A significant number of women who are incarcerated in American prisons for homicide offenses have been subjected to various forms of domestic abuse, including physical, sexual, and psychological abuse. This Article coins the term “survival homicide” to refer to cases where survivors of substantial and repeated domestic abuse kill abusive intimate partners or other abusive family members in circumstances where the abuse significantly contributed to their act. Abuse survivors are often prosecuted for murder and are over-punished by the criminal legal system.
Existing legal frameworks underlying survival homicide rest on exercising considerable discretion by various institutional actors, including prosecutors, juries, and sentencing judges, resulting in inconsistent outcomes. Since the law does not recognize a separate defense to mitigate survival homicide defendants’ criminal responsibility, they can only raise general self-defense claims. Yet, domestic abuse survivors often fail to prevail on self-defense grounds when the deceased did not pose an imminent threat of deadly force at the time of the killing. Existing sentencing mitigation models provide only a partial solution to survival homicide defendants. While judges have the discretion to consider past abuse as a mitigating factor at the penalty phase, survivors’ sentences are not only excessive and unduly harsh, but also carry a host of collateral consequences.
This Article’s main thesis is that survival homicide should be treated under a mitigated criminal responsibility model instead of existing sentencing mitigation models. Its argument is twofold: First, it posits that domestic abuse survivors’ criminal responsibility should be relative and shared with states’ responsibility for failing to take adequate measures to prevent domestic abuse and support survivors. Second, it argues that survivors’ culpability is lower when they kill abusive family members out of fear and survival motives and therefore their criminal responsibility should be mitigated. To reflect survivors’ comparative responsibility, this Article proposes that state legislatures pass a designated homicide offense, titled “survival homicide,” for prosecuting domestic abuse survivors. Survival homicide would be graded lower than manslaughter, carry a non-carceral penalty, and not trigger any collateral consequences.
This Article makes three contributions to the literature. First, it decouples the law’s treatment of survival homicide from self-defense’s restrictive elements. A specialized offense for survival homicide shifts away from problematic excusatory defenses toward a mitigated responsibility offense. Second, it challenges three of criminal law’s conventional wisdoms: that mitigating factors should not be considered at the guilt phase of the trial but be relegated to the penalty phase, that defendants’ motives do not affect their criminal responsibility, and that mercy has no role for determining criminal liability. Third, it opens the door toward using survival homicide as a case study for recognizing additional forms of prior abuse beyond the domestic setting that contribute to offending by revising definitions of other core crimes committed by abuse survivors.
Introduction
In September 2017, Nicole Addimando fatally shot Christopher Grover, her live-in boyfriend and the father of her two children.1 She was charged with second-degree murder under New York law. Addimando’s central defensive claim at her jury trial was that she had killed Grover in self-defense. She established, through lengthy testimony, photographs, and other evidence, that Grover repeatedly physically and sexually abused her, and her account was supported by several witnesses who testified at trial. But the jury was not persuaded that Addimando killed Grover in self-defense and in April 2019, they convicted her of second-degree murder.2
Before sentencing, Addimando’s defense counsel filed a motion that the trial court apply the Domestic Violence Survivors Justice Act (DVSJA), which the New York State Legislature had passed in 2019, giving sentencing judges the discretion to mitigate the sentences of domestic violence survivors who were convicted of a host of crimes.3 The statute requires proof, by a preponderance of the evidence, that the defendant was a victim of domestic violence at the time of the offense; that the abuse significantly contributed to the commission of the crime; and that “having regard for the nature and circumstances of the crime and the history, character and condition of the defendant,” a sentence in accordance with the customary statutory sentencing guidelines “would be unduly harsh.”4 The trial court refused to mitigate Addimando’s sentence based on the statute and sentenced her to “an indeterminate term of imprisonment of 19 years to life.”5 But the appellate court held that the trial court abused its discretion and reduced Addimando’s sentence to a “determinate term of imprisonment of 7½ years to be followed by 5 years of postrelease supervision.”6
While the DVSJA sometimes results in more lenient sentences in individual cases, arguably, the sentencing mitigation framework that underlies the statute does not offer an adequate legal response to the problem of domestic abuse survivors who kill intimate partners or other abusive family members following substantial cumulative abuse. This is because even when survivors’ sentences are mitigated, their murder or manslaughter convictions—and the ample collateral consequences that are triggered by such convictions—remain intact.7
Addimando’s story—as well as similar stories of other domestic abuse survivors—challenges existing conceptual frameworks that treat defendants who killed abusive intimate partners or other abusive family members, where their self-defense claims have been rejected, as “murderers.” Societal pronouncement of domestic abuse survivors who committed survival acts as “murderers,” a label that carries moral condemnation and stigma, poignantly illustrates the criminal legal system’s unfair treatment of these defendants, because the very nature of a murder conviction in these circumstances is inherently unjust.
