Should Homicide Laws Have a Domestic Violence Loophole?

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Photo by Pierre Guinoiseau via Flickr

I’ve previously written about the limits of self-defense in the context of a New York case in which a husband who killed his wife’s attacker as the assailant was trying to flee was charged with manslaughter.

Arguments of self-defense can also arise in cases in which one spouse kills the other. That defense may be compelling if, say, the wife grabs a knife as her husband is beating her in their kitchen and stabs him to death.

But what if that same wife fatally stabs her husband while he’s sleeping or is taking a shower? And what if she claims that her actions were in response to years of physical and/or psychological abuse?

Sadly, such claims are not unusual. In fact, they became so common that, in the 1970s, they were given a name: Battered Woman or Wife Syndrome, which is now considered a form or subset of post-traumatic stress disorder.

The gist of the Battered Woman Syndrome is that because a woman was trapped in a cycle of abuse and violence at the hands of her “loved” one, she came to believe that killing her husband or boyfriend was the only way she could save herself (and sometimes her children).

It sure sounds like self-defense, doesn’t it?

But an individual arguing self-defense typically must reasonably believe the use of physical force was necessary to respond to an attack or imminent threat of an attack. And the use of deadly force in self-defense is even more limited, generally permitted only in response to the use or imminent threat of deadly physical force.

So if the deceased, abusive spouse is asleep or otherwise engaged in non-threatening behavior, there’s no imminent threat of an attack and thus the use of force—much less deadly force—wouldn’t appear to be justified, despite the fact the wife may arguably have a reasonable expectation she would suffer violence at his hands again in the near future.

However, these obstacles haven’t prevented abused women from arguing self-defense based on some form of the Battered Woman Syndrome in such circumstances.

For example, in a recent high-profile case in France reported on in the New York Times, a 68-year-old wife shot and killed her husband of 47 years, claiming that he’d physically and sexually abused her for decades and thus she acted in self-defense.

Jacqueline Sauvage was taking a nap when her husband Norbert Marot woke her by striking her in the face, demanding that she make him dinner. Sauvage responded by getting his hunting rifle from a closet, going to the terrace where he was sitting drinking whiskey, and shot him three times in the back.

However, the jury rejected her Battered Woman Syndrome defense. Sauvage was convicted of murder in late 2015 and sentenced to 10 years’ prison.

The verdict outraged the public and more than 400,000 people signed a petition demanding her release. In response, President François Hollande pardoned Sauvage in January 2016 after she’d served three years of her sentence.

Sauvage then applied for parole. But in an unexpected twist, on Aug. 12, 2016, a magistrate refused to release her, saying freeing her may encourage people to see her as a victim rather than a convict. That decision has been appealed.

This kind of tragic story—and defense—have even permeated pop culture, with a long-running British radio show recently introducing a story line in which one character is on trial for trying to kill her husband after enduring years of abuse.

In the Sauvage case, the self-defense argument ultimately wasn’t successful at trial, but in other cases, juries have accepted it.

For example, in 2011, a New York jury acquitted Barbara Sheehan for murdering her former police sergeant husband. Jurors believed her claims that he’d abused her for years and threatened to kill her. She shot him 11 times—using two different weapons—while he shaved.

Domestic or intimate partner violence is clearly a serious issue. According to the National Domestic Violence Hotline, in the U.S., 24 people per minute are victims of rape, physical violence or stalking by an intimate partner—more than 12 million women and men over the course of a year.

It’s difficult not to be sympathetic to women like Sauvage. Her husband was clearly no prize.

Marot physically and sexually abused not only Sauvage but also all three of his daughters when they were teenagers. He also hit his son Pascal, who tragically committed suicide the day before his father was killed.

Court documents show that Sauvage and her children felt constantly threatened by Marot, who told his wife that he would kill her and her children if she tried to leave.

But in choosing to shoot her husband, Sauvage essentially acted as a vigilante—and we shouldn’t encourage vigilantism.

Killing an abusive partner is not the only option. There are now many resources from hotlines to shelters available at the local, state and national levels to help the victims of domestic violence.

For instance, Shelters for Families provides various services, including shelter, for the survivors of domestic and other forms of gender violence. Local district attorney’s offices and police departments may also have specialized units designed to assist the victims of domestic violence.

So we should encourage such victims to seek help from these outside resources rather than taking things into their own hands and resorting to exactly the kind of violent conduct that they were subjected to by their abusers.

But there are still systemic obstacles that may deter or prevent battered spouses from reporting the violence or seeking help.

Sauvage once tried to kill herself, but the doctor who treated her never bothered to ask why. When her daughter complained to the police that her father had raped her, the local police officer, instead of taking her seriously, called Marot, prompting her to retract her claim.

And don’t forget that Barbara Sheehan’s abusive spouse was himself a member of law enforcement.

Did these women ultimately kill because the system failed them?

Taking a life should be a big deal. Society shouldn’t encourage or condone it. That’s why murder is one of the most—if not the most—serious crimes an individual can commit.

Even in death penalty cases in which society has decided that someone has done something so terrible that he or she deserves to die, there are mechanisms in place designed to protect the accused’s rights before he or she is actually executed. (Whether those protections actually work is a discussion for another day.)

But when a battered wife executes her abusive spouse, she’s working outside of these protections. She’s acting as judge, jury, appeals court and executioner.

As a result, I don’t believe there should be a so-called “domestic violence loophole” in the murder or self-defense laws. Such a loophole would essentially give abused women a license to kill.

However, cases of abused women (or men) killing their violent partners shouldn’t be handled in a vacuum and without consideration of the circumstances that ultimately led to the murder.

Perhaps the best compromise is to allow defendants who’ve proven they were, in fact, battered and acted as a result of such abuse to be held liable for a lesser charge, say, manslaughter instead of murder. They would still be held responsible for taking a life but their circumstances would be acknowledged and recognized as contributing to their behavior.

In addition, proof that a defendant suffers from Battered Woman Syndrome should be a relevant mitigating factor as to the appropriate sentence. After all, are lengthy prison terms really the appropriate punishment for these women?

Incarceration is intended, at least in part, to protect the public from dangerous criminals and deter these individuals from committing similar crimes in the future.

Battered women who killed their abusers, however, engaged in violence as a last resort and only in response to what seemed to be a hopeless situation. Also, they don’t tend to be violent in general—their actions were aimed at a very specific target.

Robin Barton

Robin Barton

So these women aren’t likely to kill again and thus pose little to no threat to society as a whole.

In the end, the French magistrate is wrong. Women like Sauvage and Sheehan are more victim than criminal.

Editors Note: On October 26, the Center on Media, Crime and Justice at John Jay College is holding a special event on domestic violence for journalists in the Metro-New York area. For more details, check here.


Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.

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