Self-Defense, Battered Wives, Reasonableness, and the Imminent Danger Doctrine

The commandment, “Thou shalt not kill,” did not come with a list of exceptions. Nevertheless, few people today regard that commandment as absolute and our laws have legitimized the most common exception, killing in self-defense.

Even though most people generally agree that the law should permit a person to use deadly force in self-defense, lawmakers have struggled to come up with a bright line rule that establishes a clear boundary between when it is permissible to use deadly force in self-defense and when it is not. Put another way, when you believe someone is going to kill you, how long do you have to wait before you can lawfully use deadly force to defend yourself?

The answer to this question is as vexing to nations as it is to individuals.

Consider, for example, the decision of the United States Government to attack Iraq to prevent Saddam Hussein from using weapons of mass destruction against other nations. Assuming for the sake of argument that he had weapons of mass destruction and intended to use them against other nations, which was not true, would a preemptive strike in self-defense or defense of others have been a legitimate use of force?

Consider the same question on the personal level. If someone is coming to kill you, should you be able to use deadly force in preemptive self-defense before you are in any actual danger or should you have to wait until it might be too late to save yourself?

There is no easy answer to this question and no predicament better illustrates this dilemma than the plight of the battered wife or girlfriend.

Psychologists have developed a term to describe women who remain in abusive relationships. They call it Battered Wife Syndrome. Women who suffer from the syndrome feel typically feel isolated, trapped and powerless in an abusive relationship where the abuser alternates between being abusive and apologetic. Due to difficult financial circumstances, the women fear they cannot survive on their own. This fear is exacerbated if they have children. They will not leave them behind and decide to remain in the relationship because they fear they cannot provide for their children if they leave and take them with them. Instead of leaving, the women try to adapt by becoming more accepting of the abuse. Psychologists have a name for this condition. They call it “learned helplessness.” Meanwhile, over time the abuse escalates into ever more physical attacks and beatings. Eventually, many of these women are killed by their abusive husbands or boyfriends.

Sometimes, however, they reach a breaking point before it’s too late for them to save themselves. They decide to kill the abuser and it is not unusual to see cases where they kill him when he might least expect it. For example, shooting him to death while he sleeps.

This situation occurred in State of Washington v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984). The Court described the facts as follows:

The defendant married Wayne Allery in 1975. Shortly after the marriage, she began to experience what was to become a consistent pattern of physical abuse at the hands of her husband. She suffered periodic pistol whippings, assaults with knives, and numerous beatings from her husband’s fists throughout the marriage. In 1978, Mrs. Allery was hospitalized after her husband struck her on the head with a tire iron. During the last year of their marriage, the beatings increased in frequency and severity. Finally, on October 24, 1980, Mrs. Allery initiated divorce proceedings and served her husband with restraining orders.

The shooting occurred early in the morning of November 1, 1980. The defendant testified that she entered her house late at night not expecting to find her husband there because of the restraining orders. She bolted the door locked when she entered. As she moved through the house and into the kitchen, a light came on by the couch. Mr. Allery was lying there and said to her, “I guess I’m just going to have to kill you sonofabitch. Did you hear me that time?” Report of Proceedings, at 611.

The defendant went into the bedroom and tried unsuccessfully to open the window to escape. She heard a metallic noise from the kitchen and thought Mr. Allery was getting a knife. While in the bedroom, the defendant loaded one shell into a shotgun. She moved from the bedroom to the kitchen area and fired the shot that killed her husband while he remained lying on the couch.

The Washington State Supreme Court reversed her first degree murder conviction on the ground that the trial court erred in refusing to allow the defense to present expert testimony regarding battered wife syndrome to explain to the jury why a battered wife would reasonably believe herself to be in imminent danger of being killed or suffering grievous bodily harm even though her husband was sleeping at the time she killed him.

There is a difference between the meaning of the words “immediate” and “imminent.” Mrs. Allery may not have been in immediate danger while her husband was sleeping on the couch. Given her past experiences with her husband, however, she had good reason to believe she was in imminent danger that would turn into immediate danger as soon as he woke up.

I hope y’all find this discussion helpful in understanding the imminent danger doctrine relative to the efforts of lawmakers and judges to decide where to draw the line that separates murder from justifiable homicide in self-defense.

For your information, Washington State’s self-defense statute is substantially similar to the Florida statute in that both have no duty to retreat and both require a jury to decide whether the defendant reasonably believed he was in imminent danger of being killed or suffering serious injury when he used deadly force.

They differ, however, in that the Washington statute has an additional subjective component that requires the jury to put itself in the defendant’s position and perceiving what she perceived and knowing what she knew decide whether her use of deadly force was reasonable. This additional requirement is significant in battered wife syndrome cases because it requires a jury to apply an individually tailored standard of reasonableness that can produce different results in different cases.

For more information on the battered wife syndrome, check out this law review article.

89 Responses to Self-Defense, Battered Wives, Reasonableness, and the Imminent Danger Doctrine

  1. TM says:

    Lonnie Starr, my misunderstanding, and thank you Professor for your response. First time I ever asked and only because I wrongfully thought LS was ushering me out. Why not! lol

    • Lonnie Starr says:

      “Lonnie Starr, my misunderstanding, and thank you Professor for your response. First time I ever asked and only because I wrongfully thought LS was ushering me out. Why not! lol”

      As a “student” of debates in the park, both Washington Square and Pershing Square in the 60’s / 70’s, I would never seek to “usher” anyone out, most especially not because they disagreed with me. Well measured disagreement is the salt of debate.

