Barbara Sheehan and The “Battered Woman’s Defense”: Must Domestic Violence Be Imminent to Justify Self-Defense?

Two weeks ago, a jury found Barbara Sheehan not guilty of second-degree murder in the shooting death of her husband two and a half years earlier in their home.  Mrs. Sheehan did not dispute that she had killed Raymond Sheehan, but she claimed that she was justified in doing so by the need to protect herself from his violence.  Had she not shot him first, she contended, her husband would have taken her life, as he had earlier threatened to do.

Offering what some have called a “battered woman’s defense,” Mrs. Sheehan introduced evidence of having long endured domestic violence at her husband’s hands, including his throwing scalding pasta sauce at her and bashing her in the head with a telephone when she tried to call 9-1-1.  Though Sheehan was acquitted of the homicide charge, many similarly situated battered women are not as fortunate, because of the common requirement that a lethal assault be “imminent” to justify a victim in killing the would-be perpetrator.

This column will explore the meaning of “imminence,” its relation to the “duty to retreat,” and the role of these two concepts in limiting a person’s right to use deadly force in self-defense.

The Presumption Against an Entitlement to Violent Self-Help

In the mythical “state of nature” that precedes the establishment of a State, people resort to violence to protect a whole range of interests, including those in property and safety.  If your neighbor steals what you consider your property, you might attack him to deter another theft.  If the same neighbor ambushes and beats you, you might retaliate with greater severity, to frighten or disable him from attacking you again in the future.

This approach to self-protection is costly and often leads to injustice.  You may be mistaken about the facts (i.e., your neighbor may not actually be the perpetrator of the theft or assault).  Or, if you are correct, you may impose a disproportionately harsh penalty relative to the gravity of the offense.  To address these and other disadvantages of a world of violent self-help, people in society delegate to the government the authority to use violence to guard their interests.  The government thus holds what is sometimes called a “monopoly” on the use of force, and if the government is just, it will act only on the basis of evidence, in a consistent fashion, and in a manner that is both proportionate and humane.

Even at its best, though, the government cannot protect people from every contingency.  Acknowledging this caveat, societies have usually allowed exceptions to the government’s monopoly on force in a small number of situations that threaten the property, safety, security, and other interests of its citizenry.  Self-defense is a classic and uncontroversial example of such an exception.

Imagine that John Doe is at home, and an intruder enters the house with her weapon drawn.  Doe has the option of calling the police (if he can get to a telephone in time), but few would fault him for taking matters into his own hands.  Doe may kill the armed intruder, in order to defend himself and any other innocent people sharing his home.

The criminal law justification of self-defense represents a well-worn accommodation to the reality that the police may not arrive in time to protect a resident from an intruder.  Facing an armed burglar, a resident cannot be expected to afford that burglar the luxury of due process.

Outside of their own homes, however, the law historically required people to utilize alternatives to killing an assailant when they could safely avail themselves of those alternatives.  Called the “duty to retreat,” the principle was that if you could—without serious risk—avoid getting hurt or killed by leaving the scene, you had to do so and thereby enable the authorities to deal with lawless behavior.  Only if you could not safely retreat would you be justified in inflicting lethal violence on a potential killer.  The State’s monopoly on force would thus remain intact, even if someone threatened your life, if you could protect yourself without using violence.

In one’s home, by contrast, one did not have a similar “duty to retreat.”  In normative and practical terms, one’s home was one’s retreat, one’s “castle,” and the law would not demand that a person exit his own castle to spare the life of a person who had dared to threaten that sanctuary.

The Battered Woman’s Challenge

Domestic violence differs in important ways from the self-defense scenarios described above.  First, domestic violence often involves a victim who lives in the same home as her attacker.  Therefore, the assailant is, in these instances, not an “intruder” but instead, one of the very people finding sanctuary within the home.  The status of a resident who kills someone who shares the same house has accordingly been understood as importantly different from that of a resident who kills a trespasser.

A second distinct feature of domestic violence is its frequently extended nature:  It ordinarily happens more than once and can escalate in severity over time.  The intruder scenario, by contrast, is more likely to be a one-shot deal, rather than a potentially escalating process.  Put another way, a woman who endures domestic violence is in an ongoing relationship with her assailant, while a more paradigmatic self-defender is not in an ongoing relationship with his.

In part because of these first two distinctions, a shared home and an ongoing relationship, women who kill their batterers to defend their own lives do not always act in a way that follows the “script” for self-defense, a script developed with the trespassing intruder (or an assailant on the street) in mind.

One issue is of immediacy or “imminence”:  the battered woman might kill her batterer at a moment when he is otherwise engaged, rather than when he is coming at her with a weapon.  In this situation, even if the woman has correctly predicted that her batterer would later have attacked her, had she not struck first, the imminence requirement would generally preclude her from preemptively killing a man for something he has not yet begun to do.

Barbara Sheehan testified that her retired-sergeant husband had pointed a gun at her head and threatened to kill her, but then did not fire the gun just then.  It was later, as he was shaving in the bathroom (with his gun next to him on the vanity) that Barbara shot her husband to death with a revolver. Thus, she killed her husband at a point when an attack on her own life was apparently not “imminent.”

