In its recent opinion in Jefferson v. Kernan, the United States District Court for the Eastern District of California referenced the opinion of the California Supreme Court in People v. Humphrey, 921 P.2d 1 (Cal. 1996). In Humphrey, a wife appealed from her voluntary manslaughter conviction based upon the shooting death of her husband. That conviction came after the jury partially rejected her self-defense defense. It also came after the judge instructed the jury, inter alia, that
Evidence regarding Battered Woman’s Syndrome has been introduced in this case. Such evidence, if believed, may be considered by you only for the purpose of determining whether or not the defendant held the necessary subjective honest [belief] which is a requirement for both perfect and imperfect self-defense. However, that same evidence regarding Battered Woman’s Syndrome may not be considered or used by you in evaluating the objective reasonableness requirement for perfect self-defense.
The California Supremes thereafter reversed, finding, inter alia, “that evidence of battered woman’s syndrome is generally relevant to the reasonableness, as well as the subjective existence, of defendant’s belief in the need to defend, and, to the extent it is relevant, the jury may consider it in deciding both questions.” The court, however, was quick to point out that
we are not changing the standard from objective to subjective, or replacing the reasonable “person” standard with a reasonable “battered woman” standard. Our decision would not, in another context, compel adoption of a “‘reasonable gang member’ standard.” Evidence Code Section 1107 states “a rule of evidence only” and makes “no substantive change.”…The jury must consider defendant’s situation and knowledge, which makes the evidence relevant, but the ultimate question is whether a reasonable person, not a reasonable battered woman, would believe in the need to kill to prevent imminent harm.
California state and federal courts have often repeated this language, and the Eastern District of California followed suit in Jefferson v. Kernan. But do these opinions make sense?
In many areas of law, jurors were, and still are, asked, to consider what the “reasonable man” would have, or should have, done in a given situation. For instance, in deciding whether a defendant acted negligently, jurors often must decide how a reasonable man would have acted under like circumstances. Over time, some courts started to realize the problem with a reasonable man standard and began creating the reasonable person standard.
Thereafter, in certain areas of law, some courts found that even this gender-neutral standard was not helpful and thus created the reasonable woman standard. The classic case is the sexual discrimination case, and the Ninth Circuit‘s opinion in Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), is representative. There, the court stated,
We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men….Instead, a gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men. By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to “run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.”
Subsequently, as the opinion of the Supreme Court of Ohio in State v. Thomas, 673 N.E.2d 1339 (Ohio 1997), makes clear (with a string cite), courts “in a number of states” began applying a “reasonable battered woman standard” in criminal cases where women charged with assaulting their husbands/boyfriends claimed self-defense. Under this standard,
the jury first must consider the defendant’s situation objectively, that is, whether, considering all of the defendant’s particular characteristics, knowledge, or lack of knowledge, circumstances, history, and conditions at the time of the attack, she reasonably believed she was in imminent danger….Then, if the objective standard is met, the jury must determine if, subjectively, this particular defendant had an honest belief that she was in imminent danger.
In State v. Edwards, 60 S.W.3d 602 (Mo.App. W.D. 2001), the Missouri Court of Apppeals noted both the oddness and the appropriateness of this standard when it held that
it is not completely accurate to say that the conduct should be evaluated as a reasonable battered woman would have perceived it. This language seems to be something of an oxymoron. As noted, supra, battered spouse syndrome is a medically recognized condition with certain identifiable characteristics and arising from a specific source….A battered woman is a terror-stricken person whose mental state is distorted….Thus, a more accurate statement of the law is that, if the jury believes the defendant was suffering from battered spouse syndrome, it must weigh the evidence in light of how an otherwise reasonable person who is suffering from battered spouse syndrome would have perceived and reacted in view of the prolonged history of physical abuse.
But, as noted above, California courts have refused to adopt a reasonable battered woman standard in self-defense cases. Or, at least, they refuse to label the test that they apply a reasonable battered woman standard, even if it is arguable that the standard they apply is not (that) different from the standards articulated in Thomas and Edwards.
But assuming that the California standard is different from the reasonable battered woman standard, it seems to me that the difference is based upon an objectionable and offensive straw man: the reasonable gang member standard. If the court in Humphrey wanted to make clear why it was rejecting the reasonable battered woman standard, it should have done so with sound analysis. It should not have analogized a battered woman to a gang member.
Beyond the obvious important differences between a battered woman and a gang member, the comparison makes no legal sense as is made clear by the opinion of the Court of Appeal, Fifth District, California, in People v. Romero, 69 Cal.App.4th 846 (Cal.App. 5 Dist. 1999). There, a Hispanic street fighter charged with murder claimed third party self-defense in that he was protecting his brother from the victim. In support of this defense, he sought to have a professor
testify that (1) street fighters have a special understanding of what is expected of them; (2) for a street fighter in the Hispanic culture, there is no retreat; (3) the Hispanic culture is based on honor, and honor defines a person; and (4) in this culture a person “would be responsible to take care of someone,” i.e., defendant had a strong motivation to protect his younger brother. Stated differently, “He’s the eldest male. He would assume a paternalistic role whether he wanted to or not. Something is expected of him.”
The trial court precluded this testimony, and the appellate court agreed, citing Humphrey‘s “reasonable gang member” language and concluding that
Given the law, we conclude the testimony of Professor Jankowski was irrelevant to whether defendant actually believed he was in imminent danger of death or great bodily injury, and whether such a belief was objectively reasonable. We are unsure what defendant means by his reference to the sociology of poverty, and how it might affect his actual beliefs and the objective reasonableness of those beliefs. Similarly, even if we assume street fighters have a special understanding of what is expected of them, and that this is something with which the jurors are not acquainted, why is it relevant? Are street fighters expected to kill every person they fight with, regardless of the circumstances? If so, does this expectation replace or relax the legal requirement that before deadly force may be used a person must actually fear imminent death or great bodily injury?
The same seems to me to apply to gang members charged with crimes. The code of a gang member or street fighter might tell him to respond to an act with (fatal) violence when the otherwise “reasonable person” would not have, but this tell us nothing about whether he did or should have believed that he was imminent danger. Conversely, Battered Woman’s Syndrome tells us that someone suffering from BWS actually experiences the world differently than other “reasonable people” and could (subjectively) understandably (objectively) believe that she was in imminent danger in a way that the average juror might not understand.
It thus seems to me that California courts should adopt the reasonable battered woman standard or that, at a minimum, they should come up with a different rationale for rejecting it than the “reasonable gang member” straw man. And California courts should certainly not continue to explain their decisions by including this flawed analogy in its opinions as the court did in Kernan.
-Colin Miller
Wow. Thanks for another fantastic post.