  2. Dave says:

    OK, Dennis. I’ll ask you the same question that I asked *Two sides to a story* yesterday. Rather than shooting her husband, what do you think Mrs. Allery should have done?

    • Dennis says:

      I am saying that Charlene is a liar and she murdered her husband in cold blood for money, then tries to play the innocent battered wife card. Charlene claims that she laid the pistol on the bed and it only enraged her husband further, so she shot him as he lunged toward her. One of Charlene’s sons, Jeremy, testified that Charlene told him that her husband never came toward her that night. She had the motive, a soon to be coming divorce and she wanted the life insurance money including all of her husband’s assets. The court was just about to be read the guilty verdict when Charlene yelled out that she would take the plea deal, which sadly only gives her 10 years of probation and no prison time. I’m not saying Charlene was never abused or got into domestic situations, but the circumstances of that night do not prove self-defense in my eyes.

  3. Dennis says:

    The prosecutor in the Horn Jr trial said “If there’s not a continuous reasonable threat every time he pulls that trigger, it’s murder.” Shooting someone to death in their sleep is murder, plain and simple. I feel horrible for the women that are not smart enough to leave their abusive husbands, but if you decide to take a life you have to face the consequences. If you are not in immediate danger of great bodily harm or death, that is not self-defense. Charlene Hill is a perfect example of a woman who murdered her husband in cold blood and then pretended to be a battered wife. Justice was not served for the victim and this woman only received 10 years probation with no jail time.

    • Lonnie Starr says:

      ” I feel horrible for the women that are not smart enough to leave their abusive husbands,”

      If only leaving an abusive spouse were a matter of “smarts”, Dennis.

      Often it’s smarts that are keeping them there! That plus emotions, concern for children and a host of other interconnected errata.

      The matter of “pulling the trigger each time”. That is a much different story than the one we’re talking about. In that case, the gunman should have stopped once the attack ceased. But, well, human nature, we can get so wound up with emotion, we just can’t stop ourselves once we get going. So the “volume” of offense has to be gauged. If someone had killed your family, for example, you’d probably empty the gun and reload (and I can’t say I wouldn’t blame you either). Emotion is a difficult thing to control.

      In this case she knows that the man sleeping on her couch is a deadly threat to her. Does she have to wait until he’s actually in the process of killing her to act? How could she know? She cannot distinguish between his attacks that are only meant to hurt, from which would be meant to kill. The history shows he doesn’t care, he doesn’t concern himself with how far he’s going. So, any attack could just as easily result in death as serious injury. All we do know is that he does it, time and time again. From the narrative we see that, even as he sleeps, he’s harboring serious reasons to start another one of these projects, once he wakes up. So, she should wait to see if it happens? Wait to see if she had the nerve to look him in the eye and shoot?

      And finally she won’t be the last word on the matter, she will have to pass judicial review.

  4. Malisha says:

    DSal, wrong. 171. Authorities confirm this.

  5. DSal says:

    “They differ, however, in that the Washington statute has an additional subjective component that requires the jury to put itself in the defendant’s position and perceiving what she perceived and knowing what she knew decide whether her use of deadly force was reasonable.”

    The statutes are different, but the jury instructions for justifiable homicide in Florida shore up that difference:

    “In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.”

    • I do not agree. The language used in the Washington State pattern jury instruction is similar, but slightly different:

      WPIC 16.02 Justifiable Homicide—Defense of Self and Others

      It is a defense to a charge of [murder] [manslaughter] that the homicide was justifiable as defined in this instruction.

      Homicide is justifiable when committed in the lawful defense of [the slayer] [the slayer’s [husband] [wife] [registered domestic partner] [parent] [child] [brother] [sister]] [any person in the slayer’s presence or company] when:

      1) the slayer reasonably believed that the person slain [or others whom the defendant reasonably believed were acting in concert with the person slain] intended [to commit a felony] [to inflict death or great personal injury];

      2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and

      3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to [him] [her], at the time of [and prior to] the incident.

      The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.

      Florida: “you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used.”

      Washington: “the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to [him] [her], at the time of [and prior to] the incident.”

      Conclusion:

      The Washington pattern instruction goes a step further from “the circumstances by which [he] [she] was surrounded at the time the force was used,” which is an objective standard, to “taking into consideration all the facts and circumstances as they appeared to [him] [her], at the time of [and prior to] the incident,” which is a subjective standard.

      • DSal says:

        Determining that the person “actually BELIEVED that the danger was real,” opens it up to being just as subjective as the wording in Washington’s statutes.

        • I still don’t agree, but I’m willing to concede that, as far as most people are concerned, we’re arguing about how many angels can dance on the head of a pin.

          • Lonnie Starr says:

            “I still don’t agree, but I’m willing to concede that, as far as most people are concerned, we’re arguing about how many angels can dance on the head of a pin.”

            I’ll go you one better and say, the courts are leaving it up to the jury, as opposed to trying to fashion a rule that could apply in every case. They are saying that if a jury believes that the submitted evidence is reasonable/rational/truthful, and they can conclude that other options are probably unworkable in ending the ongoing threat, then the jury may accept that and rule not guilty.

            Under the nature of cross examination, it would be really risky to lie, or attempt to contrive a false scenario, because it would have to be delivered with believable emotional fare behind it, and not materially controverted, in main, by investigative discoveries. Thus a psychopath or sociopaths emotional miscues would be incredibly dangerous things to expose to a jury in such a case.

