasonableness requirement by showing that a reasonable person in her

circumstances would have acted in the same way. Without expert testimony on BWS to explain a

battered woman’s perceptions, a jury likely will not understand how the defendant’s reaction

could be considered reasonable.




In a majority of jurisdictions, the reasonable person standard is

a combination of objective and subjective analysis. The trier of fact

must consider the reasonableness of the defendant's actions under the

circumstances, taking into account the defendant's experience and

perceptions. Therefore, expert testimony on battered woman

syndrome is relevant to a claim of self-defense in that the trier of fact

must first understand the syndrome before it is possible to determine

whether a particular defendant was acting like a "reasonable"

battered woman.




Battered women on trial for killing their abusers often require

expert testimony on the battered woman syndrome in order to

convince the trier of fact that they had a reasonable belief of

imminent danger. For example, the batterer may be sleeping or

resting, yet still pose a threat of imminent danger to the battered

woman, perhaps because of her previous experience with the "subtle

gestures or threats that distinguish the severity of attacks."'




BATTERED WIFE SYNDROME DEFENSE HELPS JURIES





A final purpose for which expert testimony on battered woman

syndrome is admitted pertains to the defendant's duty to retreat.

Generally, a defendant is not justified in using deadly force if the

necessity of using such force can be avoided with complete safety by

retreating.' Therefore, expert testimony is relevant to prove the

reasonableness of the battered woman's belief that retreat could not

be made with complete safety.




BATTERED WOMAN SYNDROME IS AN ACCEPTED DEFENCE




The current trend in most states is toward admitting expert

testimony on battered woman syndrome so long as it is relevant.63

Holly Maguigan, associate professor of law at New York University,

performed a survey of all published battered woman cases, and

discovered that

[t]he existing evidentiary law in every jurisdiction provides

that testimony about a defendant's history of abuse by the

decedent is admissible. Expert testimony regarding the

effects of a history of abuse, usually in the form of testimony

about the "battered woman syndrome," is admissible in the

overwhelming majority of the states .... In all but two of

these states, the testimony has been ruled admissible on the

basis of existing evidentiary provisions, without the necessity

of special legislation.'




DOMESTIC VIOLENCE IS MORE FREQUENT AND MORE SEVERE

Agnew-Davies, R., Howard, L. M., & Trevillion, K. (2011). Domestic violence: responding to

the needs of patients. Nursing Standard, 25(26), 48+.

The intimate relationship between the perpetrator and recipient means that the violence is often

more frequent and severe than other forms of victimisation (Kropp et al 2005). Findings from the

British Crime Survey estimate that around 350,000 people experience domestic violence in

England and Wales per year, and that two women a week are killed by a partner or ex-partner

(Nicholas et al 2005).




Domestic abuse is a widespread problem in our culture, with

researchers estimating that between 1.6 and 4 million women suffer

abuse by their husbands or boyfriends each year."' Although a

majority of states currently allow the admission of expert testimony

on battered woman syndrome in cases of battered women who have

killed their abusers, either through judicial discretion or statutory

enactments, many women are convicted of first or second degree

murder even with such expert testimony.' Aside from various

substantive critiques of battered woman syndrome




MORE WOMEN ARE VICTIMS OF DOMESTIC VIOLENCE



When examining gender differences in incidents of abuse, evidence suggests that women are

more likely to experience frequent and severe assaults and report greater fear for their lives

compared with men (Finney 2006, Howard et al 2010a). Around 89% of people who are

subjected to four or more domestic violence assaults are women (Nicholas et al 2005). Women

are sexually assaulted by a partner approximately seven times more often than men (Povey et al

2008). Furthermore, 40% of females are killed by their partner or ex-partner, compared with 7%

for males (Povey 2005). Despite gender differences, it is important to note that men also

experience domestic violence and both men and women should have access to appropriate

support.




PARDONING A BATTERED WOMAN IS APPROPRIATE




Pardoning is already used to remedy extreme sentences for some

battered women who kill.' However, the current structure of

executive clemency is flawed, largely because pardoning is exercised

at the whim of the executive, with political considerations often

outweighing concerns of justice.24 Until problems with the substantive

law treatment of battered women who kill are resolved, pardoning

is and should continue to be utilized.




PREGNANT WOMEN AT INCREASED RISK OF DOMESTIC VIOLENCE



Evidence suggests that women are at increased risk of being subjected to physical violence

during pregnancy. Approximately 25% of women in violent relationships are assaulted for the

first time during pregnancy, and 40-60% continue to be abused while pregnant (Royal College of

Midwives 1999).




DOMESTIC VIOLENCE CAUSES MENTAL ILLNESS



Domestic violence is associated with numerous psychological consequences, including anxiety,

depression, post-traumatic stress disorder and self-harming behaviours (Golding 1999, Boyle et

al 2004). It may lead to the development of mental health problems and exacerbate existing

illnesses (Golding 1999, Howard et al 2010b). Research shows that mental health problems

increase with greater exposure to violence and reduce when violence ceases (Golding 1999).




THE LEGAL SYSTEM IS AGAINST THE ABUSED WOMAN

Investigation Discovery Debuts Documentary Sin By Silence. (2011, September 9).

Entertainment Close-up.

In many cases, the Company said the abuse sparked their path toward prison. With access inside

California's oldest women's prison, the California Institution for Women, Sin By Silence is a

gateway into the lives of women who are domestic violence's worst-case scenarios: women who

have killed their abusers and, due in part to state laws prohibiting legal defense from including

evidence of battering, are now behind bars.




FEW WOMEN KILL A DEFENSELESS ABUSER



As an initial matter, it is useful to understand just how rarely this issue arises.

In reality, few battered women kill their abusers, and fewer still do so in

nonconfrontational situations. While it is difficult to identify all such homicides, a

comprehensive study of appellate cases from 1902 to 1991 in which female

defendants claimed to have killed their abusive domestic partners in self-defense

estimated that 20% of such killings (roughly 45 cases) were nonconfrontational,

with 8% (roughly 18 cases) involving sleeping victims.7 These figures are roughly

consistent with a more recent study of self-defense cases between 1979 and 1999

in which imminence was at issue, which found that approximately 9% of such

killings were committed by battered women in nonconfrontational settings.8 While

Dressler suggests that these numbers may be underinclusive,9 the available

research indicates that most battered women who kill do so in the midst of a

confrontation.