This Article coins the term “survival homicide” to refer to cases where survivors of domestic abuse become criminal defendants after killing abusive intimate partners or abusive family members, such as children killing abusive parents or other abusive people who live with them in the same household, even when they are not related by blood, marriage, or adoption.8 While most survival homicide cases involve women who killed abusive male partners, men, transgender people, and non-binary people may also fall prey to domestic abuse, either at the hands of intimate partners or other members of their household.9 This Article’s analysis of the survival homicide phenomenon encompasses all domestic abuse survivors regardless of their gender, making the proposed designated offense to prosecute survivors of domestic abuse a gender-neutral one.
While the rate of survival homicide has declined in the past thirty years10 as a result of greater availability of shelters and other support services for domestic abuse survivors,11 it remains a disconcerting problem.12 Research shows that the majority of incarcerated women have experienced some form of abuse throughout their lives.13 Likewise, abuse experiences from childhood, adolescence, and adulthood are correlates of women’s perpetration of violence against intimate partners.14 Further, among women who were convicted of homicide crimes, many have killed intimate partners who subjected them to physical, sexual, and psychological abuse.15
Survivors who killed abusive family members are therefore not merely perpetrators of homicide but also victims who have been subjected to substantial, cumulative domestic abuse.16 This abuse significantly contributed to their acts because of their fear that the deceased would kill them, and thus the killing was necessary for survival.17 In these circumstances, neither murder nor manslaughter convictions are warranted. Yet existing laws fail to recognize survival homicide as a basis for mitigating abuse survivors’ criminal responsibility when their acts fall short of self-defense.
Current legal framework underlying survival homicide consists of three stages: first, prosecutors charge defendants with murder; second, defendants introduce evidence that they acted in self-defense or that their actions were partially excused; and third, if the jury rejects their defensive claims, judges decide whether and to what extent sentencing mitigation is warranted.18 Previous reform efforts primarily focused on the two latter stages, proposing to amend self-defense statutes to accommodate the lived experiences of domestic abuse survivors and mitigate sentences of convicted survivors whose self-defense claims have been rejected.19
Both excusatory defenses and sentencing mitigation, however, suffer from significant shortcomings. Since no American jurisdiction designates a specialized defense for survival homicide, defendants bear the burden to produce evidence that they acted defensively under general self-defense statutes.20 Establishing self-defense’s elements in survival homicide cases, however, is notoriously difficult and often fails due to the requirement that the abused defendant faced imminent threats by the deceased to use lethal violence at the time of the crime.21
While sentencing mitigation provisions sometimes reduce the punishment of survival homicide defendants, sentencing mitigation models, including the DVSJA, have their own drawbacks, thus offering an insufficient response to survival homicide and leaving intact the inequitable treatment of domestic abuse survivors. These models provide sentencing judges with ample discretion regarding whether and to what extent to take into account the mitigating factors related to past abuse. Since there is no agreement on the weight that should be given to these mitigating factors, outcomes are inconsistent and often unpredictable.22
Taken together, existing frameworks fail to provide justice to domestic abuse survivors because of the enormous amount of largely unstructured discretion that different institutional actors exercise at the various stages of the criminal process. It ranges from prosecutorial discretion to trial courts’ discretion regarding what testimonies can be introduced at trial to juries’ discretion regarding whether to accept the defendant’s self-defense account, culminating in sentencing judges’ discretion regarding whether the defendant’s sentence warrants mitigation.23
To address these drawbacks, this Article calls for shifting the reform focus away from excusatory defenses and sentencing mitigation toward a specialized offense. In contrast with previous proposals, this Article tackles prosecutors’ preliminary choice to bring murder charges against survival homicide defendants by proposing the adoption of a separate criminal offense titled “survival homicide.”
