In my last column, I took up the question of whether abolishing the insanity defense violates the Constitution. Regardless of how one answers that question, the defense remains controversial. Many suspect that insanity and other excuses based on mental or emotional disorders allow bad people to get away with misconduct. Such suspicions fueled the 1990s book by Alan Dershowitz, The Abuse Excuse.
In this column, I want to talk about a different defense, one that carries almost no controversy. That is self-defense/defense of others (the right to use force to defend oneself or another person). Unlike insanity, which provides an excuse, self-defense is a justification. What’s the difference?
An excuse holds that a person committed a wrongful act but should nonetheless avoid responsibility—insanity, entrapment, and duress are excuses. A justification means that even though a person carried out an ordinarily prohibited act, he was right to do it and therefore deserves no legal condemnation in the form of conviction or punishment. Violence in self-defense and defense of others are examples of justified acts.
Another way of thinking about the two categories is to observe that the first emphasizes the circumstances or personal impairments that explain a mistake, while the second says that the defendant did not make a mistake. If we had it to do over again, we would try to avoid the excused conduct while affirmatively pursuing the justified.
Self-Defense: A Classic Scene
Almost no one would deny a person the right to use violence to protect himself against a would-be killer. The same holds true for lesser threats, but I focus on death because the defendant’s actions are most extreme. If someone enters your home without permission and points a gun at you, you may shoot or otherwise kill the intruder in self-defense. A police officer may do the same when confronting an armed assailant threatening the officer’s life—the latter may, consistent with the Constitution, use deadly force.
With all agreeing that self-defense is permissible, if we asked a random sample of lay people “what is your primary emotion when you need to use violence in self-defense or defense of others?,” I suspect that most would identify the correct answer as “fear.”
We all know about the fear response. If we believe that something or someone threatens our safety or our lives, we feel afraid. Sometimes we feel afraid even when nothing especially harmful is in the offing. We might call this emotion anxiety, which is a close relative of fear that seems less likely to yield beneficial consequences. If, by contrast, acrid smoke is billowing up the stairwell as we descend, choking us and making it difficult to escape, we might feel terror. The same is likely if a wild cat, such as a tiger, has cornered us and is baring his teeth and growling.
By contrast to these variations on fear, anger might seem a surprising emotion for these types of scary situations. We might predictably experience anger when someone has taken away something that either belonged to us or that we wanted for ourselves. If you were feeling very hungry and made yourself a delicious sandwich, you might become angry if a co-worker clumsily knocked your sandwich onto the floor and stepped on it. Or if you described a creative idea at a meeting, and someone else repeated the idea in her own words and received all of the credit for it. Maybe someone cut you off in traffic and made you miss the green light. Or perhaps you had a crush on a particular guy or girl and then watched a rival swoop in and steal his or her heart. Jealousy could be part of the feeling when not-yet-acquired commodities or relationships are involved, but so could anger. And notably, none of these situations would justify violence in “self-defense” or “defense of others.” Revenge is an all-too-familiar phenomenon, but it is not legally permissible.
In a scene from the film, Anatomy of a Murder, which many professional responsibility instructors show their students, a criminal defense attorney talks to his client, who is on trial for murder. The lawyer and the defendant speak about potential defenses that the latter could use, in light of the fact that he killed a man after the man had raped the defendant’s wife. The client proposes self-defense (which includes defense of others).
Even though everyone could understand a husband’s desire to kill his wife’s rapist, however, revenge is no defense to murder, and the attorney explains as much to his client. The scene is iconic because the lawyer repeatedly but subtly steers the client towards an insanity defense, notwithstanding the fact that the client is plainly sane and, equally plainly, killed his victim as revenge for the rape.
Beyond ethical questions about the attorney/client conversation, the scene is instructive in another way too. It teaches us that committing violence out of righteous anger—the sort of anger that can motivate a jury to acquit—is legally impermissible and unjustified, however sympathetic and understandable. In some sense, then, self-defense and punishment after the fact are the antithesis of each other.
So long as you are scared that something will happen—and you act to prevent it from happening—you might have legal recourse to violence in self-defense. But once the thing you feared has already happened, and you are no longer scared but angry, jealous, or enraged instead, you no longer have the authority to react in violence. If one were looking for a simple rule, then, one might come up with “you may kill (or attack) when you’re scared but not when you’re angry.”
The Consequence of This Simple Rule
We know that the emotion you feel is not really the criterion for self-defense. We want to know whether the circumstances are such that you reasonably believed violence was necessary to protect yourself from harm or whether you instead were acting after any danger had passed and you were reacting to the damage inflicted. Similar to what the Supreme Court has said in the context of police stops motivated by race but justified by probable cause, our focus is on whether such an act was justified under the circumstances, not on what the motives or feelings of the actors were.
Yet the simple rule stays with us, notwithstanding these caveats, just as so many regard as unreasonable a police stop motivated by race, even if the driver really was speeding. To understand why the simple rule can be harmful, consider the case of the battered woman who, after years of physical brutality, takes a sharp carving knife out of the kitchen cabinet in the middle of the night, approaches her sleeping batterer, and stabs him in the throat repeatedly until he chokes to death on his own blood. Has she acted in self-defense?
When I was in law school, I did some battered women’s advocacy. In a film we watched in preparation for the work, we learned that the most severely punished offenders of all are women who kill their batterers after years of abuse. We talked about how the women might have found the police uninterested in protecting them from a batterer’s violence, even as advocates knew (and might have told the women) that leaving a batterer tends to precipitate the most extreme violence and increases the odds of her losing her life.
