Law in Contemporary Society

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PaulinaSalmasSecondPaper 2 - 13 May 2010 - Main.JessicaHallett
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Imminence and Self-Defense

-- By PaulinaSalmas - 17 Apr 2010

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 -- By PaulinaSalmas - 17 Apr 2010
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(Jess Hallett rewrite May 12)

In some states, defendants accused of murder who seek a justification of self defense must be found to have acted in the face of imminent harm. This imminence requirement has sometimes precluded battered women who killed their sleeping abusers from raising the defense. For instance, in State v. Norman, 378 S.E.2d 8, the defendant’s husband had physically and verbally abused her throughout their 25-year marriage, forced her into prostitution, and on a night when paramedics came to her aid after a suicide attempt, insisted that they let her die. The court held that Ms. Norman, who shot her husband to death as he slept, was not entitled to a jury instruction of self-defense. Concerned that a contrary holding would encourage self-help among battered women, the court stated that permitting the jury instruction would “legalize the opportune killing of abusive husbands” based on “subjective speculation as to the probability of future felonious assaults.”

In “Defending Imminence,” 46 Ariz. L. Rev. 213, Kimberly Ferzan argues that relaxing the imminence requirement to excuse or justify Norman-esque killings would encourage behavior that is less self-defensive than “self-preferential.” According to Ferzan, a self-preferential killing is one in response to “inchoate and potential threats,” which, though lacking immediate or overt violence, nevertheless indicate mortal danger. Consider two people trapped in a cave. May one kill the other in order to conserve oxygen? No, Ferzan concludes: self-defense should not be defined so broadly, and relaxing the imminence standard could extend the defense where it is not appropriate to do so. A case like that of Dudley and Stephens is another example of self-preference: killing in the face of impending, but not immediately imminent threat of death. Ferzan supports the imminence doctrine because it forecloses the possibility of self-defense in cases where murders are committed, not to stave off an impending attack, but to preempt an inferred one. In reaching this conclusion, however, Ferzan too narrowly construes notions of self defense, removing the possibility of such a justification for people like Ms. Norman.

 
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Egalitarian impulses are at the heart of this distinction between self-preference and self-defense. The conclusion that one death is more desirable than two is easy to reach, but which spelunker should be sacrificed for the life of the other? Should the preference belong to the youngest, the healthiest, the breadwinners, or those who haven’t drunk the seawater? It is difficult to square egalitarianism with a seemingly arbitrary result of one person alive and one person dead, but ultimately, if both have the option and potentiality of killing, perhaps arbitrariness is egalitarian. In instances of real danger, further, people typically do not rationally consider equality and noble sacrifice, and often act out of genuine human necessity. While recognizing a moral imperative to sacrifice one’s own life, for instance, the Dudley and Stephens court noted that “we are often compelled to set up standards we cannot reach ourselves.” Fear and desperation make the noble egalitarian ideal of self-sacrifice impractical and implausible.
 
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Criminal defendants accused of murder that seek to invoke the defense of necessity must demonstrate that they acted under the risk of imminent harm. This imminence doctrine has, in some states, precluded battered women who killed their sleeping abusers from raising a necessity defense. For instance, in State v. Norman, 378 S.E.2d 8, the court held that the defendant, who had killed her husband as he slept, was not entitled to a jury instruction on self-defense. Concerned that a contrary holding would encourage self-help among battered women, the court stated that allowing the jury instruction would “legalize the opportune killing of abusive husbands” based on “subjective speculation as to the probability of future felonious assaults.” The defendant’s husband had physically abused and forced the defendant into prostitution throughout their 25-year marriage.
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However, even without discounting a general distinction between killing in self defense and killing preemptively or retroactively, the trouble with attempting to justify the imminence requirement in a case like Norman is one that arises when there is no actual physical imminence of deadly force by a sleeping aggressor, but nonetheless actions by the defendant can be seen as self-defensive rather than self-preferential. Ms. Norman had been denied help from the police, was afraid to make formal accusations, had attempted suicide, and had even been prevented by her husband from signing up for welfare to avoid forced prostitution. Ultimately, she may have seized upon what she – a severely battered an traumatized woman who had tried and failed to escape her abuser’s escalating violence – saw as the only opportunity to save her life. It is difficult to see, where the defendant genuinely believes that she has no alternative, and that her husband will kill her when he wakes up, that such a situation belongs in the category of “self preference” rather than true self-defense.
 