This Article’s main thesis is that survival homicide should be treated under a mitigated responsibility framework instead of a sentencing mitigation model. Its argument is twofold: First, it posits that survivors’ criminal responsibility should be relative or comparative to states’ co-responsibility because survivors share at least some of the blame with the states that failed to provide them with safe living conditions.24 The shared responsibility model acknowledges that survival homicide is far from being only a problem of individual survivors’ culpability. Instead, this model draws on the idea that because domestic abuse is a broader societal, economic, and public health problem,25 states have a duty to domestic abuse survivors to ensure that they are able to live dignified lives free of violence.26 While in recent years states have vigorously relied on criminal law to punish batterers, they still fall short both in preventing domestic abuse as well as providing survivors who wish to end abusive relationships with adequate support that would allow them to become economically independent.27
In order to bring to bear its own failures in supporting domestic abuse survivors, states should embrace a criminal responsibility model that takes into account the background conditions underlying survivors’ lives. This Article urges state legislatures to carve out a sui generis response to address the distinct problem of survival homicide by passing laws that craft a separate homicide offense specifically designated for prosecuting survivors who killed domestic abusers.
This Article’s second key argument is that survivors’ culpability is lower when they kill abusive family members out of fear for their lives and motivation for survival. Recognizing the effects of these motives should lead to mitigating survivors’ criminal responsibility. A mitigated responsibility model for defendants in survival homicide cases incorporates a host of factors—currently relevant only at the sentencing phase of the trial—into the framework for determining criminal responsibility itself.28
This Article makes three contributions to the literature. First, it disentangles the law’s treatment of survival homicide from self-defense’s elements. The mitigated criminal responsibility model shifts away from existing general defenses toward a designated offense that conceptualizes survival homicide under a sui generis framework.
Second, this Article challenges three of criminal law’s conventional wisdoms: that mitigating factors should not be considered at the guilt phase of the trial and instead be relegated to the penalty phase, that defendants’ motives do not and should not affect criminal responsibility itself, and that mercy has no role in determining criminal responsibility and may only be considered at sentencing. Instead, this Article argues that mitigating factors as well as defendants’ motives should reduce defendants’ criminal responsibility, and that mercy ought to play a more prominent role in shaping the scope of abuse survivors’ criminal responsibility.
Third, this Article contributes to the debate among criminal law scholars about the shape and scope of criminal justice reform. At the heart of this debate stands the choice between the non-reformist (or abolitionist) approach—requiring deep transformation of the criminal legal system by discarding criminal institutions altogether—and the reformist approach—reforming the system from within, without completely abandoning criminal frameworks.29 Siding with the reformist approach, this Article favors comprehensive changes in the definition and grading of core crimes like homicide. A survival homicide offense corresponds to a broader need to overhaul the overly harsh legal treatment of violent crimes in general, and homicide crimes in particular. While this Article focuses on survival homicide, it serves as a case study for recognizing variable levels of criminal responsibility in other areas too, where other forms of abuse, over and above the domestic context, contribute to offending. Adopting a survival homicide offense opens the door to considering broader legislative reforms that distinguish between actors based on their varying degrees of individual culpability.