WHY WOMEN STAY WITH AN ABUSER



To explain why a woman who has experienced this cycle remains in

the relationship, Walker posited that battered women suffer from “learned

helplessness,” as a result of which “it becomes extraordinarily difficult for such

women to change their cognitive set to believe their competent actions can change

their life situation.” Over time, the periods of respite become shorter and the

stages of tension and violence escalate—until, for some women, it becomes quite

literally “kill or be killed.”




BATTERED WOMAN SYNDROME SHOULD BE PART OF A BATTERED

WOMAN TRIAL

While there is no unanimous agreement that battered women

who kill are, or should be, legally justified in their actions,123 one

must admit that such women are in a different position with relation

to justice than are other classes of homicide defendants. 24 The fact

that a woman was battered, and the extent and duration of such

abuse, is so relevant that it demands that such a woman receive some

sort of specially tailored treatment from the criminal justice system."

z The admission of battered woman testimony itself is one

such specifically tailored treatment that demonstrates "an underlying

discomfort with not treating battered women who kill in a manner

different from other homicide defendants.




The justifications for tailored treatment of battered women who

kill include the fault of society itself in the creation of the problem of

battered women and the historic discrimination against women

claiming self-defense in the criminal justice system. Of course,

while not all battered women act in self-defense when they kill their

abusers, a substantially higher reversal rate on appeal is an additional

indicator that they are often deprived of a fair trial. Advocates

for battered women are not asking for leniency or a lowered standard,

but rather for equal treatment under the law, which can only be

achieved through specialized treatment. While substantive law

methods attempt to address this need for a specialized, tailored

treatment, there are many flaws with current methods that can

actually work against the women they purport to help or exclude

various classes of women from just treatment.




NEGATIVE CASE 1: RIGHT ACTION

This case argues that the victim of domestic violence is incapable of making a decision

based on morals. Right action is the best value here because it demonstrates how the moral

decision is made. The case points to evidence that the abuse victim suffers from a series of

mental problems that lead to the inability to distinguish between any choices. The ability to

choose is not present since the person is mentally fatigued.

The ability to make the moral choice begins with the fact that morality is not a constant.

What is moral to one individual is not moral to another. Add to this the fact that the abuse

victim suffers from a series of mental challenges including learned helplessness and depression,

the ability to make a choice based on any moral code goes out the window.

Another advantage to this approach is that when Affirmative argues that the victim can

see no way out of their situation, this negative automatically takes the upper hand. If the person

has no way of making a choice, then it does not matter whether she makes a moral choice or not

because the choice she makes is the only one she has. She does not have the ability to choose

and so cannot choose Right Action.

And when Affirmative tries to argue the victim is not mentally diminished, then they must

argue that the victim can see no other choice.

Affirmative loses on diminished capacity or Affirmative loses on no choice. Either way,

the criterion for Right Action, which is Ability to choose, is violated and so Affirmative cannot

win this debate. If there is no choice, morality cannot play into the situation because there must

be a choice in order to make the moral choice. This is why the legal system recognizes that a

person who is unable to make right choices is not responsible for their actions. But here it is not

the abuse victim that acts morally but rather society in extending compassion and understanding

to the abuse victim.




NEGATIVE CASE: RIGHT ACTION

The value I will uphold in the debate is Right Action

The Cambridge Dictionary of Philosophy, 1999.

Right Action concerns the pinciples of right and wrong that govern our choices and pursuits.

The criterion should ability to choose

The individual must be mentally able to choose the right action.

Observation: The abused victim is in an impaired state of mind and so the ability to choose the

right action is unavailable to them.

CONTENTION 1: NO SINGLE MORAL CODE

Gert, Bernard, (2011)"The Definition of Morality", The Stanford Encyclopedia of Philosophy

(Summer 2011 Edition), Edward N. Zalta (ed.), URL =

<http://plato.stanford.edu/archives/sum2011/entries/morality-definition/>.

Ethical relativists hold that only when the term “morality.” is used in this descriptive sense is

there something that “morality” actually refers to, namely, a code of conduct put forward by a

society. They claim that it is a mistake to take “morality.” to refer to a universal code of conduct

that, under some plausible conditions, would be endorsed by all rational persons. Although

ethical relativists admit that many speakers of English use “morality” to refer to such a universal

code of conduct, they claim such persons are mistaken in thinking that there is anything that is

the referent of the word “morality” taken in that sense.

CONTENTION 2: MORALITY IS AMBIGUOUS




On all accounts of morality, it is a code of conduct. However, on ethical or group relativist

accounts or on individualistic accounts, apart from avoiding and preventing harm, morality has

no special content or features that distinguishes it from nonmoral codes of conduct, such as law

or religion. Just as a legal code of conduct can have almost any content, as long as it is capable of

guiding behavior, and a religious code of conduct has no limits on content, all of the relativist

and individualist accounts of morality, have almost no limit on the content of a moral code.




CONTENTION 3: BATTERED WIFE SYNDROME DEFENSE

DEMONSTRATES MENTAL DISORDER



Notwithstanding the increasing use of BWS evidence by battered women

defendants since the theory was first introduced into American courts, it has

been subject to much censure. Critics have disparaged the theory for several

key reasons: the theory (1) implies that battered women act as a result of a

mental disorder rather than reasonableness; (2) suggests a stereotypical model

for all women in battering relationships that does not, in fact, fit many women;

and (3) uses a learned helplessness model that is inconsistent with the battered

woman’s use of self-defense.




Answers to possible Affirmative attacks

If there is no choice then the only choice must be the moral choice

That is absurd. To make a moral choice there must be at least two choices. To do that which

cannot be avoided no matter what one does is not a moral or immoral choice but rather the

inevitable action. At best no choice is amoral – meaning neither moral or immoral.

Not all victims suffer from Battered Woman Syndrome

Then they have committed cold blooded murder. There must be some extenuating circumstance

that puts the person in the frame of mind that the only way out of a situation is by killing another

human being or else that person is an immoral murderer.

