Opinion | When Do Women Have the Right to Kill in Self-Defense? - The New York Times
Opinion
Who Gets to Kill in Self-Defense?
The first fight Anita Ford remembers having with her husband, Barry Ford, was over dishes. They’d been married only a few years. She turned 18 three weeks before their wedding; five months later, she gave birth to their first child, a boy named Robert. On this night, they’d ordered takeout; she’d put the few dishes they’d used in the dishwasher, but her husband didn’t like her to leave dirty dishes at night. She remembers him screaming at her, then punching her over and over on her right arm and shoulder, and the brutality was so shocking, she froze. If she could just learn to do it his way, he told her, then he wouldn’t be forced to hit her. He promised he wouldn’t do it again. He was so terribly sorry.
But it only escalated. He dragged her by the hair and arm through dog feces she’d failed to clean up. While she was holding a glass, he squeezed her hand until the glass broke. He timed her trips to the grocery store. She remembers calling the police but officers telling the couple to work it out and leaving. Twice, she said, Mr. Ford gave her a black eye. She said that sometimes he’d hit one of the kids, most often their son, Robert, and then she would attack her husband to turn his attention onto her and off their son. One time, when Robert was jumping on his bed, Mr. Ford pushed him, and he fell into the dresser and required stitches. Mr. Ford kept their daughter at home to ensure Ms. Ford wouldn’t tell anyone in the emergency room how Robert’s injury happened. Ms. Ford told me that they both did drugs. (Though the details of the abuse come from Ms. Ford, I corroborated the broader pattern with Ms. Ford’s daughter and one of her sisters and with a former babysitter who said that she remembers Ms. Ford with a black eye and that “those kids were scared of him.” Mr. Ford’s family has always maintained he was not abusive, and his sister, Debra Gomes, who also babysat for the Fords, told me she never saw evidence of abuse.)
At one point, Ms. Ford fled to a friend’s house. Her husband begged her to return, promising he’d attend marriage counseling sessions. But after she returned, he told the therapist that she was the problem.
Eventually, things got so bad that she started saving money from her part-time job as a school bus driver. She did the things we tell abused women to do: She planned her escape, secretly got a new job with a messenger service and rented an apartment. One day she packed up the kids, who were 3 and 5, and left. She said she even got a new babysitter so that her husband couldn’t track them.
But he was smart. He figured out where she’d fled, and he followed her to her new babysitter’s house. He returned later and knocked on the door. His wife had phoned, he told the sitter, and said she was running late and he was to pick up the kids. When Ms. Ford found out what happened and called him, he told her to get home or he’d kill the children. She raced home and stormed in. “It’s either going to be you, or it’s going to be me,” she recalls telling him. “One of us is going to die, because I’m not playing this game anymore.”
“Then it’s going to be you,” she remembers him saying. But he was wrong.
Anita Ford was charged with first-degree murder
in 1984 for her role in planning the death of
her husband, Barry Ford. Last year she filled
out a Danger Assessment — a questionnaire
used to determine someone’s risk of dying at the
hands of an abusive partner — evaluating
her life at the time.
Danger assessment score: 31 out of 39
Ms. Ford’s Danger Assessment showed she was in
extreme danger of being killed by her husband in the
year before his death.
Ms. Ford was convicted and sentenced to life in
prison without parole in 1987.
There are over 12,000 women incarcerated in the United States for homicide, a broad category that ranges from manslaughter to first-degree murder. We do not know and have never known how many of these women killed someone who was abusing them. In the spring of 2020, I partnered with researchers at the Stanford Law School’s Criminal Justice Center for an ambitious study — the largest we know of to date — to find out. That number, we thought, would get to important questions at the heart of the legal principles of self-defense: Who is allowed to kill in the name of self-defense or protecting others and under what circumstances?