At the outset, two preliminary clarifications are in order. First, the designated offense should not be construed in a way that undermines defendants’ chances of being fully acquitted on self-defense grounds. Instead, the proposal aims to change the baseline offense with which prosecutors could charge domestic abuse survivors, from murder or manslaughter to survival homicide. Its goal is to provide a basis for mitigating abuse survivors’ criminal responsibility in cases where establishing self-defense claims is unlikely. The specialized offense, however, should be viewed as additive and supplementing rather than detracting from defendants’ self-defense claims.
Second, the scope of this Article is limited to domestic abuse survivors who kill abusive intimate partners or other abusive family members. Nonetheless, domestic abuse survivors may commit a host of other crimes where abuse significantly contributed to their offending.30 For example, domestic abuse survivors often become involved in the criminal legal system after committing crimes against third parties at the direction of their abusive partners, ranging from felony murder to an array of offenses other than homicide, like robberies and drug offenses.31 Furthermore, abuse survivors who become involved in the criminal legal system include not only those who live in abusive households at the time of the crime but also additional groups of people who have been abused in non-domestic settings, such as men who have endured coercive pressures to commit crimes by other men higher up in the street hierarchy or criminal organization, people who have been abused in childhood, and people who grew up in impoverished conditions.32 Criminal law’s binary categorization of those involved in the criminal legal system as either “offenders” who are perceived as blameworthy or “victims” who are perceived as blameless is inherently flawed because reality is more nuanced than this binary account, and offenders are often themselves victims.33 Indeed, the scope of the survivor-turned-criminal-defendant phenomenon exceeds the domestic abuse context. Offenders’ underlying conditions, like past childhood traumas and the street abuse pervasive in inner-city neighborhoods, are often associated with crime perpetration34—a phenomenon documented in the literature and often referred to as the “abuse to prison pipeline.”35 The proposed statute for which this Article advocates explicitly acknowledges survivors’ dual status as both perpetrators and victims of crime as a basis for mitigating their criminal responsibility.36 Yet, in this Article, I choose to carve out a specialized criminal responsibility model that is applicable only to survivors who kill abusive family members.
Advocating for domestic abuse exceptionalism will likely generate ample pushback from various perspectives, which this Article will address throughout.37 But for now, suffice it to say that because survival homicide is a relational crime, where the abuse occurs between related persons living in the same household, it is qualitatively different than crimes occurring in other settings.38 Moreover, survival homicide presents a more urgent need for legislative reform, given mandatory minimum sentences that apply in many jurisdictions for murder convictions, as well as other uniquely harsh sentences that are imposed on defendants convicted of homicide offenses.39 Further, crafting a carefully circumscribed survival homicide statute is more politically feasible than proposing to adopt laws that broadly apply to all categories of abuse-survivors-turned-criminal-defendants. While this Article is sympathetic to similar reforms concerning other groups of abuse survivors, a proposal to amend only a limited category of cases will likely gain more political traction and bipartisan support than broader decriminalization and decarceration reform proposals.
This Article develops in three parts: Part I outlines the flaws in existing treatment of survival homicide by highlighting the vast discretion exercised by criminal law’s institutional actors. It demonstrates how both excusatory defenses and sentencing mitigation models fail to provide equitable treatment to survival homicide defendants. Part II argues that findings from social science literature on domestic battering and its effects support the adoption of an alternative model for survivors’ criminal responsibility. This model deemphasizes the prevailing behavioral-medicalized view of survival homicide defendants, emphasizing instead a social-ecological approach for addressing the problem. Part III begins by explaining why domestic abuse exceptionalism is warranted and continues by elaborating on the theoretical normative justifications underlying the mitigated criminal responsibility model for survival homicide. It then delves into the doctrinal implications of adopting a designated homicide offense to prosecute these cases.