      • DSal says:

        The answer is 42. 🙂

      • Dennis says:

        @Lonnie Starr

        It is the opinion of the 4th District Court of Florida that if the facts and circumstances regarding the case are disputed, then it should be left up to a jury to decide self-defense. At an immunity hearing I believe the burden is on the defense to prove that the murder was justified. If they are unsure, it goes to trial for a jury to decide.

    • Lonnie Starr says:

      That test sounds a little like: “Has s/he ever nearly killed you or anyone else before?”

      Kinda reminds me of an Alfred Hitchcock story, one spouse figures out that their mate is planning to murder him/her by putting poison in their favorite wine bottle in the fridge. Without knowing whether or not it was true, s/he went and switched the bottles. Needless to say it was true.

  6. Malisha says:

    I remember a NY case where an heiress of a big (biiiiiiiiig) publishing empire was murdered by her significant other or her husband or her boyfriend of somesuch. He had beaten her up repeatedly and she had protective orders against him >>>>.

    It was pointed out that the penalty for murder-1 was life, whereas the penalty for violating a protective order was 6 months. What did he care about violating a protective order if he chose to kill her?

    On the other hand, if there is a way to use court process (such as protective orders) to give people a bit more inhibition than they otherwise display, that can be very useful. I believe sincerely that if some of the complaints made to the police about George Zimmerman’s aggressive behavior at the Retreat PRIOR TO HIS KILLING TRAYVON MARTIN had been acted on and perhaps if he had been called into the police department and read the riot act (“We have been getting complaints that you’re armed and threatening folks and they are afraid and Florida law does not allow terroristic threatening etc. blah blah blah”) he would not have seen fit to grandstand the “hero act” on 2/26/2012.

    • Lonnie Starr says:

      That is exactly what they were supposed to be doing, keeping tabs on each and every NW group they established, and requiring them to keep records as well, who are members, who are patrolling, who are on the “trees”, And debrief each group every once in while, to ensure that no secret society is forming or taking over the process.

      I don’t think closer regulations of NW will happen without a massive penalty being paid by the City of Sanford, the SPD and the RATL.
      It should be large enough to shake them all to their roots.

  7. shannoninmiami says:

    Gz will have to say he was completely defenseless against Trayvon. But that’s just his story, and the evidence won’t support his story. The jury doesn’t have to rely on a killer’s self serving statements as fact.

    Won’t they ask themselves; did Trayvon actually pose a serious risk to GZ’s person? If so what is the evidence of the deadly, physical attack GZ says happened? There’s not much on GZ, so let’s look to Trayvon. Where is the evidence on Trayvon’s body?
    How could Trayvon beat him so brutally yet have none of GZ’s DNA under his nails? And where is GZ’s DNA on Trayvon’s clothes if everything happened in the order GZ says? IF GZ was bleeding so much from the nose and head why didn’t blood get all over Trayvon’s clothes while he is holding GZ down, beating him on his bloody face and head?
    I think the forensics are the best, most damning, objective evidence against him. Especially since he’s locked into his very detailed story!

    • Lonnie Starr says:

      I wonder if these GZ/TM comments belong here? Perhaps they can be moved to where they’re appropriate? I get the impression they got here because somebody reading by email, didn’t see the topic scroll by and just clicked on reply before going beddie bye. Lol.

      • TM says:

        Lonnie Starr, are you saying that one with a question is not allowed on this post. Only those who are thoroughly familiar and of the same opinion are invited. My question was open, and legally I am surprised the Professor had no interest in answering it. The reason i questioned was, at the immediate time he did not accost her, and certainly if he had she would be dead and not him but I was thinking of how the LAW interpreted her story of just picking up a gun and shooting him when apparently he did not make a move toward her. I think it was a
        very tedious decision, though right for her future.

        • Do not assume that I had no interest in answering your question. I cannot answer every question.

          The Washington State Supreme Court implicitly recognized that her decision to use deadly force, even though he was asleep, was lawful, if she believed she was in imminent danger. They left it up to the jury to decide if she believed that.

          Incidentally, I used her case as the basis for the final exam in my trial advocacy case. Each student had a legal role to play and students in another class served as witnesses and the jury. I was the judge.

        • Lonnie Starr says:

          “Lonnie Starr, are you saying that one with a question is not allowed on this post. Only those who are thoroughly familiar and of the same opinion are invited. My question was open, and legally I am surprised the Professor had no interest in answering it. The reason i questioned was, at the immediate time he did not accost her, and certainly if he had she would be dead and not him but I was thinking of how the LAW interpreted her story of just picking up a gun and shooting him when apparently he did not make a move toward her. I think it was a very tedious decision, though right for her future.”
          ——————————————————————

          Errrr… Okay, you got something wrong, it was the GZ post I was referring to, not yours. Over here the people most interested in GZ/TM aren’t going to see it. So I wasn’t trying to play blog cop, I was just offering a suggestion that perhaps would get the poster more readers.

          this would be more relevant: https://frederickleatherman.wordpress.com/2012/09/09/self-defense-battered-wives-reasonableness-and-the-imminent-danger-doctrine/#comment-18972

          seems my replies are coming out up thread of where they should be for some strange reason.

          You can’t simply assume that posts that follow yours are actually written to you. which is why I’m not copying and pasting a bit of the post I’m replying to, to make it easier to follow.

  8. TM says:

    shannoninmiami, Mrs. Allery came in and he was there, how did he get in? Didn’t she have a restraining order? He did not surprisingly
    grab her he was sitting on the couch, why didn’t she run out. I am basing this on the fact that she knew how dangerous he was because of previous abuse. I know, never lived it, can’t possibly understand. I think I can, just want to know some answers.