Ms. Ford, now 65, is serving a sentence of life without parole at the Central California Women’s Facility in Chowchilla. She attends an emotional intelligence group, cross-stitches and fixes headphones, televisions and radios for her fellow inmates. She owns up entirely to her part in her husband’s death: She told her brother, George Wright, of Mr. Ford’s abuse, and she said the two of them discussed having her husband disappear and die in Mexico. She said there was never any kind of real plan, but they had talked about it. This is how it seems to have played out: A few weeks later, Mr. Wright and two other friends — Lionel Cashman and John Aldridge — lured Mr. Ford, under the guise of having a broken-down car, to an industrial park in Huntington Beach, Calif., not far from Lakewood, where the Fords lived. When he arrived, Mr. Wright shot him.
There are two ways to interpret this story. In the first version — the story prosecutors told in court — Ms. Ford was the mastermind of a plan to murder her husband for financial gain: She was the beneficiary on a $25,000 life insurance policy, along with a policy shared with her son for $5,000 and a mortgage policy worth $50,000. She hired Mr. Aldridge and Mr. Cashman and helped plot the killing over the preceding weeks. (The trial transcripts have been lost, so this was related to me by Ms. Ford, the Fords’ family members and her lawyer, as well as through various appellate documents, police records and other court filings.) Very little about her abuse came up at trial; Mr. Ford’s family and Ms. Ford agree on that. For Mr. Ford’s sister, this was evidence that her brother had not been violent. It could equally be seen as evidence that the legal system simply didn’t see his violence as relevant.
This version of the story convinced a jury: Ms. Ford was convicted in 1987 of first-degree murder for the September 1984 killing of her husband and given a life sentence without the possibility of parole. She has been incarcerated ever since. (Mr. Wright also received a sentence of life without parole; he died in prison in 2021.)
In the second version — the one Ms. Ford’s daughter told me she believes — Ms. Ford’s actions were those of a desperate young wife and mother who feared for her life and felt she had no other escape. “Mastermind” doesn’t capture the desperation of a young woman who believed she had no way out and, worse, that her children had no way out. If she hadn’t been there, who would have protected them from their father?
“I really feel like she saved our lives,” the Fords’ daughter, Theresa Jones, who is 44 now, told me, “not only from my father, but she saved me from seeing that” — the abuse — “and from being conditioned to that and possibly being a violence victim in the future. So I really don’t blame her at all.”
There has been meaningful progress on some fronts since Ms. Ford went to trial: Access to shelter and victims’ services is far more comprehensive than it was when she was a young mother, and there is less shame around domestic violence today, all of which might make someone in her position less inclined to resort to violence.
Still, remarkably little has changed when it comes to how the law handles her kind of case. For the most part, the law sees only that something terrible has happened: A person was killed. Children were left without a father. It has very little interest in learning about or acknowledging mitigating factors like abuse or asking questions about whether, in such cases, justice and accountability ought to look different.
The Central California Women’s Facility in Chowchilla, where Anita Ford is incarcerated, is one of the largest facilities in the world for female prisoners. As of last year, it held about 780 women convicted of murder or manslaughter.
As far back as 1969, a landmark study by the National Commission on the Causes and Prevention of Violence recognized that women were significantly more likely than men to have been defending themselves when committing homicide. But because criminologists for decades focused their research on men, who commit a majority of violent crimes, we still know very little about these women — what their circumstances were and what self-defense looked like for them.
In the United States, self-defense law originates in part from a 17th-century English common law principle called the castle doctrine, which established the right of a man to protect himself and the property in his home in the event of an attack; when this doctrine was created, such property included his wife and children. In other instances — in the public sphere, for example — a man generally had a duty to retreat.
The castle doctrine has expanded over the centuries, including through the “true man” doctrine. An Ohio Supreme Court case from 1876 declared not only that a man in the public sphere did not have to retreat from attack but also that a “true man” would stand and fight — a “true man” was “not obliged to fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or to do him enormous bodily harm.” To require such retreat, a similar court decision determined, was essentially “legalized cowardice,” as one author put it. Numerous states created similar exceptions in the following decades, though a duty to retreat whenever possible was still the norm.