I. Problems with Existing Legal Frameworks
Criminal law’s institutional actors, including prosecutors, juries, and sentencing judges, exercise an enormous amount of discretion that affects the outcomes of survival homicide cases.40 While discretion is not unique to survival homicide, it proves especially problematic for abuse survivors, given the high stakes of homicide convictions. Prosecutors’ standard practice is to bring murder charges against abuse survivors, which, in many jurisdictions, carry a mandatory minimum of life imprisonment.41 This prosecutorial practice persists despite the growing phenomenon of progressive prosecutors who subscribe to reformist policies and practices in their treatment of other crimes.42 Their reforms, however, stop short of homicide prosecutions.43
A. Self-Defense
When domestic abuse survivors are charged with murder and try to prove that they acted in self-defense, they carry the burden to present facts that could be found by a reasonable jury to constitute valid defensive force.44 Once the defendant has met the burden of production, the vast majority of state defensive-force statutes put the burden of proof on prosecutors to disprove at least one element of self-defense beyond a reasonable doubt.45 If prosecutors fail to prove this, defendants will be fully acquitted of any homicide.
Survival homicide defendants mostly fail to prevail on self-defense grounds if they killed at a moment when the deceased did not pose an imminent threat to kill them.46 Even in circumstances involving a pattern of past abuse, where the deceased had been repeatedly abusing the defendant, juries and judges often find the defendant’s use of force to be excessive and disproportional, thus precluding a right to self-defense.47 Moreover, to prevail on self-defense grounds, defendants must demonstrate that the deceased was on the brink of killing them at the moment they responded, as opposed to the deceased committing nonlethal acts of violence or threatening to inflict future harm.48
Ample literature critiques the inadequacy of restrictive self-defense statutes in survival homicide cases; commentators highlight the male-oriented nature of the defense and propose modifying it by relaxing its temporal and reasonableness elements to accommodate the distinct circumstances of survivors who kill abusive intimate partners.49 While no American jurisdiction has amended its self-defense laws by adopting a separate defense designed for survivors of domestic abuse, significant reforms have taken place regarding the type of evidence that could be introduced to buttress self-defense claims.50
Courts in past decades expanded the scope of expert opinion testimonies on domestic battering and its effects on survivors.51 Most courts now routinely allow expert witnesses to testify about battering’s impact on survivors and the typical dynamics of an abusive relationship to contextualize the circumstances underlying the survivors’ lived experiences.52 Courts recognize that such testimonies help juries understand the reasonableness of survivors’ apprehension of harm and explain their perception regarding the necessity of using deadly force.53
But the judicial practice of liberally admitting these testimonies has unintended consequences that stem from their medicalized nature, as expert opinions in survival homicide cases are mostly offered by clinical psychologists and psychiatrists.54 The main drawback of these expert opinions is their over-emphasis on defendants’ psychological profiles by portraying the effects of battering as an individual problem of mental impairment, as captured by the use of the deeply problematic term “battered woman syndrome” (BWS).55
Early research on domestic violence portrayed domestic abuse survivors as suffering from BWS and experiencing “learned helplessness” that traps them in abusive relationships and makes them unable to resist abuse. These dated concepts, however, have largely been discredited by more recent studies.56
Commentators have long critiqued courts’ reliance on the “syndrome” language to excuse survivors’ killing of abusive intimate partners.57 They lament that this strategy serves to pathologize defendants’ actions by portraying them as abnormal and irrational responses, which ultimately deprives their agency as rational decision-makers.58 Instead, commentators suggest replacing the “syndrome” language with the phrase “battering and its effects.”59
The capacious concept of “battering and its effects” acknowledges that there is no uniform theory or universal description of the multiple effects of battering on all survivors.60 Studies show that no single preset “psychological profile” accurately characterizes battered people and describes their responses to battering and that there is considerable variation in the ways that survivors respond to domestic abuse.61
