North Carolina Law Review
Current advocacy on behalf of battered women accused of criminal offenses focuses on the now familiar battered woman syndrome theory. Although the battered woman syndrome theory has enjoyed broad support when asserted by defendants claiming self-defense, the earnestness of the theory's judicial acceptance is questionable. First, in light of both empirical and analytical flaws in the battered woman syndrome theory, the overwhelming judicial acceptance of the theory is inconsistent with courts' growing tendency to scrutinize scientific evidence. Second, courts have been reluctant to extend the battered woman syndrome theory to the defense of duress, where the theory would excuse battered women who commit crimes with their batterers against innocent parties. That the syndrome theory has been controversial in duress cases, and yet widely accepted in the self-defense context, despite its analytical and scientific flaws, suggests that the battered woman syndrome has been used in the self-defense context to help sympathetic actors.
This paper recommends an alternative approach to understanding the conduct of battered women. The self-defense claims of justified battered women have failed not because battered women are qualitatively different than other actors, but because current self-defense rules are imperfect generally and do not encompass all necessary uses of defensive force. An alternative approach to these cases would treat battered women as rational actors and ask whether their use of defensive force was necessary. Unlike the prevailing approach to the battered woman cases, the recommended rational actor approach preserves the importance of objective standards when justifying defensive force. Moreover, an emphasis upon objective standards when applying criminal defenses reconciles the existing tension between the treatment of battered women in the duress and self-defense contexts. Viewed as rational actors and not psychologically impaired, battered women who defend themselves against their batterers have stronger normative claims that their conduct was necessary than battered women who appease their batterers by victimizing third parties.
Alafair S. Burke,
Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman, 81 N.C. L. Rev. 211
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/165