The “true man” doctrine helped pave the way for “stand your ground” laws, which have proliferated across the country since Florida became the first state to enact “stand your ground” in 2005. Such laws state that anywhere a person has a right to be, in public or private, one has the right to fight back against attack — except most of the laws are not written to apply to violence in the home, against another person who has the same right to be there, like a spouse. This makes domestic violence victims largely defenseless in the very place that holds the most danger for them. There are now 30 states with “stand your ground” laws and eight others that allow for “stand your ground” defenses in practice, according to research conducted by Caroline Light, the author of “Stand Your Ground: A History of America’s Love Affair With Lethal Self-Defense,” along with her research partners Michal Goldstein and Agatha Nyarko. Despite the more gender-neutral phrasing of “stand your ground,” these laws still view the world through a male perspective: Dr. Light and two co-authors found that the laws “emphasize the need to protect citizens from threats outside the home while ignoring the fact that intimate partner violence and, more broadly, domestic violence, have been and remain the most common forms of violence against women.” To stand one’s ground, she wrote in her book, remains “a masculine, cisgender act.”
What self-defense principles — from “duty to retreat” to “true man” to “stand your ground” — have in common is that they imagine a version of the same story: a man attacked by another man, typically a stranger. In his home, in a bar, on the sidewalk. The laws were written largely by white men, who had such men in mind — men for whom systems of law enforcement and the judiciary often work as intended. While attempts to address these inequities have varied from state to state and courtroom to courtroom, in general, they’ve met with little success.
What none of these visions of self-defense have yet to adequately imagine is a spouse in a situation in which she is attacked, repeatedly, with increasing severity by another person with an equal right to be in that home. A person whose demeanor, body language and strength are as familiar to her as her own. A person who understands, as Ms. Ford did, that when her husband orders her to get home or he’ll kill the kids, his previous actions reinforce the threat and abject terror is a rational response. So, too, perhaps, is action. In 1989, Cynthia Gillespie, a lawyer who co-founded the Northwest Women’s Law Center in Seattle, published the book “Justifiable Homicide,” which served as a sort of primer on women who kill their abusers and how self-defense principles fail them. “Under the law,” she wrote, “she was not entitled to fight back with a weapon until he was actually beating her severely enough to make it clear that he was going to beat her to death or nearly so. By that time, of course, she would have been rendered helpless to resist at all, but the law does not make room for such considerations.” It was true 35 years ago and essentially holds true still.
The very question the law most commonly and doggedly asks of a woman in Ms. Ford’s situation — why didn’t she leave? — assumes “that the family home is not her home but his and he has the right to drive her out of it,” as Ms. Gillespie put it. Ms. Ford had called for help. She had tried to retreat. And finally, she stood her ground. The law has little imagination for her kind of story, not in the 17th century and not today.
Three tenets of self-defense law prove troublesome for abused women. These are imminence, reasonableness and proportionality. The threat of great bodily harm or death to the victim must be imminent; her actions must be reasonable, given the situation; and her response to the violence or the threat of violence must be proportional.
Leigh Goodmark, the author of the book “Imperfect Victims,” said that self-defense law imagines two parties of equal strength, size, weight and physical capability. (Ms. Ford was 5-foot-8 and 130 pounds; she told me her husband was over 6 feet tall and had a hundred pounds on her.) When this is not the case, questions of proportionality can become muddled. When is she allowed to fight back with potentially lethal force? If not after her first two black eyes, then after broken ribs? After a traumatic brain injury? Can she reach for a weapon like a gun if he does not have one or if his weapon is a common household item — tools, a bungee cord, duct tape, a pillow? (I have seen them all used in my 15 years of reporting on domestic abuse.)
