 |
|
Not Just a "Conjured Afterthought": Using Duress as a Defense for Battered Women Who "Fail to Protect" |
|
Heather R. Skinazi |
|
| When the state charges a battered woman with failing to protect her child, attorneys seldom raise a duress defense and when they do, courts often express reluctance to accept such a defense in this context. In fact, a battered woman who is charged with killing her abuser and argues self-defense, possesses a better chance of exoneration than a battered woman who is charged with failing to protect her child and argues duress. This Comment contends that the asymmetrical treatment of the "reasonable person" standard in these defenses leads to such strikingly different results. Duress uses a purely objective approach to reasonableness which excludes evidence crucial to demonstrate the reasonableness of a defendant's choices. In comparison, self-defense uses a hybrid objective/subjective approach to reasonableness which ensures that the jury fully understands the totality of the defendant's actions from her own perspective before the jury determines how a reasonable person would have behaved in those same circumstances. The author compares the distinctions separating duress and self-defense, concluding that no logical basis exists for applying different standards of reasonableness to these doctrines and therefore duress should adopt a hybrid approach that resembles self-defense. The author then describes this modification, showing how it could accommodate a defendant who had a reasonable perception of coercion, but one that could only be understood given her experience of prior battering--the "totality of the circumstances." | |
|
|
|
Copyright
© 1997 by California Law Review, Inc. |
|