Another distinction between a battered woman and the typical defendant who successfully invokes the right to self-defense is as follows:  Most domestic violence victims have remained in a relationship with their batterers for some period of time prior to the lethal encounter.  People are thus inclined to wonder why a woman would choose to stay with a man who inflicted violence on her, and from whom she was anticipating a future lethal attack.

These distinctions run into conflict with the duty to retreat, even if this phrase is not used explicitly when the arguments are made.  When a woman’s assailant is bigger, stronger, and/or more agile or weapon-savvy than she is, she may feel the need to act in advance of a direct threat to her life, rather than waiting for the threat to become imminent.  But her timing then seems to violate her duty to retreat to safety in the time before the expected attack can occur.

By voluntarily remaining in a marriage with an assailant who is dangerous and deadly, moreover, she might also appear to be forgoing the alternative of simply leaving her husband.  In at least two ways, then, the woman who kills her batterer is choosing to kill, rather than to retreat to safety from the threats to her life.

Remaining on the scene and in his home and then killing the batterer, on these facts, will strike many people as premeditated murder, motivated by vengeance, rather than by fear.

Why Don’t Battered Women Retreat From, or Leave, Their Batterers?

As people who have worked with battered women know, the retreat alternative can be illusory.  If a stranger on the street threatens assault, one may, depending on the circumstances, have the chance to simply run away to safety.  In contrast, retreat from an assailant with whom one is in a long-term relationship does not always enhance the battered person’s safety.  In reality, leaving a violent relationship will regularly trigger more violence, and the women who leave their batterers are statistically more—not less—likely to be killed than the women who stay.

When I trained to do battered women’s advocacy as a law student, I was given the initially counter-intuitive instruction not to encourage our clients to leave their batterers.  This was precisely because leaving could prove more dangerous than staying put.  In this sense, the victim of domestic violence is more like a hostage to her partner than a voluntary party to a relationship.  And once we view her as a hostage, we can understand the threat to her life as ongoing, rather than as isolated, an understanding that can change how we characterize the choice to kill her partner.

In response to this contention, many will say that the battery victim is not, in fact, a hostage, and that there are measures she can take—through the legal system—to protect herself from a violent spouse.  She can, for example, seek a restraining order or ask that her husband be arrested and tried for his violence against her.  She can, in addition, escape to a battered women’s shelter, where her batterer will not have as ready access to her.

However convincing these responses may sound, though, they are inadequate.  The legal system is not well designed to protect an individual from an ongoing and escalating threat directed specifically at her.  While restraining orders may issue, a man can violate them and attack or kill before police have an opportunity to intervene.  And while criminal prosecutions are available, a conviction and sentence for battery will not keep most perpetrators behind bars for enough time to assure a targeted victim that she will remain safe from her batterer’s violence.

A woman can go to a shelter, but shelters too cannot guarantee that a violent partner will remain ignorant of his victim’s whereabouts.  Furthermore, it hardly seems fair to require a woman to leave her home and live in a shelter as a condition for remaining safe from domestic violence.

Modifying the Duty to Retreat and the Imminence Requirement

In keeping with the fairness idea, one way to think about the battered woman is to focus not on whether her assailant is an intruder or a trespasser, but instead on the fact that her home is her castle and her sanctuary.  When she is threatened inside her home, she therefore arguably has no duty to retreat, either from the home or from the relationship that threatens her.  By bringing violence into their home, her spouse could be considered as much an intruder than a stranger who breaks down the door.  “Intrusion,” for these purposes, is more than a matter of property law; it is about breaching a person’s oasis of safety and security from fear.

By taking this step away from the duty to retreat, we are able to question the legitimacy of demanding imminence in the law of self-defense.  The reason to require imminence in the first place, after all, is to ensure that violence against the would-be assailant truly is necessary.  Requiring “retreat” serves the same purpose—if you can safely retreat from an assailant, then it is not “necessary” for you to kill him, and you should not do so.

Under some circumstances, however, we do not demand retreat, because retreat may not be a normatively reasonable alternative – such as when the person is under attack in his own home.

It is as or more unreasonable to demand that a person await “imminence” when threats are not isolated but continual, and when awaiting imminence will render self-defense physically impossible and thus no option at all.  That is the situation that many domestic violence victims confront.

The Sheehan Case:  Why the Jury’s “Not Guilty” Verdict Was the Right One

Barbara Sheehan had been married to Raymond Sheehan for many years, and they had two children together, both of whom supported their mother’s defense in their testimony.  In the weeks before her husband’s death, Barbara Sheehan had reportedly told Raymond that she would not be going on vacation with him to Florida.  He then became angry and progressively more violent and menacing toward her.  He ultimately pointed a gun at her and threatened to kill her.

When she finally turned a gun on him, she did so because she wanted to be safe in her own home, and she wanted to safely separate from an abusive man.  Her decision to end her husband’s life appears to have been the only way for her to achieve these two legitimate objectives.  And this, I would argue, made her actions necessary within any reasonable definition of the term.  At least in her case, the jury’s verdict on the murder charge reflected that necessity.

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