    • Lonnie Starr says:

      “shannoninmiami, Mrs. Allery came in and he was there, how did he get in? Didn’t she have a restraining order? He did not surprisingly grab her he was sitting on the couch, why didn’t she run out. I am basing this on the fact that she knew how dangerous he was because of previous abuse. I know, never lived it, can’t possibly understand. I think I can, just want to know some answers.”

      Put it this way: You’re on your way home, you’re waiting for a bus, there’s a tv on and you’re watching the news. There’s a guy’s face, they’re looking for him, he’s killed several people. there’s a manhunt underway.

      You arrive home and go in, you notice someone asleep on your couch, it’s the guy you saw on tv. So you slink into the bedroom, there’s a gun in the nightstand. Obviously you call 911, but, just as obviously, you first pick up the gun and have it ready. You make the call but you hear him stirr as your children and wife are about to come in the front door… Now what?

  9. Brown says:

    Back to the case at hand. Imminent danger. Can MOM prove that GZ was in “danger”? I agree with the prof, when do you draw the line? After one punch after three punches? What might be reasonable fear for me might not be for others. What is the threshold? How can a jury find that GZ was justified with all the evidence to date. So many questions so little answers, its going to be a long year……
    Its time to go to bed…..
    Another long week ahead…..

    • Malisha says:

      I don’t believe GZ can prove anything NEAR a reasonable fear of great bodily harm or death. First of all, as Detective Serino told him point blank, he had “capillary lacerations” to his head, “not coincident with” the kind of beating he described AND not serious at all. Secondly, his “broken nose” was not shown to be “broken” and its brokenness — if there was any such brokenness — was not indicative of great bodily injury. People get worse injuries playing badminton. Since he did not have any history of having been beaten by Trayvon Martin in the past, he had no reason to suspect that Trayvon Martin would beat him to death on the night in question. And finally, the ridiculous stories he tells not only are without support in the physical evidence but they sound dumb.

      What is “reasonable fear” can be decided by a reasonable fact-finder. That would be a judge in a SYG hearing, or a jury in a trial. If it doesn’t appear believable it is not going to appear reasonable. That’s about all you can expect from reasonable people and that is all that is needed.

      There was a case in Bethesda, MD in which a woman said she was beaten up and her co-worker was killed — by intruders. The woman’s injuries were not very severe. A bit of investigation made it pretty obvious that this woman killed her co-worker and then smashed herself up a bit and pretended to be the victim. The jury did not believe an irrational and unreasonable story. That is, in my opinion, what will happen to GZ if MOM takes him to trial. That is why, in my opinion, there will ultimately be either an escape or a plea deal. (If there is an escape, GZ will leave notes or messages or stuff on-line saying he had to escape because he could not get a fair trial, and he owed it to his wife and unborn children — whom he already loves — to protect them from having to live life without him.)

  10. TM says:

    Mrs. Allery came home, he was there! When she saw him there why didn’t she immediately leave. Am I understanding correctly, that Mrs. Allery “invited” her husband over. Who locked the door? She has the freedom to move around and go into the bedroom and prepare a gun to shoot him with. There is no witness that stated he said “I’ll have to kill you now”. She stated she heard some metalic noise, (assuming he was getting a knife) but when she left the bedroom with the loaded gun, he was still on the couch and she out and out shot him. Of course I agree there are situations to be evaluated, but what am I missing in the Allery one. Is it not one of pre-meditated murder? by both husband and wife. She carried it out. Some men have not planned to kill a wife, they enjoy the abuse part. Beating them into fear and submission, for some sick reason.

    • shannoninmiami says:

      no, you didn’t understand correctly. she came home alone at night. she bolt locks the door behind her. as she moved to enter the kitchen her husband turns on a light. she’s trapped.

    • Lonnie Starr says:

      “Mrs. Allery came home, he was there! When she saw him there why didn’t she immediately leave. Am I understanding correctly, that Mrs. Allery “invited” her husband over. Who locked the door? She has the freedom to move around and go into the bedroom and prepare a gun to shoot him with. There is no witness that stated he said “I’ll have to kill you now”. She stated she heard some metalic noise, (assuming he was getting a knife) but when she left the bedroom with the loaded gun, he was still on the couch and she out and out shot him. Of course I agree there are situations to be evaluated, but what am I missing in the Allery one. Is it not one of pre-meditated murder? by both husband and wife. She carried it out. Some men have not planned to kill a wife, they enjoy the abuse part. Beating them into fear and submission, for some sick reason.”

      I think the operant ideas there were, what could she expect?
      I think the court agreed, after review of the history, that she could very reasonably expect to be killed in the very near future, and that there was no other action she could take, that would reasonably prevent that. Unlike an assailant who you might meet on the street, where once they are taken away you are forgotten. They had a relationship that kept them both intertwined. Such that it did not matter where he or she went, or how long they had been separated. She was, irrevocably, the object of his abusive intentions, which did not include sparing her life by design, but only by accident.

      Even if she invited him, he should have refused and told her that if she wanted to see him, she’d have to get court permission. So, an “extra legal” appearance by him, points to a good possibility that he’s planning yet another life threatening attack, or else why bother going there? If he could fall asleep on the couch, there obviously was no business so pressing that it could not wait.

      • Dave says:

        Maybe he could fall asleep but could she? If she did (and it was very late at night) she would be even more vulnerable than she was while awake. The threat had to be eliminated in a timely fashion. It was.