When women use weapons in altercations that turn deadly for male partners, the result is often additional weapons charges. Nancy Grigsby, who directs the Incarcerated Survivors Project at the Ohio Domestic Violence Network, said a big part of the problem is interpretation. “The wrong meaning gets attached to some of the facts,” she told me, illustrating the point with an example: A man beats a woman for many years. The violence escalates. Eventually, he threatens to kill the children. She’s tried the police, maybe a shelter, maybe family members, and nobody stops him. Finally, she gets a gun and confronts him. There’s an altercation, and he gets shot. “I think she takes the gun because it’s evidence of how terrified she is of him,” Ms. Grigsby said. But the law “thinks she’s taking the gun because she’s made a premeditated decision to take his life.”
The question of what seems reasonable to a court of law can be messy, too. She can read the signs of danger: Maybe one night he’s quiet and subdued when he’s usually loud, or he’s loud when he’s usually quiet. He tells her to drive the car when usually he demands to drive. He orders her to leave the kids or get the kids or any number of situations in which there is a departure from a norm she has come to know through experience and intuition. To her, these are screaming alarms, but how to convey this in ways that sound reasonable to strangers who exist outside this couple’s specific emotional, psychological, physiological and physical reality?
But where self-defense law really fails to capture a woman’s experience is around the question of imminence. “Imminence” means a brawl in a bar, a thief in a bedroom. A court generally imagines only one type of situation that counts as self-defense in a domestic violence situation: an abuser coming for a victim and an instant reaction. He has her by the throat, for example, and she grabs a knife. If, however, an abuser steps away from an hours- or days- or monthslong fight — to get a beer, to take a call, to go to work — a court typically sees an opportunity for retreat. What a domestic violence victim sees, however, is a long history of an offender who will follow through on threats to kill because past violence underscores every one of those threats. And often it is in this intermission that she’ll take her shot.
Shajia Ayobi was charged with first-degree
murder in 2012 for her role in the death of her
husband, Ghulam Ayobi.
Danger assessment score: 29 out of 39
Ms. Ayobi’s Danger Assessment showed she was
in extreme danger of being killed by her husband
in the year before his death.
Ms. Ayobi was convicted in 2013 and sentenced
to 26 years to life in prison.
This was the case with Shajia Ayobi, who was married for 18 years to Ghulam Ayobi. He was a prisoner of war during the Soviet invasion of Afghanistan and emerged from that conflict with post-traumatic stress disorder. The couple made their way to Sacramento, where over the years, she said, he grew increasingly erratic and demanded to know her whereabouts at every moment. He’d call, and if she didn’t pick up the phone right away, he’d attack her later. He stalked her at her job. Once, when he came home and found their 14-year-old son, Masiula, playing games on a computer, he retrieved an ax from the garage and attacked the computer, smashing it to bits. While his sisters escaped upstairs and called family friends for help, Masiula said, his dad turned toward him with the ax. Then the friends arrived, and Mr. Ayobi stopped. At one point, Ms. Ayobi escaped to Canada with her children, but after a month Mr. Ayobi brought them back to California, warning her that he would kill the children if she ever tried to flee again.
Ms. Ayobi thought about getting a gun for her protection, but she despaired over being able to use it in a moment of terror, or worse, her husband finding it and using it against the rest of the family. She told me the night her husband died, she was terrified of him not because he’d attacked her but because he’d been so eerily quiet. The couple’s four children were all teens or preteens by the time Mr. Ayobi died, and three of them spoke to me, independently, about how terrified they were of their father and how utterly sure they were that by killing their father, their mother had saved their lives.
But Ms. Ayobi, like Ms. Ford, did not kill her husband herself. Ms. Ayobi, in desperation, offered a classmate $10,000 to kill him just days before his death, in 2011. In both the Ford and Ayobi cases, the women were portrayed as the driving forces behind a sinister plan. Their actions were interpreted not as those of spouses terrified and unable to kill the abuser themselves but as partners so deceptive and manipulative that they masterminded the crime and talked others into joining the scheme. And certainly, a woman who has time to recruit someone to kill her husband for her is not a woman most courts will see as in imminent danger.