Moreover, social science studies have long reconceptualized survivors’ disparate reactions to domestic abuse in a way that casts doubt on characterizing their behaviors as passive acquiescence. Social science researchers have developed the “survivor theory” account, which provides an alternative to the refuted “learned helplessness” account and better explains survivors’ active reactions to domestic abuse.62 The survivor theory account emphasizes that these responses include several stages, including consideration of various responses, selection of actions, and turning to safety strategies to remain free of abuse.63
Studies find that survivors’ reactions to domestic abuse are characterized by taking multiple nonviolent and violent measures to actively resist the abuse64 and that those who experienced more severe forms of violence reported greater efforts to get help and support.65 Contrary to previous assumptions that women’s reactions to their partners’ abuse are submissive, most survivors’ reactions employ ample measures to try to fend off and end the abuse, including actively turning to others by seeking help from agency sources and state institutions, including police, medical personnel, and counselors.66
While many domestic abuse survivors actively respond by taking nonviolent measures to extricate themselves from abusive relationships, some survivors’ coping mechanisms in response to domestic abuse also include turning to violent actions of their own.67 In most cases where women use force against intimate partners, their motivations include acting self-protectively.68 Sociologist Michael Johnson refers to these responses as “violent resistance,” defining this term as the use of self-protective actions by women who have been abused by intimate partners, but emphasizing that these actions do not always qualify as self-defense under criminal law.69
Yet, despite the fact that social science research has made significant progress in understanding the cumulative effects of domestic abuse on survivors, the problems that commentators identified over thirty years ago still loom large in contemporary court decisions.70 A review of recent court decisions reveals that courts today continue to use dated medicalized language to characterize abused defendants’ responses to domestic abuse despite rejection of such language in social science studies.71
The 2019 Iowa Supreme Court decision in Linn v. State is illustrative.72 The defendant was convicted of first-degree murder of her abusive husband, filed for post-conviction relief arguing ineffective assistance of counsel after her trial counsel failed to adduce BWS evidence, and requested that the court appoint a BWS expert at the public’s expense.73 The Iowa Supreme Court accepted the defendant’s arguments and not only provided an unusually elaborate primer on the cumulative effects of domestic battering and the importance of admitting BWS testimony to support the defendant’s self-defense claim, but also noted that experts have largely abandoned BWS’s “learned helplessness” and cycle-of-abuse accounts.74 Yet, despite conceding that there is no single understanding of an abuse survivor’s psychological profile, the court repeatedly referred to the defendant as potentially suffering from BWS.75 By continuing to rely on medicalized perceptions of domestic abuse survivors, the court perpetuates decision-makers’ misconceived perceptions of survivors as afflicted with various psychological impairments or psychiatric disorders.
Likewise, the 2021 Maryland Court of Appeals decision in State v. Elzey further demonstrates the continued judicial use of discredited and medicalized “syndrome” language.76 The defendant was charged with murder after stabbing her boyfriend to death during a heated argument. At trial, in support of her self-defense justification, the defendant introduced expert testimony from a psychiatrist who testified that her “constellation of mental disorders was consistent with what he often sees in someone who suffers from Battered [Wife] Syndrome.”77 The psychiatrist further described BWS as “a psychological condition,” opined that “women with the Syndrome develop ‘learned helplessness,’” and elaborated on the “cycles of abuse that are indicative of the Syndrome.”78
The expert witness’s continued use of dated concepts that social science studies had long refuted, including “learned helplessness,” “cycle of abuse,” and “BWS,” was deeply disconcerting. Moreover, the court uncritically deferred to the expert’s flawed opinion by repeatedly using the term “syndrome” to describe the defendant. This case, like many other recent court decisions, exemplified how current judicial language preserves the misconceived perception of the effects of domestic battering solely as a problem of individuals’ psychological deficiency, which ultimately leads “mentally impaired” survivors to commit irrational acts of violence.79