        • Lonnie Starr says:

          “Maybe he could fall asleep but could she? If she did (and it was very late at night) she would be even more vulnerable than she was while awake. The threat had to be eliminated in a timely fashion. It was.”
          ——————————————————————–

          Here you are replying to text that I did not write, but quoted from another poster. Read my post upthread you’ll see I agree with you.

          The man laying asleep on her couch was a deadly threat that there simply was no other way to abate. The only thing available, other than taking decisive action then, would be to delay the day of reckoning until perhaps, she was in a less advantageous position and therefore, very likely deceased.

  11. Brown says:

    @Prof
    You wrote
    Sometimes, however, they reach a breaking point before it’s too late for them to save themselves. They decide to kill the abuser and it is not unusual to see cases where they kill him when he might least expect it. For example, shooting him to death while he sleeps.

    She kills her abuser in his sleep.

    True Story, Great Movie If anybody gets a chance watch this movie. Farrah Fawcett is the star of this movie.

    I’ll post the first part, you can see the rest on youtube.

  12. TruthBTold says:

    This is truly an excellent and enriching learning environment.

  13. Two sides to a story says:

    I find it hard to wrap my head around the fact that American citizens have greater rights to engage in killing for self-defense than our servicemen and women, who have stricter rules of engagement in warfare. And as a former battered spouse, I have sympathy but also some scorn for women who chooose to kill their spouses rather than find a way out. There’s always a way out. It may take planning and ingenuity and mental fortitude and determination to rise above the feeling of hopelessness and so forth, but the only real excuse for killing even the most abusive spouse is during an inescapable and severe assault.

    We have to be better than these overly permissive laws that allow us to kill with only the perception that we fear for our lives.

    • Dave says:

      Two sides,

      Rather than shooting her husband, what do you think Mrs. Avery should have done?

      • Xena says:

        @Dave. There are too many variables to guess what Mrs. Avery should have done. For some, when they file for divorce and the court enters a restraining order, they have done what they believe is their only option or right. OTOH, those more familiar with the law might have called 911 to report the violation of the restraining order and hoped that their husband didn’t wake up until police arrived.

        For many abused spouses, there is a certain amount of shame or embarrassment combined with fear. When the other spouse is able to lie their way out of things or blame the other spouse, that fear prevents them from turning to authorities, including social workers and LE. They prefer to avoid the court in order to avoid mudslinging. As one instance, what would prevent Mr. Avery from claiming that Ms. Avery invited him over?

        So, in those variables is also knowledge of what the abuser is capable of doing.

      • Dave says:

        In reply to Xena,

        Mrs. Avery knew from experience what her husband was capable of: pistolwhipping her , attacking her with knives, bashing her in the head with a tire iron. The last-cited attack put her in the hospital and could have easily killed her. She might not be that lucky next time.

        As for calling 911, we don’t know where her phone(s) was/were. Remember this case occurred before cellphones were commonplace. Dialing 911 in the face of a dangerous “suspect” would have been extremely risky. (Does this sound familiar?)

        Also, if Mr. Avery claimed that Mrs. Avery invited him over, he would still be in violation of the restraining order.

        • Lonnie Starr says:

          “As for calling 911, we don’t know where her phone(s) was/were. Remember this case occurred before cellphones were commonplace. Dialing 911 in the face of a dangerous “suspect” would have been extremely risky. (Does this sound familiar?) Also, if Mr. Avery claimed that Mrs. Avery invited him over, he would still be in violation of the restraining order.”

          Given the history, I don’t think or see a 911 call as any solution, since it only creates another provocative action, which will be ineffectively resolved, by letting the offender eventually go his way, to attack another day. Another attack that might not offer the same opportunity this one did.

          She already has a restraining order, yet here is the mortal threat to herself, calmly sleeping on her couch in spite of the legal ramifications. Will 911 come and put him in jail for life or execute him? Of course not. Nor will resolution of a new action, prevent him from presenting again. She, effectively has a death threat to herself, sleeping calmly on her couch, waiting to do with her, whatever it decides, whenever it decides to do it, and she has no legal protection to stop it. Save, a right to defend against an imminent threat to her life. A slim and difficult to understand defense for many, even those schooled at law.

          She acted, fortuitously and probably without knowledge sufficient, and let the “chips fall where they may”. Only to discover that, she fortunately had the law on her side. At what point, and how many times, will others take that risk?

          • fauxmccoy says:

            it is also important to be mindful that the majority of abusers are manipulative, controlling people. they will separate the victim from support of friends and family; deny access to shared finances; cut off lines of communication by breaking phones (cell or landline), or cutting connection lines; sadly, the list goes on and on and on.

      • Xena says:

        @Dave. II tried the other side — the one rather than shooting her husband, remember? 🙂

        Re: Inviting him over. I’ve seen cases where this was alleged, and the woman either being afraid or not wanting to appear stupid in court, agreed that she invited the abuser over. The court sentenced for time served and fined for the bail amount. The emergency order of protection was vacated. A week later, there was the same woman preparing another order of protection. (sigh)

      • Lonnie Starr says:

        Yeah, it’s not like she could have waited for him to awake, so that she could reason with him. Egad!

    • Brown says:

      I have sympathy but also some scorn for women who choose to kill their spouses rather than find a way out….

      My mother was beaten on almost a daily basis. I won’t go into all the details but she did find a way out, she slit her wrists.

      Can you imagine a young girl trying to mop up the blood, well thats what I did. I couldn’t get it up. it was so thick.