In July 2023, I drove south on Route 101 with Debbie Mukamal, the executive director at the Stanford Criminal Justice Center, while the heat shimmered from the pavement. Soft desert greens — mesquite, juniper, oleander, sage — lined the highway as we turned east and made our way to the Central California Women’s Facility, one of the largest facilities in the world for female prisoners. California state prisons contained approximately 1,115 women convicted of murder or manslaughter at the time of our survey — about 10 percent of the national total. As of last year, the Chowchilla facility held around 780 of these women. We arrived bearing 30 tablets provided by Stanford, pens, surveys in Spanish and English, consent forms, snacks, water and coded manila envelopes to keep the responses anonymous. The prison had arranged for a chaplain to be on hand for emotional support.
In order to participate in the survey collection, I had to shed my journalist identity and become a proctor, which meant agreeing not to conduct interviews while in the prison. The incarcerated individuals didn’t know I was a journalist, though the prison officials did; those interested in telling their stories to a journalist were instructed to get in contact with me later by mailing a letter. Proctoring along with me were seven other women, including three formerly incarcerated women who had served, collectively, 81 years in California prisons for crimes stemming from domestic abuse. Many of our respondents greeted the three of them with tears and hugs.
Our survey consisted of 62 multiple-choice questions, with two open-ended portions. Many victims of domestic violence don’t identify themselves as victims, so our survey contained an instrument called the Composite Abuse Scale, which, in addition to physical abuse, captures sexual, emotional and psychological abuse and harassment over time. “If you’ve grown up with abuse — verbal, physical, sexual — and had abuse as an adult, then you may not recognize that you’re a victim of abuse,” our director of research, Andrea Cimino, who designed the survey, told me.
Perhaps the most critical element of the survey was the inclusion of what’s called the Danger Assessment. Used globally but unevenly by the police, health care workers and advocates in the domestic violence field, the Danger Assessment can help predict, with startling accuracy, which domestic abuse victims are at risk of being killed by their partners. Using a weighted scoring system, the Danger Assessment asks questions about acts of abuse, nonfatal strangulation, beatings while pregnant, access to guns, threats of suicide or murder and other indicators of lethality.
The Danger Assessment is not generally used as stand-alone evidence in court in the United States. Including it in our survey, however, allowed us to learn about the level of danger these women were in during the year leading up to their offense. To put it another way: How potentially imminent was her death, and how reasonable were her actions in light of this?
The process of administering the surveys was profoundly emotional. Some women broke down crying and needed to keep stopping and restarting. One older woman who had been recently sentenced cried so hard, we told her not to complete the survey, and several inmates and proctors sat with her for more than an hour.
At the time of the survey, California state prisons contained approximately 1,115 women convicted of murder or manslaughter — about 10 percent of the national total.
The women were all carrying ducats — slips that indicated they had permission to take our survey. That often meant leaving their jobs and losing the money they would have made. Although they earn just cents per hour — Ms. Ford, for example, told me she earned 8 cents an hour — the loss of that money is not nothing when it costs 5 cents to send an email. They walked across the baking prison yard and waited in the sun to make their way to us. All of it cost them something in time, in money, in discomfort.
Though I was there as a proctor and not a journalist, women told me their stories anyway, many of which did not involve killing their abusers but were shaped by domestic violence nonetheless. Versions of these stories emerged in the survey responses: There was the woman who let her daughter die in a hot car because her abusive partner claimed God was casting the devil out of the little girl, the woman forced by her partner to tie up a burglary victim (she learned the person had died when her partner told her and threatened her to keep quiet), the woman who killed one of her children in a car crash as she was fleeing her abuser. Several women recounted how abusive partners threatened to kill or hurt their family members if they didn’t comply with demands. One thing we quickly came to appreciate is that our original research question — How many women are in prison for killing their abusers? — was not broad enough to account for the ways that domestic abuse can lead women to prison.
