Convicted Survivors: The Imprisonment of Battered Women Who Kill

Chapter 2. Battered Women Who Kill and the Criminal Justice System: A Review of the Literature

Chapter Two
Battered Women Who Kill and the Criminal Justice System: A Review of the Literature Legal Legacy Throughout much of known human history, traditions and laws relating to marriage have given husbands the right to control their wives, by force if necessary. Napoleon decreed that women must be legal minors their entire lives (Davidson 1977). English jurist and politician Sir Edward Coke (1552–1634) captured the philosophy of male primacy in the home with the still popular phrase, “a man’s home is his castle.” British common law allowed wife beating but, in a move toward “compassionate” reform, limited the size of the correctional instrument used by husbands to a “rod not thicker than his thumb” (Brown and Hendricks 1998; Dobash and Dobash 1977; U.S. Commission on Civil Rights 1982). The British doctrine of “coverture ” determined that a husband and wife were a single legal entity, and that entity was, of course, the husband. Such laws served to codify a married woman’s loss of identity and individual autonomy. Under British common law, if a man killed his wife his action was classified as a homicide; if a woman killed her husband her action was classified as an act of treason punishable by burning at the stake (Jones 1994). American law followed the British legal tradition that supported the husband’s right to discipline his wife. It was not until 1871 that an Alabama court revoked the legal right of a husband to beat his wife; in 1874 a North Carolina court followed suit but narrowed the impact of the repeal: If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to 13 draw the curtain, shut out the public gaze, and leave the parties to forget and forgive. (U.S. Commission on Civil Rights 1982, 2) Until the 1950s, husbands in New Mexico, Texas, and Utah received “special immunity from prosecution if they were to find their wives in an adulterous situation and commit homicide. . . . The same right was not granted to wives” (Dobash and Dobash 1979, 209). Contemporary Landscape While American law no longer grants legal permission for a husband to beat his wife, the domestic curtain shows little sign of collapse. According to the 1982 U.S. Commission on Civil Rights, “the laws available for the protection of all people do not protect a woman involved with her assailant in a prior or existing relationship” (2). Ann Jones (1994) observes, The constitutional rights of all American women—to freedom from bodily harm, equal protection, due process—and the very lives of thousands lie at the disposal of cops and prosecutors and judges who still think the subject before us is “marital problems.” (80) The American Bar Association (ABA) Commission on Domestic Violence (1997) observes that violence between intimate partners has a tremendous impact on the legal profession. Whether or not lawyers realize it, domestic violence permeates the practice of law in almost every field. Corporate lawyers, bankruptcy lawyers, tort lawyers, real property lawyers, criminal defense lawyers, and family lawyers, regularly represent victims of domestic violence. (I-5) However, the commission also notes that many legal professionals lack understanding of domestic violence and fail to represent victims effectively. Further, the commission suggests that uninformed legal professionals may put victims at risk “or contribute to a society which has historically condoned the abuse of intimate partners ” (I-5). 14 Convicted Survivors Many batterers rape their female partners, often causing serious physical and psychological damage (Browne 1992; Tjaden and Thoennes 2000; Wiehe and Richards 1995). Despite the welldocumented harm inflicted by rape, defining rape within marriage as a crime continues to be controversial. Russell reports, A few states have completely eliminated the marital exemption from their law; others have enacted legislation that makes some rapes within marriage a crime; and in other states court actions have essentially overturned the marital exemption. (cited in Crowell and Burgess 1996, 127) While at present all 50 states and the District of Columbia have repealed the marital rape exemption, definitions of the offense are inconsistent across jurisdictions and where statutes do exit, sanctions vary widely (Bernat 2001; Bergen 1999; Wiehe and Richards 1995). Thirty-three states currently uphold exemptions that protect husbands from rape prosecution, substantiating the view that rape in marriage is a lesser crime than other forms of rape (Bergen 1999). Some states grant husbands “partial exemption” allowing...