      For you to say that you have some scorn for women who kill instead of finding a way out, is beyond me. If I was older I would of killed him myself.

      • Vicky says:

        Brown, my heart goes out to you, you mom and the rest of her family. How devastating that must have been!

        • Brown says:

          Thanks Vicky.
          When I read that post, It made me think of what happened to my mother. I haven’t thought of that in a very long time. It was crazy for me to think that if I cleaned up the blood it would be like it never happened. The mop was just to big and the blood to thick on the floor. I was only 9. It made me think what fucking possible way did she have. She had no money, no skills, 2 children. Protection orders were not even invented then, and if she did get one that would of meant a week in the hospital at the very least. Police ha we didn’t even have a phone. people knew family knew that’s just the way things were.

          • Lonnie Starr says:

            “Police ha we didn’t even have a phone. people knew family knew that’s just the way things were.”

            Unless you have friends or family, who are sufficiently involved to be emotionally moved to set aside their civil responsibilities, they’re not going to place themselves and their families at risk, of engaging in a physical altercation, that may very well involve a capital crime being committed. So they just try to ignore the problem and hope it will go away. After all, the thought of sacrificing themselves and their own families future, on the necessary civil risks, is just too high a hill for “gentle people” to climb. You’d need a “navy seal” uncle or an FBI/LEO relative, or even perhaps a mobster, to intervene. Average citizens just aren’t in possession of the “moxie” to even envision themselves, providing successful intervention.

            You have my deep regrets for the problems you had to deal with, it is indeed painful to think about. But, that said, I don’t think you should burden yourself with the additional angst against those who did not come to your aid. That’s pretty much the very way that people who are civil and/or trained to be civil/gentle, act. They act that way because they are that way. Meaning they are not brash and/or violent, as they would need to be, if they were to be effective. Of course, there are people who are more clever, who could provide clandestine assistance effectively, but they too are rare and usually such skills put them far away.

          • fauxmccoy says:

            one of the most horrifying crisis calls i responded to as a counselor at the battered woman’s shelter was from a smart woman speaking in a hushed voice at 3 AM so as to not awaken her abusive husband – a local high-ranking police officer sleeping off a drunk. i listened to her for about 90 minutes, gave her multiple options for immediate help (we would only pick up clients and their children once they had gotten to a safe spot such as a hospital, fire or police station – for our own protection).

            her fear was enormous – her husband obviously knew precisely where our shelter was because of our close ties with them, so coming to our shelter was not an option. i was able to offer her immediate shelter in a hotel, under an assumed name and a bus ticket to an out-of-state ‘sister shelter’ over 1k miles away and even that was not sufficient to over come her fears that her abuser had the means to find her.

            all i could do was listen and it felt to me that this could not possibly enough. i told her she could call at any time and we would always be available, but know that in the years i worked there, she never got over her fear of leaving.

            such is the heartbreak of of this work – there are some rewarding moments, but they sure seemed few and far between.

      • TruthBTold says:

        Oh Brown, I’m truly sorry.

      • Xena says:

        @Brown. I’m so sorry to hear what you experienced. As a 9 yr old child it had to be — well, I can’t think of a word to describe it.

        • Brown says:

          @Xena,
          No worries My friend…
          Sorry for the typo, it should read wrist not wrists….

          @Xena
          ; ^ )
          Have a good day.. off to work… Love your new post on BlackButterfly

      • Rachael says:

        (((brown)))

      • fauxmccoy says:

        my dear blushed brown – your story is horrific and i completely understand. in my own situation, we were fortunate that no one died, but it was not for the lack of trying.

        yes, you are stronger for the experience, i know this, but i also hope that you have taken care of yourself in this process and been mindful of the evil cyclic nature of domestic violence.

        blessings upon you

        • Brown says:

          My Dear FauxMcCoy
          Thank you so much for the heartfelt post.
          I must say that even though she cut her wrist. She survived. She couldn’t use her left arm after that. She survived. No one knows how but she did. Finally an intervention was done and I was placed with her sister, who raised me, her two and another cousin who was in the same kinda boat. Needless to say she went back with her abuser, my stepfather and left NY and went to his homestate of PA. A couple of years later she died in a house fire were both of them were intoxicated. He told the local newspaper that he tried to save her. ( Not likely) I truly believe she is in a better place. No pain. No tears.
          My Aunt-Mother, took excellent care of me. Great schools, homelife, and music. She and my uncle did a great job with me and my brothers.

          I never have tolerated men who put their hands on a woman or a child.

          I think that’s why this case has troubled me so.

          I am so tired of the guns being used.
          Whatever happened to the good ole days, if you had a fight you dusted yourself off and lived to tell about it.

          This could of been of been my son walking home. My son looked like TM when he was that age. Tall lanky, brown skin, quiet disposition.

          I don’t think I would of had the courage and demeanor that the Martin/Fulton family has displayed if it was my son.

          PS
          Thanks and prayers to all who have posted a response to my post.
          PS Lonnie I owe you a personal post.

    • Sandra E. Graham says:

      …as a former battered spouse, you have scorn for women who are forced to kill the batterer! As a former battered spouse who had the ability to leave the abusive relationship, you may want to research before making a comment such as you have. To make such a comment, you REALLY have no idea.

      • Brown says:

        Totally agree Sandra, she or he has no clue. It takes more then research to understand what we are talking about.

      • Tzar says:

        My sympathies to you and Brown. I simply can’t stand bullies and my scorn will only be cast upon them, because they fully understand the mindfuck they are putting these women through. All they get they deserve.