The next prison we visited was the California Institution for Women, a smaller facility near the Chino Hills, 40 miles east of Los Angeles, which held around 340 women convicted of murder or manslaughter; the air reeked of the fertilizer used on area farmland, a noxious aroma of blood and fish. We spent two full days in a classroom there. By the end of our time in California, we’d surveyed close to 700 people. Weeks later, their letters and emails began to pour in.
Miranda Gallegos stabbed her ex-boyfriend a single time and killed him. She told me that she had endured years of abuse by then — from him and from a constellation of men, starting when she was just 11 years old. Janeen Snyder ran away from home at 14 and was tortured and abused and participated in the murder of a teenage girl with her much older abuser. She wrote to me from death row. There was Debby Saravia and Tanika Beltcher. There was Jamie Monroe and Malinda Jones. Many of the women told me about how in prison they’d had time to learn about themselves, how they hold so much regret not only for the crimes for which they’d been convicted but also for the children and sometimes grandchildren they’d left behind and for the little girls they once were, before all the violence derailed their lives. There were others who wrote once and then stopped. There were some whose lawyers told them to stop writing. But even when they disappeared, there were always many more who wanted to share their stories.
Stanford researchers surveyed 649 women
incarcerated in California prisons for murder
or manslaughter; 134 of them were convicted
in the deaths of their partners.
Of the women convicted in the deaths of their
partners, 110 experienced domestic abuse in
the year leading up to their offenses.
85 reported their partner had controlled most or all of their daily activities
83 said their partner had forced them to have sex
69 said their partner had tried to choke or strangle them
91 said they believed their partner was capable of killing them
In all, 80 of 110 were in extreme or severe danger in the year before their crimes.
The Stanford study runs to 230 pages and provides important new evidence about the role of domestic violence in homicide convictions. (Having finished in California, we plan to survey other states.) Research has long confirmed high rates of abuse among those serving time in both men’s and women’s prisons. But Ms. Mukamal wanted a clearer picture of that connection when it came to homicide specifically. That is, would the crimes have happened if the abuse had not preceded them? We have many anecdotes that demonstrate how one leads to the other, but we have very little data. (I’m not the first journalist who has found this frustrating and sought to remedy it.)
Out of the 649 women included in the study, nearly three-quarters of them experienced intimate partner violence in the year leading up to their homicide-related convictions. The abuse was often directly related to the deaths, a phenomenon Ms. Mukamal calls the “abuse to prison” pipeline: Several were in the midst of suicide attempts when a loved one trying to stop them was accidentally killed. In other cases, they were fleeing an abuser in their car, had an accident and a child or bystander died; a handful were in for what they described as mercy killings of their children. The deaths of strangers, in particular — from D.U.I.s, from being in the wrong place at the wrong time — highlight the ways that domestic abuse, even now often viewed as a private matter, spills out into a community, posing a threat not just to the direct victims of the abuse but also to many others.
Another striking finding was the high number of nonfatal strangulation or choking events among this population. In the study, 60 percent of the women who experienced intimate partner violence in the year leading up to their crimes said they’d been strangled — most often multiple times.
Only 15 percent of nonfatal strangulation victims in one study had injuries visible enough to photograph for police reports; these injuries are often even more difficult to see on Black or brown skin. Such abuse has a cumulative effect. Multiple strangulations can lead to traumatic brain injuries. (And in this population such injuries are often undiagnosed and untreated.) These injuries can shape the way domestic violence victims interact with the legal system. They might have poor recall of events or change their stories, which interferes with their ability to appear credible to police officers or juries. We’re increasingly recognizing the potentially devastating impact of brain injuries on those who play impact sports or serve in the military, but we have not made progress on the same scale when it comes to abuse victims: Advocates have sounded the alarm about them for years, but such calls generally have yet to work their way into practice in either the legal profession or law enforcement.