Men sometimes kill abuse spouses

The Battered Wife syndrome would still be used. It would apply to any person.

No fair opportunity defense says women are not mentally ill

But the no fair opportunity defense tells us that the abuse victim has no opportunity to choose

any other course of action which still violates the negative criteria and eliminates the ability to

act morally or immorally.

By admitting that they have no choice, you admit that killing the abuser is moral

By admitting they have no choice, I demonstrate that society is the one that makes the moral

choice of excusing the person for violating its moral standards because the person could make no

choice. Killing is still immoral. But the person had no choice and so society excuses it. That

does not mean society thinks it is moral.




NEGATIVE CASE 2: JUSTICE AS FAIRNESS

The resolution reads in such a way that it is fair to say that it suggests that the victim was

capable of making a rational decision when they killed their abuser..

This case argues that since the abused victim of domestic violence suffers from a mental

illness, they are not able to make a rational decision on the morality of an action. Since they

cannot make the decision, the resolution violates well-ordered society since they are not capable

of making rational or moral decisions.

It may be true that society will understand that it is not moral to convict the battered

woman but that decision is made on the fact that the person could not be held responsible due to

their mental state – not their capacity to understand morality.

Any case Affirmative makes is going to cast the victim as being at their breaking point.

They had no idea how to get out of the situation. Battered Woman Syndrome describes a person

who has become dependent or learned to acquiesce to their abuser until they see no way to

prevent the abuse. The person decides that the other person will kill them and so they decide to

protect themselves by killing their potential killer beforehand.

Since this person is incapable of participating in the well-ordered society because they

are not capable of processing the rules of society and the consequences of breaking those rules.

What makes society function as well organized is the fact that society itself makes the

judgment and excuses the immoral act on the ground that the person did not know what they

were dong. They are not punished for the crime because they did not know what they were doing

– not because they chose a moral course of action.




NEGATIVE CASE : JUSTICE AS FAIRNESS

My Value is: Justice as Fairness

Rawls, John. (1993) tells us in Political Liberalism. (P. 9.)

Justice as Fairness uses a fundamental organizing idea within which all ideas and principles can

be systematically connected and related. This organizing idea is that of society as a fair system

of social cooperation between free and equal persons viewed as fully cooperating members of

society over a complete life.

My Criterion is: Well Ordered Society

Rawls, John. (2001) Justice as Fairness: A Restatement. Cambridge: Belknap Press. P. 9

One reason we form this idea is that an important question about a conception of justice for a

democratic society is whether, and how well, it can serve as the publicly recognized and

mutually acknowledged conception of justice when society is viewed as a system of cooperation

between free and equal citizens from one generation to the next. A political conception of justice

that could not fulfill this public role must be, it seems, in some way seriously defective. The

suitability of a conception of justice for a well ordered society provides an important criterion for

comparing political conceptions of justice.

OBSERVATION: In a well ordered society, each person must understand the rules of the

society and the consequences for breaking those rules. But this can only apply to those who are

capable of understanding the rules. The battered woman is not capable of this feat.

CONTENTION 1: MORALITY APPLIES TO RATIONAL INDIVIDUALS




Defining morality as a public system incorporates the essential feature that everyone who is

subject to moral judgment knows what kinds of actions morality prohibits, requires, discourages,

encourages, and allows. The definition of “public system” also guarantees that it is never

irrational to act morally. That morality applies to all rational persons makes clear that the sense

of “morality” being defined is that guide to conduct that applies to all rational persons. It would

take considerably more space than is appropriate here to show that defining morality as a public

system that applies to all rational persons also results in morality being a universal guide to

behavior that all rational persons would put forward for governing the behavior of all moral




agents. I should make clear that the claim that all rational persons would put forward this system

only follows if they satisfy the two plausible conditions specified previously.

CONTENTION 2: DOMESTIC VIOLENCE CAUSES MENTAL ILLNESS



Domestic violence is associated with numerous psychological consequences, including anxiety,

depression, post-traumatic stress disorder and self-harming behaviours (Golding 1999, Boyle et

al 2004). It may lead to the development of mental health problems and exacerbate existing

illnesses (Golding 1999, Howard et al 2010b). Research shows that mental health problems

increase with greater exposure to violence and reduce when violence ceases (Golding 1999).

The resolution is false because it expects that a mentally ill person has the capacity to make

moral decisions. Note the resolution it is morally permissible for the victim to use the force.

However, the fact that a mentally ill person commits the act, takes morality out of the picture. It

might be moral for society to excuse the mentally ill abused, but the resolution does not speak to

the society but rather to the victim.




Answers to possible Affirmative Attacks

The fact that a person is abused does not mean they are mentally ill.

Whether you argue Battered Woman Syndrome, self-defense, or any other effect of domestic

abuse you are talking about a person who can no longer judge right from wrong.

Not all abusers are killed in their sleep

I never said they were. I have pointed out that your case provides a person who is mentally

unstable due to the abuse. Learned dependency is a mental condition similar to brain washing.

Even in a scenario where the individual is actively fighting an attack from the abuser, they are

not weighing the consequences of the morality of the defense. They are acting on an instinct to

survive. The moral equation is taken out entirely in this situation.

Then you agree with Affirmative

No, in fact Affirmative could not be more off the track. Affirmative want to contend that the

action taken by the murdering abused person is moral. However, morality does not enter into the

decision to kill. We have seen evidence that domestic violence causes mental illness. We do not

execute mentally ill people because they do not know what they are doing – not because what

they did was moral.

Your case applies only to a few people

No, it applies to all. But even if it did apply to only a few, that would be enough since your

resolution applies to all abused victims, unless all are morally responsible then your resolution is

false. Finally, your admission that my case applies to some domestic violence victims

demonstrates the truth of my position and the falsity of yours.




