Several people have asked my opinion of the Rittenhouse verdict. With the caveat that I did not closely follow the entirety of the case, I will say that the verdict struck me as very gendered. I do not mean to comment on the balance of men and women on the jury. Instead, the sort of narrow focus required to acquit Kyle Rittenhouse says a lot about the kinds of self-protection that our society promotes and applauds—typically male self-protection—and the sorts for which our society has far less patience—what women must do to protect themselves.
Rittenhouse
The jury appears to have found that in the moments before Rittenhouse shot and killed two people and injured one, the defendant faced an imminent threat of death or substantial bodily harm. People can quibble over precisely what Rittenhouse could have done under the circumstances, but I am prepared to defer to the jurors who heard all the testimony rather than speculate based on the snippets of testimony that I happened to catch on NPR. Most salient, however, was the conduct that happened in the hours before these final moments, and that conduct seemed to play little part in the jury’s assessment of the defendant’s guilt or its application of the phrase “self-defense” to what he did.
Two days before Kyle Rittenhouse confronted the three men whom he shot in Kenosha on August 25, 2020, a police officer shot and paralyzed Jacob Blake, a Black man. Police had been attempting to arrest Blake over complaints of domestic violence and ended up shooting him in the back four times while Blake was reaching into his SUV after opening the car door. After this shooting, large numbers of people protested peacefully, and some protesters engaged in rioting and arson. A state of emergency was declared on the same day as the police shooting.
Two days later, Kyle Rittenhouse took his weapon, an AR-15-style rifle, from Antioch, Illinois, to Kenosha, Wisconsin, allegedly to protect businesses there from rioters. A state of emergency not only did not scare Rittenhouse; it seemed to attract him. The so-called “rioters and looters” (the judge’s preferred moniker for the people whom Rittenhouse had killed) apparently were a reason for—rather than a reason against—leaving his home state and traveling to the people who seemed to be extremely agitated and some of whom were out of control.
When students study the law of self-defense, they learn of the duty to retreat that requires anyone claiming self-defense to run away from a potential threat if such escape is a safe alternative. The idea is that if you can avoid getting killed simply by leaving a threatening scene, then you should leave rather than take the life of the threatening person. Deadly force, by a police officer or by a civilian, should be a last resort. In the home, however, a person does not have to retreat, even if it is safe to do so. A man’s home is his castle, the saying goes, and so if a person threatens you in your own home, you are entitled to stand your ground there and kill the threatening person without having to try to escape from him.
What would it have meant for Kyle Rittenhouse to have carried out a duty to retreat, if he had had one? Was he in his house such that he had the right to remain where he was and kill rather than attempt to escape from the people who threatened his life? No, he was not at home. He could have been at home if he had wanted to be. Instead, he left not only his home but his home state, Illinois, to travel to Wisconsin to place himself in the vicinity of protests that had devolved into rioting and arson and that had triggered a state of emergency. He was not a police officer. He was not a doctor or a paramedic (though he reportedly spoke of hoping to give people first aid—a regular Médecins Sans Frontières). He was just a 17-year-old hopped up on grandiose plans and itching to go to the scene of a fight armed with an assault rifle.
In Wisconsin, according to the instructions the jury heard (which I found rather confusing and self-contradictory), a person has no duty to retreat in the face of a threat of death or substantial bodily harm. But Rittenhouse did more than just “not retreat” from the threats that he faced. He positively pursued those threats, carrying a weapon that could well have communicated to the people he ultimately killed that he intended to carry out armed violence against the protesters. As some scholars have said, it is possible that both Rittenhouse and the people that he shot might have legitimately feared death or serious bodily harm. That is the magic of an armed populace expressing rage in the streets. Everyone can be justified in shooting everyone else.
Domestic Violence
What does the Rittenhouse verdict have to do with domestic violence? Recall the definition of self-defense we learn in law school: there is a duty to retreat that does not apply in the house. An additional feature of self-defense is the imminence requirement. To successfully invoke the justification of self-defense, one has to have faced an imminent threat of death or great bodily harm. The Rittenhouse jury received this instruction on imminence as well. Imminence means that if someone threatens to kill you later this week, then you may not kill that person until the moment at which he appears to be about to carry out his threat.
The duty to retreat and the imminence requirement are in one respect the same requirement: you may use deadly force only when necessary. If you can retreat (other than in your own home), then you must do so rather than kill. And if death or harm is not imminent, then you must take steps other than killing to protect yourself against the threat.
In another respect, however, the two requirements are quite different. Retreat means that you should escape and run away, if possible, the sort of thing that we would not require of a “real man.” Imminence, on the other hand, has a machismo about it. If someone is talking trash about what they’ll do to you in the future, you can just wait until the time comes and defend yourself then. To kill the person in advance out of a legitimate fear of future violence might reflect cowardice. A frightened woman might retreat, but a brave man would wait until the enemy is coming at him and then shoot him dead.
A woman living in an abusive relationship must abide by rules designed for men. Standing one’s ground in the home and waiting for an imminent attack is a good way for a woman to get killed. When a woman feels that she will die if she does not kill her partner first, she must plan. If she decides to leave her partner, she will—around the time of leaving—significantly increase her chances of falling prey to an assault and perhaps a murder by her partner. When I worked with battered women while in law school, I learned that advising a woman to leave when she was unsure about what to do could easily result in her injury or death. The most dangerous time in an abusive relationship is the time immediately after the breakup.
A woman who understands this reality might decide to stay with her partner rather than increase her risk of death or injury. Over time, of course, the abuse can escalate, so she may find herself caught between the Scylla of staying and the Charybdis of leaving. Some women in this situation decide that they must kill their respective batterers when there is no assault in progress, perhaps the only time that the victims are in an advantageous position relative to their assailants. They kill to save their own lives.
Such women do not fare well in the criminal justice system. The system sees the lack of imminence and wonders whether the women truly needed to use deadly force. Why did they not leave? (Because leaving can be lethal) Why did they not call the police? (Because police have not always taken domestic violence seriously, and because abusers can become more violent after having spent a night in jail when the victim called the police). Ironically, asking the abuse victim why she did not leave seems to demand that she retreat from her own home, even though home (one’s castle) is the one place where no one has an obligation to retreat, even under the more traditional approach to self-defense.
The imminence requirement can be deadly for a person who is much smaller and much less prepared for battle than her assailant. She must wait until an attack, as though she were equal in strength to her enemy. And she mustn’t remain in her own home when she perceives a threat there. Unlike the man, her home is not her castle.
Contrast her predicament with that of Kyle Rittenhouse. Rittenhouse not only had no duty to retreat from his home or anywhere else. He had the authority to run after the threat, a threat that materialized only because he chose to pursue it. Had Rittenhouse remained at home or in Illinois, the three men that he shot would never have posed any kind of threat to him. Furthermore, since he was the only person who fired on the three men (or on anyone) that night in Kenosha, it appears that they would not have posed a threat to anyone else either. Yet the law encourages people like Rittenhouse to run toward rather than away from potential threats and to shoot them once the threats materialize. Even as thousands of women have served hard time in prison for trying to defend their lives from an abuser, Kyle Rittenhouse walks free after choosing to travel with an assault rifle to another state, looking for threats, and then using his firearm to neutralize the threats he helped generate. The law of self-defense, especially as it is developing away from the duty to retreat, favors testosterone-fueled vigilantes over the women who choose to survive rather than succumb to domestic violence. For that reason alone, the Rittenhouse verdict shines a spotlight on gross inequality in our criminal justice system.