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In “Defending Imminence,” 46 Ariz. L. Rev. 213, Kimberly Ferzan argues that relaxing the imminence requirement to excuse or justify Norman-esque killings would encourage behavior that is less self-defensive than “self-preferential.” According to Ferzan, a self-preferential killing is one in response to “inchoate and potential threats,” which, though lacking immediate or overt violence, nevertheless indicate mortal danger. For example, the defendants in The Queen v. Dudley & Stephens, 14 Q.B.D. 273, in cannibalizing a companion to avoid starving on the open sea, killed self-preferentially. Alternatively, consider, as Ferzan suggests, two people trapped in a cave. May one kill the other in order to conserve oxygen? No, she concludes: self-defense should not be defined so broadly. Ferzan supports the imminence doctrine, in part because it forecloses the possibility of self-defense in cases where murders are committed, not to stave off an impending attack, but to preempt an inferred one.
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Both Ferzan and the Norman court are reluctant to consider past abuse in determining whether the victim’s threats were imminent enough to justify self-defense, noting a distaste for citizen retributive measures of self-help. However, as much as a victim’s moral failures themselves may not excuse killing, abuse and history speak to the reasonableness of a victim’s belief in the immediate need for her actions, and the imminence of potential danger. An abuser, clearly unable to kill the defendant while asleep, nonetheless was a ticking time bomb: the rationale of the defendant’s belief is only evidenced by her past experiences and psychological state that was created out of the victim’s abuse.
 
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Egalitarian impulses are at the heart of this distinction between self-preference and self-defense. The conclusion that one death is more desirable than two is easy to arrive at, but which spelunker should be sacrificed for the life of the other? Should the preference belong to the youngest, the healthiest, the breadwinners, or those who haven’t drunk the seawater? If principles of bodily autonomy preclude such life-maximizing measures as forced organ donation, surely a person has a human right to choose to remain alive and slowly suck her share of oxygen from the cavern.
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Certainly, there are differences between cases of necessity and those of self-defense. With necessity, we make a choice of a lesser evil – as such, we may understand why Dudley and Stephens killed aboard the Mignonette, or why a spelunker kills his partner in a cave lacking oxygen. Killing an innocent is quite different from killing the person who is attempting to save your life. However, it is possible to compare the sense of understanding we feel about such cases of necessity – even if they embody more ‘self preference’ and less ‘self defense’ – to those in which a person kills an aggressor to save his life. Underlying these cases is a sense that a killing, at least from the perspective of the defendant, was absolutely necessary, whether to prevent greater evil that included his own death, or to prevent his death at another’s hands. In such cases, what deterrent effect is there in punishing the taking of a life? Courts like that in Norman place undue emphasis on imminence of attack, and negate the purposes of the self-defense doctrine. Instead, an approach more akin to the MPC model, which focuses on the immediate necessity of the defendant’s action, is one that is more appropriate and leaves more room for judicial empathy.
 
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Of course, the answer to this abstract moral problem may seem more obvious if we ourselves were the individuals trapped in the cave or adrift in the dinghy. Though the court in Dudley & Stephens stated that “it may be the plainest and the highest duty to sacrifice [one’s life],” it also noted that “we are often compelled to set up standards we cannot reach ourselves.” It seems impossible to predict how any given person might act in similar situations. While a noble reaction is ideal, it seems plausible that fear and desperation could cause some to become violent. In general, convicting for lives taken during dire situations might serve very little deterrent effect. Indeed, Judy Norman, at trial, testified, “I just couldn’t take it no more…even if it means going to prison. It’s better than living in that.”
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Hi Paulina. Please find my re-write above. A few notes about some of the changes I made.
 