But perhaps most striking were the results of the Danger Assessments. A full two-thirds of respondents who experienced intimate partner violence in the year leading up to their incarceration were in the extreme category — the most dangerous category. It’s one thing to hear versions of this story over and over: Court records and police reports going back decades are full of language like “kill or be killed,” “it was him or me” and “one of us was going to die.” But it’s another thing entirely to see that language translated into numbers and percentages, to see how often survivors become defendants in a system that has viewed their lives as subordinate from the start.
The Central California Women’s Facility stretches across 640 acres of flat farmland, about 100 miles southeast of San Jose.
What, then, should be done?
Despite an abundance of attempts, reforms to U.S. laws to take abuse into account have been few and far between. The most significant reform came from the efforts of Lenore Walker, a psychologist who published the book “The Battered Woman” in 1979. She coined the phrase “battered woman syndrome,” which she used to describe a situation in which an abused woman is unable to escape her abuser because of what Dr. Walker termed “learned helplessness,” a phrase she borrowed from psychologists who said victims of extreme abuse eventually became so devoid of agency, they were unable to escape their violent situations even when change was available.
From the outset, the concepts of battered woman syndrome and learned helplessness were fraught. Experts wrote about their subtle encoding of racial and gender stereotypes — that they’re rarely seen as a good fit for women of color or trans women or, indeed, any woman who fights back at all.
Perhaps most insidiously, battered woman syndrome allowed court officials to suggest that a woman with it was acting unreasonably, owing to her pathology, that if she did act, her act — killing the man who was abusing her — was disproportionate to the threat he caused, when the opposite is often true.
Still, battered woman syndrome did lead to one key change. Throughout the 1990s, states across the country, including California, wrote statutes that allowed expert witnesses to testify to what a victim suffering from learned helplessness looked like. The concept of battered woman syndrome offered a pathway for abused defendants, through these witnesses, to explain to a court how violence can affect every aspect of a person’s life.
But these measures have had a limited impact. Making effective use of such experts still requires defense lawyers sufficiently well versed in the effects of abuse to know that they ought to hire them, often in situations in which a client might not clearly articulate the fear, the violence, the danger she faced. Or a defendant might not have the resources to pay for such experts. Or a defense lawyer might simply be reluctant to bring up this history: Using abuse as a mitigating factor can backfire when prosecutors point to it as a motive. Ms. Ayobi, for example, was convicted in 2013, despite having an expert witness testify about the effects of complex trauma in her case, from her experiences of war and her history of abuse; prosecutors pointed to her husband’s control over her as a motive for her to kill him.
Some defendants can raise what’s called an imperfect self-defense; that is, a woman might argue that her fear of imminent harm was real, even if the jury might view the fear as unreasonable. But reasonable versus unreasonable fears leave much room for interpretation, and such defenses, if successful, generally result in convictions on lesser charges, not acquittals.
In Maryland an appeals court allowed a woman named Karla Porter to make this argument after she was found guilty and sentenced to life without the possibility of parole for hiring a third party to kill her abusive husband, who, during their 24-year marriage, beat her with a rake, stabbed her with a drill and smeared dog feces on her. She testified that in the weeks leading up to the murder she was in constant fear. Ms. Porter appealed her conviction and was granted a new trial. But like many defendants, she chose a plea deal rather than the trauma of a second trial; in return, she received what is, in effect, a 50 year sentence. Her success, if it can be called that, is that she’ll now be eligible for parole at some point.
There have been some other attempts at progress, often in the form of sentencing relief. For example, New York, California and, more recently, Oklahoma have mechanisms through which women can receive lesser sentences or resentencing if they can show evidence that domestic violence contributed to their crimes. Often, however, this relief comes after women have served years if not decades behind bars and, as with imperfect self-defense, still leaves them with a felony conviction. This happened with Ms. Ayobi recently, when a judge reduced her conviction from first- to second-degree murder; it meant she would be eligible for parole after 15 years rather than serving 26 years to life. It’s a win, of sorts, but only in the context of incalculable loss.