    • Vicky says:

      Two sides, I can understand where you are coming from, but you need to remember that there are varying degrees of risk associated with batterers. Whereas some men (sometimes women) are not at risk for being murdered when choosing to leave an abusive relationship, others are. It really depends on the psychopathology of the batterer.
      One must also consider the level of resiliency present in the battered spouse. Not all people are fortunate enough to possess the skills or support required to “walk away”. Yes there are shelters, but there is also life after shelter. If the estranged spouse is one who refuses to reconcile himself to the fact that the relationship is over, tragedy can and does occur.
      You are very fortunate, as are many other women who find the courage to leave an abusive relationship, and go on to live happy and abuse free lives. But, there remains those women (sometimes men) who are not fortunate enough to have lived with an abusive spouse who is willing to accept that the object of his control has said “not any more”.

      • Vicky says:

        Shoot, I reversed some roles, LOL
        …Some women (sometimes men) are not at risk for being murdered..
        women are by far more often the victim.

        • Lonnie Starr says:

          “Shoot, I reversed some roles, LOL …Some women (sometimes men) are not at risk for being murdered.. women are by far more often the victim.”

          Probably because men, most often have the strength to kill with just their bare hands, no weapon needed. While few women have the strength to resist a physical attack by a male. In fact, I’d be willing to venture a guess, that some paranoid males put on extra muscle at the gym, against the idea of being victimized.

          But what fragile ego could resist a partner of unequal strength? In women they find the ideal.

      • Lonnie Starr says:

        “But, there remains those women (sometimes men) who are not fortunate enough to have lived with an abusive spouse who is willing to accept that the object of his control has said “not any more”.”

        There are levels to abusers, some are merely emotionally out of control, they have little control of their emotions and such and go haywire because of certain circumstances, events or words etc.,
        otherwise they loving/caring.

        Then you have another type that considers the relationship to be a constant contest of wills. This type needs little provocation, but may not be so far gone as to reach for murder.

        And finally you have the complete mental cases who are pretty nearly always near the edge, as that is the centerpiece of their existence. Sadistic, psychopathic whatever, they consider any attempt to counter them, to be an affront.

        The problem is, these abusers already know the victims routines and proclivities, just as if they had maintained surveillance over time. So they already know the best places and times to fashion an encounter when they’ll have the best chance at control.

        To a victim already frightened, to have to give up the very routines they’re clinging to for solace, is a thing beyond the pale. But none of this is taken into account with orders of protection and such. The abusers are left free to fashion whatever attacks they envision to be effective.

        The victim is usually without the resources to move away or even move freely and change their routines. So they are left feeling exposed.

        Now add in the psychological deficiencies and other short falls that came with the victim over the years, and you will, more often than not, have a victim unable to cope with the unknown world outside of the relationship. With little in the way of social/economic/survival skills, you’re looking at a victim who is trapped.

        Hey, it even happens to men who become trapped under abusive superiors at work they cannot afford to lose. They get into a job and get promotions they wouldn’t get based on their resumes, if they were to seek new employment. Then their superior is changed and they’re trapped and feel they have to make the best of it.

        It’s a very complicated mix, there is no “one size” solution. But the best approach at reducing the problem is to educate more people to recognize the signs before they get in, so they don’t have to fight their way out.

      • Malisha says:

        There’s another consideration, folks. A guy can batter his wife constantly and still be considered a perfectly good father. If the wife has kids, she will face a custody battle. A psycho-judge can consider her “vindictive” and “alienating” if she wants to keep the kids away from their good father. I have seen mothers lose not only custody of their kids but visitation, because on visits, they tell their moms about more abuse they have suffered (and she knows it is true because that’s exactly what she endured when she was with him) and when she complains, the court decides that she will NEVER stop bad-mouthing this great guy so she should never see or even speak with her kids again. Believe it or don’t believe it; I have seen it so many times I know it’s true. Also, shelters cannot always take kids with their mothers!

        The DOJ Office of Violence Against Women has finally realized that this is happening in every courthouse in the country; they hold conferences about it. Fat lot of good THAT does. I know a young man who was placed in his father’s custody and deprived of his mother for years because of this situation, and he eventually physically fought his father (in self-defense, obviously) so violently that the court HAD to take him away, but still wouldn’t let him return to his mother (because she was said to have “lied”) so he went to live with relatives. He has gone on record saying his mother should have KILLED his father so he would not have had to tolerate the abuse. He said, “She would only have gotten a few years in prison; I had to deal with a lot worse than that!”

    • Lonnie Starr says:

      Only after adjusting for the wide variety of differences, in the various capacities of the victims, would I be in complete agreement.

      Obviously what is needed is better thought out approaches and laws, that more precisely target the offenses we learn to expect from observations. But that assumes there would be no attempts at using contrivance to achieve, what would otherwise be illegal.

      That said, the time to make an impact on the problem, would be to educate potential victims, BEFORE, they get involved in abusive relationships. Teaching people at an earlier age, what an abusive relationship is, how it develops and what to do about it, would go a long way towards empowering victims to action, before drastic measures become a necessity.

    • Lonnie Starr says:

      I can see your point, but it appears to be more emotionally driven than carefully parsed. Reaching for “blanket/one-size-fits-all” approaches, leaves those at the margins at increased risk. We have to remember that we as a people have a very unevenly distributed cache of abilities and skills.