NEGATIVE EVIDENCE




PROBLEMS WITH THE BATTERED WIFE SYNDROME






One of the problems with the use of the syndrome is that it focuses on the psychiatric health

of the woman rather than looking at the circumstances surrounding her actions. Thus her

social, economic, cultural and political circumstances are ignored. The focus should be on the

situation in which the woman was placed and what it is about her circumstances which

caused her to kill her abuser. In this way her actions may be seen as rational, necessary and

reasonable. It is suggested that the focus on the woman's psychiatric condition is easier for

the judiciary and others to cope with. It is maintainable without altering the stereotype of how

women should behave. I'll not go into any detail here but just give you the gist of the analysis.

This approach allows the Madonna/whore dichotomy to be maintained and thus the women is

mad rather than bad. The problem is the woman and not that of society and therefore the

problem can be solved by treating the woman. It allows power relationships to be maintained

and a paternalistic response. It does not threaten male hegemony.

Alternatively, if we look at the woman's circumstances and what it was that necessitated her

choosing lethal force, we treat the woman as a rational human being who has assumed

power and has exercised the rights which her abuser has denied her throughout the years of

the relationship. Enough said. I hope my generalisations are not regarded as polemic for I am

quite prepared to support my analysis by arguing the point at a later time.




REQUIREMENTS FOR SELF DEFENSE DEFENSE



To make a successful self-defense claim, a defendant must show that she

had a reasonable belief that she was in imminent danger of great bodily harm

or death at the time she acted.32 Most courts have found that a self-defense

claim has both subjective and objective elements.33 First, the defendant must

have subjectively believed she was in danger of death or serious harm at the

time she acted and thus needed to use deadly force to repel an imminent,




TRADITIONAL HANDELING OF BATTERED WOMEN WHO KILL

ABUSER NOT ADEQUATE



However, the traditional reasonableness and imminence requirements are

crucial components of self-defense law precisely because they help ensure that

only unavoidable killings are justified.18 One can hardly argue that a sleeping

abuser presents a truly unavoidable threat. Hence, courts that stretch the

traditional self-defense requirements to accommodate battered women distort

the traditional elements of the law and may encourage violent self-help. On

the other hand, jurisdictions that refuse to allow battered women who

preemptively kill to claim self-defense, thus resulting in murder or

manslaughter convictions, may be out of step with notions of substantive

justice. The record number of pardons and commutations in recent years for

battered women convicted of murder reveals that this is most likely the case.

Therefore neither approach is satisfying.



Self-defense is generally defined as the justifiable use of force upon

another when one reasonably believes that such force is necessary to protect

oneself from imminent danger of unlawful bodily harm.26 The force used must

not be excessive in relation to the harm threatened.27 Thus, a person is

justified in using deadly force only if there is a reasonable belief that such

force is necessary to protect herself from imminent, unlawful deadly force by

another.



Self-defense law also requires that a defendant kill only in response to a

threatened harm that is immediately going to occur. Otherwise, the selfdefense

claim is negated, and a jury is not given a self-defense instruction.48

Battered women defendants who kill their abusers preemptively, rather than in

response to an ongoing, physical attack, do not appear to meet this requirement

because of the lack of imminent danger posed by a sleeping abuser.49 Thus,

when self-defense law is strictly applied, a jury will not be allowed to consider

a self-defense claim in nonconfrontational cases




PREEMTIVE KILLING IS NOT SELF-DEFENSE



Battered women defendants who kill their abusers often claim they acted in

self-defense. Generally, however, battered women who preemptively kill

their abusers cannot prove the traditional elements of self-defense, which

include reasonableness and imminence. As a result, the theory of BWS was

developed to support a battered woman’s self-defense claim by showing how

the woman might have reasonably thought her actions were defensive and

necessary.



In a majority of jurisdictions, a battered woman who kills her sleeping

abuser is not entitled to a jury instruction on self-defense. The rationale used

by these jurisdictions is that because the woman did not kill to repel an

ongoing unlawful attack or an imminent assault, she cannot fulfill the objective

reasonableness requirement of self-defense. Courts employing traditional,

objective notions of self-defense generally decide as a matter of law that the

“fatal blow” could not have been struck in self-defense.81 Therefore, in most

jurisdictions, as a matter of law the battered woman’s actions are not classified

as self-defense but as a culpable homicide like premeditated murder.




BATTERED WIFE SYNDROME IS NOT A DEFENSE




Melissa Dichter]

It is in the legal (rather than clinical) arena that BWS continues to be most firmly embedded and

to receive the most attention. Indeed, the term BWS appears in some state statutes, as well as in

numerous legal decisions. Even today, it is not uncommon to hear about cases that involve expert

testimony on BWS. Notwithstanding widespread misconception, BWS is not a legal defense.

Regrettably, even to this day, many myths persist about a specialized legal defense using the

BWS. Osthoff and Maguigan (2005) outline five basic misconceptions related to the legal

defense of women exposed to domestic violence. The most central misconception is that

defendants who have been battered invoke a separate ìbattered syndrome defense.î There is no

special ìbattered women's defenseî or ìbattered woman syndrome defenseî (Maguigin, 1991;

USDOJ/DHHS, 1996). Other important misconceptions are that expert testimony is only about

BWS and that it is based on an analysis of the victimization dynamic only, excluding information

about women's strengths, including responsibility (e.g., taking care of her children, providing

economic resources to her family), agency (e.g., making decisions intended to protect herself and

her children from violence and abuse), and capacity (e.g., competence to act independently and

endurance to continue functioning in the face of great adversity).




Melissa Dichter]

Even though expert witness testimony can be useful in cases involving domestic violence, there

are serious limitations of using BWS as the framework for this work. Where expert testimony is

used to explain an individual's state of mind or behavior, to support a particular defense, or to

bolster credibility (when allowed) in situations that might otherwise seem unreasonable or

unlikely (Parish, 1996) , a packaged ìsyndromeî can be convenient and have the perceived

legitimacy of a ìdiagnosisî (Schuller & Hastings, 1996). A number of factors, however, make this

package particularly problematic. The most fundamental of these concerns is the lack of

relevance of BWS to the issues before the court. A second concern is the lack of a standard and

validated definition of BWS with which to guide experts' use in evaluation and testimony. Third,

BWS does not adequately incorporate the vast scientific literature on victims' response to

battering. Finally, BWS suggests a pathology that can stigmatize the defendant unnecessarily and

inaccurately.