Among legal researchers and social scientists, there is widespread agreement that the way the law operates in these cases remains discriminatory. But there isn’t yet any sort of consensus on what change should look like. In a paper published last year, Michal Buchhandler-Raphael, a law professor at Widener University, suggested a new charge she called “survival homicide,” which would sit somewhere between full acquittal and manslaughter. She wrote that it would have a “mitigated criminal responsibility” and the offense would be “graded lower than manslaughter.”
But Mary Anne Franks, a law professor at George Washington University who has written extensively on gender-based violence, said such women shouldn’t be charged in the first place. “As criminal law scholars, we believe that self-defense is justified,” she told me. In her law classes, she uses a kidnapping analogy. If someone kidnaps and ties up a person and then falls asleep and the kidnapped person manages to get free and kill the kidnapper, would it seem appropriate to charge that person with murder?
One example of a country that has proceeded with legal reforms that attempt to balance accountability with a more complete understanding of domestic abuse is Canada, which changed its self-defense laws in 2013.
The reforms followed decades of lobbying by feminist groups and a landmark ruling by the country’s Supreme Court, in a 1990 decision on a case involving Angelique Lyn Lavallee, who had endured abuse from her partner, Kevin Rust, for years, before shooting him in the back of the head. Justice Bertha Wilson, writing for the majority, made it clear the legal system had a problem: “If it strains credulity to imagine what the ‘ordinary man’ would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation,” she wrote. “Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical ‘reasonable man.’” To misunderstand this, Justice Wilson said, was to condemn such victims to “murder by installment,” as an earlier decision put it.
The reforms, passed more than 20 years later by Parliament, allow for a much more expansive definition of self-defense, said Elizabeth Sheehy, a professor emeritus at the University of Ottawa Faculty of Law. The new law does not preclude self-defense arguments for planned killings, for instance. In order to claim self-defense, the accused still must provide evidence that the actions were reasonable, given the violence or threat of violence faced, but the idea of reasonableness is assessed in light of any number of considerations, such as the parties’ relative sizes and strengths, a history of abuse, the nature of the relationship and other contextual factors. These factors might even include personal history: Today in Canada, a woman who has had a traumatic past should be able to introduce that history as context for her state of mind at the time of her crime and potentially secure a full acquittal. In the United States, the impact of many of these considerations would be far more limited and probably result only in a conviction being downgraded.
A society’s penal code functions in part as an expression of its values — as one avenue through which we say: This act deserves punishment, this one mercy. No one wants to simply give a free pass to women who kill. But it must also be acknowledged that there are people whose lives remain beholden to forces of violence or threats of violence that they cannot be expected to simply walk away from on their own. We make this allowance when we acquit men like George Zimmerman and Kyle Rittenhouse, neither of whom for a single second was dragged by his hair through a hallway or had his children threatened with an ax. We do so because throughout the history of our legal system, we have been inclined — in many cases, overly inclined — to make exceptions for men’s violence while giving very little thought to what might drive women to the same act.
Self-defense laws require an act of imagination. They ask judges and juries to place themselves in someone else’s shoes and consider: What can we ask of a person in this situation? They have failed abused women for so long not only because the legal system has had trouble seeing the world through female eyes but also because it particularly struggles to see the world through the eyes of someone whose perceptions have been shaped by years, sometimes decades, of brutality, a circumstance for which all of us bear some responsibility. Perhaps this was understandable once; to lack this capacity for imagination still, despite all we know today about intimate partner violence and despite the willingness of so many women to share their stories, feels like a deliberate choice.
For women like Ms. Ford, Ms. Ayobi and many others, killing their way out of a relationship was an act of salvation — for themselves, for their children. Among the most haunting statements from many women I’ve spoken with was that they were sorry to be going to prison but that at least in prison the violence against them would stop. It took hearing this multiple times for me to fully take it in and to appreciate what it said about the scale at which society failed these women long before they went to prison and the depth of the injustice being perpetrated against them now."
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