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Both the court and Ferzan were reluctant to consider past abuses in determining whether the victim’s threats were imminent enough to justify self-defense. Ferzan noted that a battered woman’s motives must be preventative and not retributive, because “citizens may not punish.” However, the existence of past abuse might serve as evidence indicating that future abuse will likely follow, and therefore that self-defense should be justified. Furthermore, while a man’s violence should not give his wife carte blanche to dispose of him how she pleases, it is unrealistic to insist that an abusive husband is on equal moral ground with an innocent spelunker or defenseless Richard Parker. Determining who should be sacrificed on the basis of age or number of defendants produces arbitrary results, and the killing must be justified on grounds other than choice of victim. However, sacrificing the person who has created and is prolonging the emergency is more rational. For instance, it would be more acceptable to kill a spelunker that intentionally barricaded the cave and actively depleted its air supply. If this situation is less self-preservation than self-defense, then so too is that of a woman whose husband has trapped her in a relationship with the continuing threat of violence.
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- In some places, you had written about the “necessity” doctrine when you meant to write about self defense, and in others you introduced ideas that did sound more like necessity defenses, so I tried to separate self defense from necessity, but still include a bit about how necessity cases might relate to self defense.
 
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The Norman court, though detailing the various abuses that Norman suffered during her 25-year marriage in a brief and dispassionate list, described the killing itself in detail. First, Norman’s pistol jammed. After fixing it, she shot her husband in the head; on determining that he was still breathing, she shot him twice more. The court implicitly suggests that the time taken to shoot the defendant implies a lack of imminent threat. Indeed, in some jurisdictions, if, during a fight, one participant overcomes and subsequently shoots the other, premeditation may be established by a pause of only seconds. Premeditated murder is punished more harshly than killings conducted in the heat of the moment, and shades of premeditation might make some necessity cases less palatable than others. I’m not an expert on the logistics of being trapped in a cave, but it appears that murder in this scenario requires more premeditation than the situations in Norman or Dudley & Stephens. To fully take advantage of a larger air supply, one occupant must kill the other as soon as possible, whereas the yachting crew was reportedly able to fast until Richard Parker appeared to be dying of natural causes. From one perspective, Judy Norman endured decades of abuse before killing her husband; from another, she coldly noted an opportunity to rid herself of her husband and took advantage of it. She did not interpret her jammed gun as a serendipitous hint that she should be merciful; she fixed it and shot her husband dead.
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- I disagreed with your argument about how Ms. Norman’s husband’s own culpability made her actions more defensible, because of their immorality. Instead, I tried to focus on what his actions meant for her and how she perceived the danger he posed.
 
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This perhaps makes some uncomfortable excusing the killing. In attempting to narrow self-defense doctrines, some courts have created a rule that rests on stigma and fastidiousness instead of empathy.
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- Funnily enough, my paper was on this same topic. I’m interested to see what my editor says, because I’ve been re-thinking some of the ideas. I think it’s a really interesting topic and find it ridiculous that in some states the fact that the victim was sleeping can categorically preclude a self-defense claim. I do think that imminence is an important requirement- but the way the word seems to be defined, to me, is far too narrow. Anyway, I liked reading your paper and liked the references to Dudley & Stephens and the cave cases. I still edited out a lot of that because of space, but would like to see how that could be re-worked in in a bit more streamlined way.
 
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- I realize I made a lot of changes, so if this has strayed too far from your original work, feel free to let me know and I can make further changes that might be more in keeping with what you intended. If you do more work on this paper in response to my changes, I’ll check back in. Good luck! Jess.
 
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-- JessicaHallett - 13 May 2010
 

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PaulinaSalmasSecondPaper 1 - 17 Apr 2010 - Main.PaulinaSalmas
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Imminence and Self-Defense

-- By PaulinaSalmas - 17 Apr 2010

Criminal defendants accused of murder that seek to invoke the defense of necessity must demonstrate that they acted under the risk of imminent harm. This imminence doctrine has, in some states, precluded battered women who killed their sleeping abusers from raising a necessity defense. For instance, in State v. Norman, 378 S.E.2d 8, the court held that the defendant, who had killed her husband as he slept, was not entitled to a jury instruction on self-defense. Concerned that a contrary holding would encourage self-help among battered women, the court stated that allowing the jury instruction would “legalize the opportune killing of abusive husbands” based on “subjective speculation as to the probability of future felonious assaults.” The defendant’s husband had physically abused and forced the defendant into prostitution throughout their 25-year marriage.