Melissa Dichter]

According to Federal Rule 702, ""If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto

in the form of an opinion or otherwise"" (Federal Rule of Evidence, 2009). There is a great deal

of scientific literature that can be brought to bear and is potentially helpful to understand the

evidence and to determine facts in issue in domestic violence cases. However, BWS is simply

insufficient to this task.




Melissa Dichter]

Without standard and validated criteria, we do not have a way to determine with reliability who

meets criteria for BWS and who does not. This is a problem in the legal context because, without

a scientifically accepted definition or standard criteria, the use of BWS can fail to meet basic

standards of scientific reliability and, therefore, may be inadmissible as expert testimony in court

under the scientific reliability prong according to Daubert v. Merrl Dow Pharmaceuticals (1993).

In sum, because it is not clear what is meant when we say BWS and because we do not have a

clear way of measuring the condition, BWS is not even a good shorthand term for explaining the

experience of women who have been abused by their intimate partners. Thus, the lack of a clear

definition of BWS makes it difficult for jurors and judges, attorneys, parties to a legal case and

the lay public, to understand even what is being referred to when the term BWS is used.














woman’s use of self-defense.74 Though BWS was designed to help jurors

understand how a battered woman who killed her abuser might have acted

reasonably, some commentators claim that BWS evidence has the overall

effect of emphasizing the stereotype of the unreasonable, “pathological”

woman.75 As a result, it is questionable whether BWS is still helpful or

appropriate.




PROBLEMS WITH BATTERED WIFE SYNDROME




Melissa Dichter]

However, through more than three decades of accumulated empirical research, we have come to

recognize major limitations in both the original and revised conceptualizations of BWS, as well

as with the term itself (Osthoff & Maguigan, 2005). The use of BWS to describe the experience

of women who have been victimized by intimate partner violence or to explain their response to

such violence and abuse is both misleading and potentially harmful. As currently defined, the

construct of BWS has several important limitations: (1) BWS is often not relevant to the central

issues before the court in a specific case, (2) BWS lacks a standard and validated definition, (3)

BWS does not reflect current research findings necessary to adequately explain either the

experience of individuals who have been battered or their behavior in response to battering, and

(4) BWS can be unnecessarily stigmatizing










woman’s use of self-defense.74 Though BWS was designed to help jurors

understand how a battered woman who killed her abuser might have acted

reasonably, some commentators claim that BWS evidence has the overall

effect of emphasizing the stereotype of the unreasonable, “pathological”

woman.75 As a result, it is questionable whether BWS is still helpful or

appropriate.76








Melissa Dichter]

Walker (1977) applied the theory of learned helplessness to describe women's seeming lack of

effort to leave or escape an abusive relationship or their failure or inability to take action to

protect themselves and their children.

Seligman and colleagues (Peterson, Maier, & Seligman, 1993) have clearly refuted Walker's use

of learned helplessness by stating that

In sum, we think the passivity observed among victims/survivors of domestic violence is a

middling example of learned helplessness. Passivity is present, but it may well be instrumental.

Cognitions of helplessness are present, as is a history of uncontrollability. But there may also be

a history of explicit reinforcement for passivity. Taken together, these results do not constitute

the best possible support for concluding that these women show learned helplessness

Cycle of violence




Melissa Dichter]

Another early definition of BWS referred to the cycle of violence (Walker, 1984), a theory that

describes the dynamics of the abuser's behavior, which is characterized in three stages: tension

building, acute battering, and contrite loving. The theory suggests that the abuser keeps the

survivor within his control largely by the contrite loving behaviors that follow even severe

violence. There is little empirical evidence testing the cycle of violence theory. Walker's own

early research showed that only some of the women interviewed in her study reported patterns of

abuse consistent with this theory, with 65% of all cases reporting evidence of a tension-bulding

phase and 58% of all cases reporting evidence of loving contrition afterward (Walker, 1984).

Further, a recent study (Copel, 2006) of the patterns of abuse in a small sample of women with

physical disabilities did not find a contrite loving phase in the aftermath of abuse.








Melissa Dichter]

Walker again revised the definition of BWS in 2006 to include not only the three symptom

clusters of PTSD (re-experiencing, numbing of responsiveness, hyperarousal), but also three

additional criteria (disrupted interpersonal relationships, difficulties with body image/somatic

concerns, and sexual and intimacy problems) (Walker, 2006). Many ìassociated featuresî (e.g.,

impaired ability to regulate emotion, dissociative symptoms, shame, feeling permanently

damaged, hostility, social withdrawal, feeling constantly threatened, impaired relationships with

others) often accompany PTSD, but these are not included in the criteria for its diagnosis.

Walker has not provided a rationale for selecting a particular subset of these associated features

and for including them as criteria for BWS.




Melissa Dichter]

During the 1980s, BWS was included in educational programs and materials of many domestic

violence advocates, in trainings for lawyers and judges and was used by some therapists and

counselors to describe the experiences of women exposed to domestic violence. Having a

scientific-sounding term like BWS to describe what they learned from talking and working with

women who had experienced domestic violence proved useful in some cases; it increased

credibility with other professionals and the general public. However, as the field developed,

more and more practitioners grew to understand the problems and limitations of using BWS;

most stopped using the term. During the past 15 years, numerous articles and books have been

published discussing the limitation of BWS (Ferraro, 2003; Ferraro, 2006; McMahon, 1999;

Schuller, Wells, Rzepa, & Klippenstine, 2004; Stark, 2007; USDOJ/DHHS, 1996). Instead,

today many practitioners use the term ìbattering and its effectsî to describe the experiences of

women exposed to domestic violence (Osthoff & Maguigan, 2005). Even so, it is important to

note that some experts and attorneys continue to utilize the term BWS in their work.








Melissa Dichter]

An initial limitation of BWS testimony is that it may not be relevant to the specific issues before

the court in a particular case; that is, PTSD (whether referred to as BWS or not) simply may not

be relevant for those issues which require explanation by the expert witness.