In other words, battered women at least arguably had no choice but to kill batterers who refused to stop beating their partners. One might analogize this to a kidnapping situation in which the kidnapper is violent and too strong to defeat by day and would become lethally violent if the victim tried to escape. It could be necessary in such a case to kill the kidnapper as he slept.
Allies of women who killed their batterers have argued about the situation described above, regarding it either as one in which lethal self-defense is justified or as one in which the excuse of “battered women’s syndrome”—in which women feel helpless notwithstanding their actual capacity to leave—is available as a variant on diminished capacity. But at the time and thereafter, I found very puzzling the notion that women in these situations were receiving the harshest sentences for homicide. Even if juries and judges did not quite view the killing as self-defense, why would people be so punitive toward battery victims? It didn’t make any sense to me.
People have their theories, of course. Some said that this was a product of misogyny. People think men have the right to discipline their wives with violence, and women stopping them from doing so inspires retributive sentiments. Others proposed that a woman who acts out in aggression—and not in defense of her children—has violated stereotypical sex roles and therefore faces an especially draconian consequence. Still others said that there is something disturbing about the act of killing a man while he sleeps. It isn’t a fair fight, by some lights. And finally, some might simply reject the notion that the battered woman cannot safely escape from her partner—and without the defense, they’re left with an extremely violent murder that was also unnecessary, because the victim/perpetrator could have left instead.
Any or even all of these accounts may have some truth to them; it is difficult to know. I have another theory, though, connected with the simple rule identified above: you may kill when you’re scared but not when you’re angry. I believe that in at least some of these cases, the jury and judge rejected self-defense because they saw anger in the battered woman’s actions. A woman who repeatedly stabs her sleeping husband in the throat or who beats her husband to death with a hammer is plainly exhibiting anger; indeed, she is most likely experiencing rage.
So what? Why would a jury care whether she is experiencing fear or anger or both? And what are the implications of that concern? The reason a jury cares is that once again, the characteristic emotion that people associate with self-defense is fear. You reasonably believe that I am going to kill you, you feel scared of that prospect, and you kill me instead to protect yourself against me. Anger is the emotion of revenge; we feel empowered by our sense of grievance when we are angry. We aren’t afraid. And we aren’t in such cases authorized by the law to attack or kill anyone.
The reality is that people can experience more than one emotion at a time. You can feel both frightened at the possibility of being killed and enraged that someone would dare threaten your life. And a woman who kills her batterer may very well experience both fear that he will hurt her again or finally kill her and rage at his repeated assaults upon her body over time.
The ways in which battered women who kill their batterers typically carry out the killing testifies to extreme anger, even as it at least sometimes manifests fear of continuing or escalating violence. The two emotions are consistent. In fact, people hate feeling afraid so much that the fact that they are feeling that way can itself make them angry.
The idealized terrified victim is in reality only one kind of victim. Others feel rage and hatred instead of fear. And still others feel a combination of emotions. Consider the fact that when someone puts us in danger, we have a “fight/flight/or freeze” response. To fight almost requires the kind of energy associated with anger. And if one is only fleeing, then there may never be any need to invoke the doctrine of self-defense.
Protection and Anger
To illustrate the mix of emotions people experience in the face of a lethal threat, consider the case of a self-destructive member of the family. Let us call this family member John and posit that he is nineteen years old. Assume that he lives with his mom, Jane, and that he has been using increasingly dangerous amounts of heroin and skipping classes at the local community college for the past eight months and that he misses meals regularly and has begun to look skeletal. One evening, Jane enters the living room and notices that John, sitting on the couch, has a needle in his arm and appears to be injecting a lethal amount of heroin. Jane cannot believe what she is seeing.
She races over to her son and smacks the syringe off his arm. She immediately begins screaming.
“You do this in MY HOUSE???!!! You bring that poison under MY ROOF and sit in MY LIVING ROOM on MY COUCH, all paid for with MY MONEY??!! Get the hell out of here, you worthless, lazy piece of s—!! I wish your good-for-nothing father had used a condom!!”
Such talk by a boy’s mother is less than ideal, but we can understand Jane’s anger and outrage at her son’s willingness to carry on as he has, potentially killing himself in the middle of her living room. Yet we can also understand that she smacked at the syringe in her son’s arm to save his life, that she saw he was injecting life-threatening amounts of heroin, and that she did what was necessary to stop him. She was feeling both protective and enraged toward the same target, and there is nothing contradictory in this mix.
Yet if she caused John to bruise, neighbors might feel convinced that she was engaged in an unjustifiable battery rather than a necessary intervention. And they would be wrong.
Emotion a Clue but Not Dispositive
Knowing what emotions an accused felt at the time of an alleged offense is obviously helpful. If you knew that an accused murderer felt pleasure and happy excitement at the time that he killed his victim, you would have good evidence that the killing was not justified. But some of the emotions that we associate with particular kinds of actions could be misleading us (and juries). We might be applying the simple rule in error.
Someone who feels angry when she inflicts physical injury or even death on another person has not provided evidence that she was unjustified in what she did. Instead, although anger is generally a socially unwelcome emotion, it is also an extremely common feeling that people are likely to have when they encounter situations and individuals that threaten their own lives or wellbeing or the lives or wellbeing of the people they care about. The powerlessness that can provide the predicate for self-defense or defense of others will often induce allegedly incriminating feelings of rage. No one, however, should be convicted of a crime because he was angry at the time that he defended himself or another.