In “Defending Imminence,” 46 Ariz. L. Rev. 213, Kimberly Ferzan argues that relaxing the imminence requirement to excuse or justify Norman-esque killings would encourage behavior that is less self-defensive than “self-preferential.” According to Ferzan, a self-preferential killing is one in response to “inchoate and potential threats,” which, though lacking immediate or overt violence, nevertheless indicate mortal danger. For example, the defendants in The Queen v. Dudley & Stephens, 14 Q.B.D. 273, in cannibalizing a companion to avoid starving on the open sea, killed self-preferentially. Alternatively, consider, as Ferzan suggests, two people trapped in a cave. May one kill the other in order to conserve oxygen? No, she concludes: self-defense should not be defined so broadly. Ferzan supports the imminence doctrine, in part because it forecloses the possibility of self-defense in cases where murders are committed, not to stave off an impending attack, but to preempt an inferred one.

Egalitarian impulses are at the heart of this distinction between self-preference and self-defense. The conclusion that one death is more desirable than two is easy to arrive at, but which spelunker should be sacrificed for the life of the other? Should the preference belong to the youngest, the healthiest, the breadwinners, or those who haven’t drunk the seawater? If principles of bodily autonomy preclude such life-maximizing measures as forced organ donation, surely a person has a human right to choose to remain alive and slowly suck her share of oxygen from the cavern.

Of course, the answer to this abstract moral problem may seem more obvious if we ourselves were the individuals trapped in the cave or adrift in the dinghy. Though the court in Dudley & Stephens stated that “it may be the plainest and the highest duty to sacrifice [one’s life],” it also noted that “we are often compelled to set up standards we cannot reach ourselves.” It seems impossible to predict how any given person might act in similar situations. While a noble reaction is ideal, it seems plausible that fear and desperation could cause some to become violent. In general, convicting for lives taken during dire situations might serve very little deterrent effect. Indeed, Judy Norman, at trial, testified, “I just couldn’t take it no more…even if it means going to prison. It’s better than living in that.”

Both the court and Ferzan were reluctant to consider past abuses in determining whether the victim’s threats were imminent enough to justify self-defense. Ferzan noted that a battered woman’s motives must be preventative and not retributive, because “citizens may not punish.” However, the existence of past abuse might serve as evidence indicating that future abuse will likely follow, and therefore that self-defense should be justified. Furthermore, while a man’s violence should not give his wife carte blanche to dispose of him how she pleases, it is unrealistic to insist that an abusive husband is on equal moral ground with an innocent spelunker or defenseless Richard Parker. Determining who should be sacrificed on the basis of age or number of defendants produces arbitrary results, and the killing must be justified on grounds other than choice of victim. However, sacrificing the person who has created and is prolonging the emergency is more rational. For instance, it would be more acceptable to kill a spelunker that intentionally barricaded the cave and actively depleted its air supply. If this situation is less self-preservation than self-defense, then so too is that of a woman whose husband has trapped her in a relationship with the continuing threat of violence.

The Norman court, though detailing the various abuses that Norman suffered during her 25-year marriage in a brief and dispassionate list, described the killing itself in detail. First, Norman’s pistol jammed. After fixing it, she shot her husband in the head; on determining that he was still breathing, she shot him twice more. The court implicitly suggests that the time taken to shoot the defendant implies a lack of imminent threat. Indeed, in some jurisdictions, if, during a fight, one participant overcomes and subsequently shoots the other, premeditation may be established by a pause of only seconds. Premeditated murder is punished more harshly than killings conducted in the heat of the moment, and shades of premeditation might make some necessity cases less palatable than others. I’m not an expert on the logistics of being trapped in a cave, but it appears that murder in this scenario requires more premeditation than the situations in Norman or Dudley & Stephens. To fully take advantage of a larger air supply, one occupant must kill the other as soon as possible, whereas the yachting crew was reportedly able to fast until Richard Parker appeared to be dying of natural causes. From one perspective, Judy Norman endured decades of abuse before killing her husband; from another, she coldly noted an opportunity to rid herself of her husband and took advantage of it. She did not interpret her jammed gun as a serendipitous hint that she should be merciful; she fixed it and shot her husband dead.

This perhaps makes some uncomfortable excusing the killing. In attempting to narrow self-defense doctrines, some courts have created a rule that rests on stigma and fastidiousness instead of empathy.

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