For example, BWS may not be helpful for explaining why a woman returns to an abuser after

separating or fails to call police. She may be reluctant to tell others about the abuse. Expert

witness testimony may be needed to challenge mischaracterizations when a woman is well-

educated, has access to economic resources, or has specialized training (e.g., police officer) since

a judge or jury often does not understand how such a woman could not simply leave or protect

herself against an abusive partner. BWS is not particularly relevant for these issues. A woman

who appears unemotional right after or right before shooting her abusive husband may be

thought merely to have killed in ìcold blood.î PTSD may be relevant here, but dissociation as a

part of acute stress disorder may be even more accurate. Certain experiences that an abused

woman may have had (e.g., substance abuse history, prostitution, criminal history) can easily

lend themselves to victim blaming. Expert witness testimony may be required to understand how

these experiences do not necessarily negate the reality that the woman may have been abused by

her partner, or that she perceived her partner's behavior as an imminent threat to her safety.

These particular experiences may make it even more difficult for a woman who is being abused

to seek help and effectively protect herself and her children from abuse. Typically, BWS is not

adequate or perhaps even relevant to these issues.








Melissa Dichter]

The inclusion of associated features in Walker's 2006 revised definition of BWS further

contributes to the lack of standardization in its definition. The reliability of several of the

measurement scales used in Walker's study (2006) to operationalize BWS using these additional

indicators of BWS is unacceptably low. Further, no threshold level of these additional criteria for

defining BWS was described. For example, how much or what kind of body image distortion is

required to meet criterion for BWS? Does sexual dissatisfaction refer to an abusive partner or

someone else and how much dissatisfaction is required to be considered BWS? Again, how

much loss of the perception of power and control is necessary? Regrettably, Walker's newer

definition has clouded the criteria for assessing BWS even more than had previously been the

case. Perhaps more importantly, these issues really have little relevance for many issues raised in

criminal cases?




Melissa Dichter]

BWS is often used as if it were a standard against which to determine whether a particular

woman is justified in her actions against an abusive partner, is credible as a woman claiming to

have experienced domestic violence, or deserves consideration in some other way. While we

know that there is a range of common reactions to being battered by an intimate partner (Dutton,

Hohnecker, Halle, & Burghardt, 1994) , how an individual woman experiences or reacts to being

battered will vary depending on her psychological, social, cognitive and practical circumstances.

Given this reality, it is not appropriate to describe the profile of a battered woman or to describe

the effects of battering as a syndrome.




BATTERED WOMAN SYNDROME DEMONSTRATES THE WOMAN

HAS A MENTAL DISORDER



Professor Anne Coughlin, a critic of BWS, has observed that the syndrome

“defines the woman as a collection of mental symptoms, motivational deficits,

and behavioral abnormalities; indeed, the fundamental premise of the defense

is that women lack the psychological capacity to choose lawful means to

extricate themselves from abusive mates.”141 Despite its best intentions, BWS

reinforces the stereotypical idea that the battered woman is passive, helpless,

and psychologically unable to escape a battering relationship.142 Under BWS,

a battered woman who kills her abuser is someone out of touch with objective

reality who acts as she does because she suffers from a cognitive disorder.143

Even the use of the term “syndrome” emphasizes the woman’s abnormality.



This undermines the very purpose of BWS, which is to show how a battered

woman’s use of deadly self-help against her abuser is reasonable given the

extraordinary circumstances.145 As a result, even the Department of Justice has

concluded that the term “BWS” fails “to reflect the breadth of empirical

knowledge now available concerning battering and its effects” and is therefore

“no longer useful or appropriate.”



Allowing an expansion of traditional self-defense law by using BWS to

help battered women, as minority jurisdictions have done, is unsatisfying

because it emphasizes the stereotype of the “pathological woman.”

Furthermore, stretching traditional self-defense requirements may encourage

violent self-help and diminish the sanctity of human life by sending a message

to society that the law sanctions killings that may have been avoidable.




JURY NULLIFICATION OFTEN AQUITES WOMEN WHO KILL THEIR

ABUSER



In a homicide case with a battered woman defendant, jurors may be

presented with a choice between two extreme outcomes: convict the woman of

murder or completely acquit her on self-defense grounds.130 Self-defense is a

complete defense,131 but if a battered woman has not technically met the

requirements of the defense, she risks being convicted as an intentional

killer.132 Nevertheless, jurors and society may feel that even if the battered

woman’s actions were objectively unreasonable, they were understandable,

and thus the jurors may be unwilling to convict her of a culpable intentional

homicide.133



Through jury nullification, juries have the ability to acquit battered women

defendants or convict them of lesser charges—even if the law technically

requires a murder conviction.134 Jury nullification occurs when jurors refuse to

follow the law and instead reach a result that is in accord with their own

feelings of justice.135 When a jury nullifies evidentiary standards, it sends a

message that it is unwilling to impose the outcome dictated by current law.




MURDER IN A NON-CONFRONTATIONAL SITUATION IS NOT

MORAL

Dressler, Joshua. [2006] Battered Women and Sleeping Abusers: Some Reflections. OHIO STATE

JOURNAL OF CRIMINAL LAW [Vol 3:457]

The thesis of this Commentary is that the proposition that a battered woman is

justified in killing her sleeping abuser, although well-meaning, is wrong, and that

any serious effort to expand self-defense law—for battered women but also,

presumably, for others—to permit such killings is a “reform” society ultimately

will regret. Although there is reason to reform—and expand—self-defense law, I

fear that the result of expanding self-defense law to the extent required to justify

the killing of a sleeping abuser would be the coarsening of our moral values about

human life and, perhaps, even the condonation of homicidal vengeance.



The first thing to keep in mind is that for most of our history the criminal

law’s answer to the Judy Normans of our society has been that they cannot claim

self-defense—they are not even entitled to have the jury instructed on the defense.

The traditional rule, which still prevails in most jurisdictions, is that self-protective

force can only be used to repel an ongoing unlawful attack or what the defender

reasonably believes is an imminent unlawful assault;7 and “imminent” or

“immediate” has come to mean that the attack will occur momentarily, that it is

just about underway.8 By definition, of course, no assault is taking place or

imminent in nonconfrontational cases.