  14. shannoninmiami says:

    i believe that restraining orders, as they are today, in domestic situations, act more as aggravators and irritants to the offender. So instead of protecting the victim the order often acts as a catalyst for the offender to attack *because* of the order, not deter them..

    • Rachael says:

      I agree, BTDT

    • Lonnie Starr says:

      Yes, that’s exactly the impression I get from the news stories I’ve read, “official intervention ->provocation -> homicide”. As Professor points out, legislation is not likely to strengthen the rights to self defend under orders of protection, anytime soon. But, not just because they’re mostly men, I’ve also noted that women won’t/don’t resort to “Robert Moses” type subterfuge. (Remembering how RM created his own Triborough Bridge And Tunnel Authority Police Force, using a little understood word, buried deep in a bill he contrived and advocated.

      (As an aside, I don’t know why the legislators didn’t reverse, since this bit of trickery says that legislators operate by rote, rather than by careful considerations).

  15. Xena says:

    Professor. Thank you for addressing the Imminent Danger Doctrine. Does this include a reasonable belief that the person who threatened has the means and ability to carry out the threat?

  16. Dave says:

    In this case, Mr. Avery could properly have been regarded as a burglar, i.e. he had illegally and without the permission of Mrs. Avery broken and entered her home for the purpose of committing a crime (violating the restraining order at the very least). That, combined with a long history of violent attacks upon her by the “victim” using deadly weapons would have put her in reasonable fear of imminent death or bodily harm (even if we ignore the alleged verbal threat).

    Was there any way for her to avoid death or injury other than by killing Mr. Avery?

    Apparently there was no way that she could either summon aid or escape from the house without alerting Mr. Avery who could reasonably be expected to respond violently. Still, there was no legal obligation to retreat, particularly from her own home.

    Theoretically she could have ordered him out at gunpoint. Was she mentally able to pull that off, though? I doubt it. If she had started on that course her nerve would likely have failed leaving her at the mercy of an enraged (and armed) Mr. Avery.

    I believe that she only had two realistic choices: stoically wait for Mr. Avery to break down the bedroom door and kill her or waste the son of a bitch. She chose wisely.

    • Lonnie Starr says:

      Yes, there’s another component to this idea of self defense, where an untrained woman, who had never harmed anyone before, would have a hard time do so when facing an animated “superior”. Nor, would we expect that animated superior, to act in an aggressive manner and give cause, while being held in check at gunpoint. So, if she’s going to defend herself effectively, she has little to no choice but to do so while he’s not awake.

      Don’t expect such violent husbands not to feel deeply wounded by court/police intervention. Look at Jobrey Dahmer, who killed just because he feared his victims would leave him. Violent spouses don’t brook passing any power to their victims and take that as an affront that must be punished. The papers are full of such fare.
      While their victims are held in check by various civil impulses, their aggressor is free to act and escalate.

  17. Lonnie Starr says:

    One “bright line” I see, that almost jumps off the page, if statistics are any guide. That is, usually if a woman gets a restraining order against a husband who has been physically abusive over time, she is extremely likely to be in imminent danger of being killed, by a spouse who ignores the order. So, perhaps they might consider a restraining order as a defense, when a woman is put in fear by a spouse who is violating it. After all there is no “emergency” purpose for such a violation that will not be clear and convincing. Otherwise there is no purpose for any violation at all, since the courts are always open to make arrangements and accommodations to retrieve property, as papers, tools, clothes etc., needed for work and such.

    Just something to think about.

    • fauxmccoy says:

      interesting thought, lonnie. as one who was a child of an abusive relationship which eventually ended by the sheriff’s rescuing the family from my gun wielding father experiencing severe psychosis and who went on to volunteer then work as a counselor/advocate of my local battered women’s shelter i can see the restraining order as the first line of defense.

      sadly, in my experience with pathetic law enforcement agencies, i see that order as being worth only the paper it is printed on. i have yet to experience one abuser who actually respects it and all too many LE officers who make light of violations of it. not once have i seen an abuser held to task for violating a restraining order. maybe it happens somewhere … i sure as hell hope so.

      • Lonnie Starr says:

        I’d think it high time that there were two classes of restraining orders in such cases, a class A one would convey with it a right to assume a violation is a death threat. As opposed a class B one that would issue, where there was only non violent argument over this or that and no threat or history of violence of any kind by either party.

        You might start send letters to the legislators.

        • I don’t think it’s likely that restraining orders will serve as presumptive licenses to kill. For one thing, male legislators will never pass a statute authorizing women to do that to their abusive husbands. There would still have to be a police investigation to determine if the killing was reasonable under the statute.

          Just in case anyone is wondering, I agree with the Allery decision.

          BTW, a little over 10 years ago, the police chief in Tacoma, WA killed his wife and committed suicide. Turned out he was a batterer and when she called 911, the police ignored her.

          Here’s another case that made the news when a Tennessee pastor was killed by his wife.

          • Lonnie Starr says:

            “I don’t think it’s likely that restraining orders will serve as presumptive licenses to kill. For one thing, male legislators will never pass a statute authorizing women to do that to their abusive husbands. There would still have to be a police investigation to determine if the killing was reasonable under the statute.”

            I hear what you are saying, I know you are right. It just seems horribly deficient that, women have to absorb and survive a history/series of life threatening attacks before obtaining the right to act on their own behalves.

            I’m thinking that a better solution would be to give more rights, coupled with the certain knowledge that judicial review will be needed to pass on what transpired. If that’s workable at all.

  18. Brown says:

    Interesting post. Thanks again for all your hard work.

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