DEFINING MORALITY




Among those who use “morality” normatively, all hold that “morality” refers to a code of

conduct that applies to all who can understand it and can govern their behavior by it. In the

normative sense, morality should never be overridden, that is, no one should ever violate a moral

prohibition or requirement for non-moral considerations. All of those who use “morality”

normatively also hold that, under plausible specified conditions, all rational persons would

endorse that code. Moral theories differ in their accounts of the essential characteristics of

rational persons and in their specifications of the conditions under which all rational persons

would endorse a code of conduct as a moral code. These differences result in different kinds of

moral theories.




However, there are now other descriptive senses of “morality.” In the sense most closely related

to the original descriptive sense, “morality” refers to a guide to behavior put forward by some

group other than a society, for example, a religious group. When the guide to conduct put

forward by a religious group conflicts with the guide to conduct put forward by a society, it is

not clear whether to say that there are conflicting moralities, conflicting elements within

morality, or that the code of the religious group conflicts with morality. Members of the society

that are also members of a religious group may regard both guides as elements of morality and

differ with respect to which of the conflicting elements of the moral guide they consider most

important. There are likely to be significant moral disputes between those who consider different

elements as more important.




NO SINGLE MORAL CODE




“Morality”when used in a descriptive sense has an essential feature that “morality” in the

normative sense does not have, namely, that it refers to codes of conduct that are actually put

forward and accepted by some society, group, or individual. If one is not a member of that

society or group, and is not that individual, accepting a descriptive definition of “morality” has

no implications for how one should behave. If one accepts a moral theory's account of rational

persons and the specifications of the conditions under which all rational persons would endorse a

code of conduct as a moral code, then one accepts that moral theory's normative definition of

“morality. ” Accepting a normative definition of “morality” commits a person to regarding some

behavior as immoral, perhaps even behavior that one is tempted to perform. Because accepting a

normative definition of “morality” involves this commitment it is not surprising that

philosophers seriously disagree about what normative definition to accept.




Ethical relativists hold that only when the term “morality.” is used in this descriptive sense is

there something that “morality” actually refers to, namely, a code of conduct put forward by a

society. They claim that it is a mistake to take “morality.” to refer to a universal code of conduct

that, under some plausible conditions, would be endorsed by all rational persons. Although

ethical relativists admit that many speakers of English use “morality” to refer to such a universal

code of conduct, they claim such persons are mistaken in thinking that there is anything that is

the referent of the word “morality” taken in that sense.




The definition of “morality” as referring to the code of conduct accepted by the members of a

society causes some problems because in many large societies, not all members of the society

accept the same code of conduct. For the same reason adopting a somewhat more general

definition of “morality” as the code of conduct accepted by the members of a group also causes

problems because it is not only possible, but also it is often the case, that not all members of any

group accept the same code. A natural response to these problems is to switch attention from

groups to individuals. If what is important is what code of conduct people accept, and members

of a group do not always accept the same code of conduct, then why be concerned with groups at

all?




MORALITY IS AMBIGUOUS




However, when a person simply claims that morality prohibits or requires a given action, then

the term “morality” is genuinely ambiguous. It is not clear whether it refers to (1) a guide to

behavior that is put forward by a society, either one's own or some other society; (2) a guide that

is put forward by a group, either one to which the person belongs or another; or (3) a guide that a

person, perhaps himself, regards as overriding and wants adopted by everyone in his group, or

(4) is a universal guide that all rational persons would put forward for governing the behavior of

all moral agents. When a person uses “morality” to refer to a guide to conduct put forward by a

group, unless it is his own group, it is usually only being used in its descriptive sense. No one

referring to morality in the descriptive sense of “morality” need be endorsing it. When

“morality” refers to a guide to conduct accepted by an individual, unless that individual is

himself, it is usually being used in its descriptive sense. However, if the individual is referring to

his own morality, he is usually using it normatively, that is, he is claiming that all rational

persons would put it forward.




Other moral theories do not hold quite so strong a view about the universality of knowledge of

morality, but many hold that morality is known to all who can be legitimately judged by it. Baier,

Rawls and contractarians deny that there can be an esoteric morality, one that judges people even

though they cannot know what morality prohibits, requires, etc. For all of the above, morality is a

public system, that is, it is a system that is known to all those to whom it applies and it is not

irrational for any of those to whom it applies to follow it. Moral judgments of blame thus differ

from legal or religious judgments of blame in that they are not made about persons who are

legitimately ignorant of what they are required to do. Act consequentialism seem to hold that

everyone should know that they are morally required to act so as to bring about the best

consequences, but even they do not think judgments of moral blame are appropriate if a person is

legitimately ignorant of what action will bring about the best consequences




MORALITY IS AMBIGUOUS




On all accounts of morality, it is a code of conduct. However, on ethical or group relativist

accounts or on individualistic accounts, apart from avoiding and preventing harm, morality has

no special content or features that distinguishes it from nonmoral codes of conduct, such as law

or religion. Just as a legal code of conduct can have almost any content, as long as it is capable of

guiding behavior, and a religious code of conduct has no limits on content, all of the relativist

and individualist accounts of morality, have almost no limit on the content of a moral code.




CONSEQUENTIALISTS DIFFER ON MORALITY




Some contemporary act consequentialists (Singer) claim that morality requires doing that act that

would result in the best overall consequences, even though, given that the consequences of all

acts continue forever, no human being can possibly know what act would result in the best

overall consequences over time. For these consequentialists, as well as for Kant, morality applies

to omniscient beings as well as to fallible, vulnerable human beings. Some rule consequentialists

(Hooker) claim that morality requires following that rule that would result in the best overall

consequences if everyone followed or accepted it, and so, at least implicitly, hold that morality

applies only to fallible and vulnerable beings. Different consequentialists, both act and rule

consequentialists, differ in their views about what consequences count as best, so that

consequentialism does not provide a single guide to conduct for all moral agents. This is a

significant flaw to those who claim that being subject to moral judgment is incompatioble with

unavoidable ignorance of what general kinds of actions morality prohibits, requires, discourages,

encourages, and allows.




MORALITY AS A PUBLIC SYSTEM




Defining morality as a public system incorporates the essential feature that everyone who is

subject to moral judgment knows what kinds of actions morality prohibits, requires, discourages,

encourages, and allows. The definition of “public system” also guarantees that it is never

irrational to act morally. That morality applies to all rational persons makes clear that the sense

of “morality” being defined is that guide to conduct that applies to all rational persons. It would

take considerably more space than is appropriate here to show that defining morality as a public

system that applies to all rational persons also results in morality being a universal guide to

behavior that all rational persons would put forward for governing the behavior of all moral

agents. I should make clear that the claim that all rational persons would put forward this system

only follows if they satisfy the two plausible conditions specified previously.




IF THERE IS A MORALITY IT PROVIDES FOR PREVENTING HARM

TO ANOTHER




The final characteristic of morality — that it has the lessening of evil or harm as its goal — is

also somewhat controversial. The Utilitarians talk about producing the greatest good as the goal

of morality. However they include the lessening of harm as essential to producing the greatest

good and almost all of their examples involve the avoiding or preventing of harm. The paradigm

cases of moral precepts involve rules that prohibit causing harm directly or indirectly, such as

rules prohibiting killing, causing pain, deceiving, and breaking promises. Even those precepts

that require or encourage positive action, such as helping the needy, are almost always related to

preventing or relieving harms. An examination of the paradigm examples of those moral precepts

that are moral rules makes it clear that all of them are prohibitions of those kinds of actions that

directly or indirectly cause harm to others; an examination of the paradigm examples of those

moral precepts that are moral ideals makes it clear that all of them involve the prevention or

lessening of harms. It would be possible to include these paradigm examples of moral precepts,

e.g., do not kill, do not lie, and help the needy, in the normative definition of morality, but it not

necessary to do so, because the proposed definition is sufficient to guarantee that these paradigm

moral precepts will be part of morality. It should be clear that all rational persons would include

these paradigm moral precepts in the moral code that they would put forward to guide the

behavior of all moral agents.




BATTERED WOMAN SYNROME STATUTES HURT WOMEN




The increasing use of expert testimony on battered woman

syndrome to address the problem of battered women who kill has

actually resulted in some women being harmed and their legal options

restricted." The intense focus on battered woman syndrome has

created a "paradigmatic battered woman" who embodies all of the

characteristics typically associated with battered women. 49 Characteristics

of the stereotypical battered women include never previously

fighting back, never attempting to leave the batterer, and never

calling the police or notifying other authorities.' 0 Of course, it is

practically impossible for any one battered woman to fit perfectly into

the stereotype of a battered woman, but courts have created a

"rigidly-defined and narrowly-applied definition,"




"Some courts seem to treat battered woman syndrome as a standard to which all battered

women must conform rather than as evidence that illuminates the defendant's behavior and

perceptions.""15 Women who do not fit into the exact stereotype of a battered woman may not

receive expert testimony or a jury instruction on self-defense at trial.




Courts may restrict the use of expert testimony on battered

woman syndrome to those women who fit the strict paradigm of the

battered woman. This restriction can create a catch-22 for some

battered women. For example,

[i]f the defendant has tried to resist in the past, the court

accepts this as evidence that rebuts her status as a battered

woman. On the other hand, if the defendant has never

attempted to fight back, the prosecution argues that the

defendant did not act as a "reasonable man."




“NO FAIR OPPORTUNITY” CLAIM IS THE BETTER WAY



We do not need to focus on syndromes, however, to provide a potential

excuse for a severely battered women. We can provide a theory for acquittal that is, I think, more consistent with our moral intuitions, and which is not potentially

demeaning to the woman. The solution is found in applying the no-fair opportunity

prong of excuse theory. A no-fair-opportunity excuse claim is based

on some external factor that acts on the individual in a way that convinces us that she did not have a fair opportunity to conform her conduct to the law (the third

criterion above). The key word here, of course, is fair. This is a normative

judgment. We do not need expert psychiatric testimony to handle this question, because this form of excuse recognizes that there is nothing wrong with the

woman—what was “wrong” were external circumstances that we believe, but for

the grace of God, would probably have caused us, as well, to act unlawfully.



Can we make a plausible no-fair-opportunity claim in Judy Norman’s case?

Yes. Think about what a jury might have asked itself if it had been given the

opportunity. Could Judy have avoided the situation by walking out the door?

(Remember, we are not using syndrome evidence, so the battered woman’s learned helplessness, if it exists, is not relevant.) To answer that question, the jury would

likely ask itself other questions: Did Judy Norman have children, thus making it

more difficult for her to leave? Yes. She had four living at the time of J.T.’s death. What then were her options? Leave them with J.T.? That would be

unthinkable for any loving parent. Leave with them? Where would she have

gone? How would she have supported the children? What safety nets had been set up in her community to make such an option realistic? Moreover, what would

have prevented J.T. from finding her and “punishing” her for her departure?

Rather than leave, could she have called the police for help? She did, and they did

nothing to protect her. And, so on.




“NO FAIR OPPORTUNITY” CLAIM IS THE BETTER WAY



This is the way to try to make the case for excuse, one that a jury might—or might not—accept given the facts of a particular case. And, lo and behold, in

about a dozen states, there already is a recognized statutory basis—one apparently

not appreciated by enough defense lawyers—for making this claim. It is the

defense of duress, as defined by the Model Penal Code.31 The Code provides a defense if a person is coerced to commit a crime—including murder—as the result

of prior use of unlawful force upon the person (there is a lot of that in domestic

violence cases) and/or imminent or non-imminent threats by the aggressor to use unlawful force upon the person in the future, if a person of reasonable firmness in

the actor’s situation would have been unable to resist committing the crime.




AN IMMORAL ACT THAT IS EXCUSED DOES NOT CHANGE THE

MORALITY OF THE ACT



The law rightly expects us to fly straight, to obey the relatively uncomplicated

rules that “thou shalt not murder, rape, or rob.” As Professor Stephen Morse has

wisely observed, many factors serve to make it possible for people generally to

“stay on the straight and narrow.” But, it is also true that the law cannot be

unflinching. We should not punish people who disobey those strictures if we

believe that a person of reasonable firmness would have been unable to resist. We

should not expect more of others than we reasonably can expect of ourselves.

debate nfl jan feb 2012

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