Furthermore, evidence of BWS and expert opinions that do not use the “syndrome” language yet use medicalized terms that suggest survivors’ mental impairments not only fail to help but, in fact, often harm certain survivors. Psychologists’ and psychiatrists’ testimonies portraying an abuse survivor’s purported prototypical profile and opining on whether a specific defendant fits that profile might be helpful to defendants whom the jury perceives as fitting the victimhood narrative of a weak, helpless, and mentally impaired victim.80 Yet this essentialist account purporting to lump all abused defendants’ behaviors into one predetermined psychological profile is not only flawed but also detrimental to survivors whose behaviors do not fit the preconceived victimhood narrative.81 Psychologists’ and psychiatrists’ medicalized accounts thus contribute to the jury’s perception of certain survivors as strong, aggressive, and independent, resulting in jurors discrediting these survivors’ self-defense claims.82
The problem is further exacerbated when domestic abuse survivors allegedly “deviate” from traditional gender norms and arguably fail to adhere to social expectations regarding feminine roles. As Professor Goodmark observes, when survivors actively resist their repeated abuse by reacting with violence of their own, their behavior is perceived as aggressive, as it does not conform to expected perceptions of femininity.83 Ultimately, she continues, survivors who are not perceived as “perfect victims” are being punished more harshly by the criminal legal system.84
Moreover, intersectionality analysis demonstrates that Black women survivors are least likely to benefit from expert opinions on “profiles” of battered women as they are detrimentally affected by the various stereotypes, biases, and prejudices underlying the responses to their victimization. Black women in the United States experience domestic abuse at disproportionately higher rates than other ethnic groups and races.85 Moreover, Black women fight back against abusive partners more than white women.86 The realities and the stereotypes to which they are subjected sometimes differ from those of Black men and white women.87 A prevalent stereotype that proves particularly harmful to Black women defendants concerns the “Angry Black Woman” trope that contributes to the misperception of Black women as aggressive.88 One of the key requirements for successfully prevailing on self-defense grounds is that the defendant was not the initial aggressor in the encounter that resulted in the homicide.89 The misperception that Black women are belligerent and thus lack the characteristics of “real victims” of domestic abuse not only impedes redress for and protection from abuse, but also contributes to the reluctance to view them as abuse survivors when they commit survival homicide.90
B. Partial Excuses
When the homicide cannot be fully justified on self-defense grounds, plea agreements, imperfect self-defense theories, and provocation doctrines sometimes offer legal bases for mitigating defendants’ criminal responsibility from murder to manslaughter. Yet, manslaughter convictions in lieu of murder convictions prove an insufficient measure for providing equitable treatment of defendants in survival homicide cases. Given the risk of longer punishment if their case goes to trial, some defendants choose to plead guilty and accept a plea agreement that reduces murder to manslaughter. The problems associated with plea agreements have been thoroughly documented.91 The prevalent practice results in convicting over 90% of criminal defendants without trial.92 As Professor Carissa Byrne Hessick’s recent book demonstrates, one of the key problems with plea agreements is the tremendous leverage they provide prosecutors in pressuring defendants to plead guilty to lesser included crimes.93
The pressure to plead guilty to a lesser form of homicide is especially exacerbated in survival homicide cases where murder charges serve as a baseline for negotiation. Abuse survivors are placed in an untenable position of choosing between pleading guilty to manslaughter to avoid the possibility of a murder conviction, accompanied by a harsh term of imprisonment, or taking the risk of going to trial and trying to persuade the jury that they acted in self-defense and be acquitted altogether of any crime.94 Furthermore, reliance on plea bargains as a mechanism for mitigating criminal responsibility in survival homicide cases does not offer a uniform doctrinal basis for treating these cases. Consequently, absent a principled legal construct to address survival homicide cases, outcomes are inconsistent, and different courts treat these cases differently.95
Likewise, the partial excuse of imperfect self-defense also provides only a partial solution to the problem of survival homicide. About half of U.S. states now recognize imperfect self-defense claims that allow the jury to convict a defendant of manslaughter instead of murder in cases where defendants used excessive force after subjectively but unreasonably believing that deadly force was necessary.96 Yet, imperfect self-defense laws have their own drawbacks.97 Just to name one, these laws’ requirement that the actors faced an imminent threat to their lives remains a significant barrier for survival homicide defendants who raise imperfect self-defense claims.98 One example where a court refused to instruct the jury on imperfect self-defense due to the lack of imminent threat was demonstrated in the infamous trial of Erik and Lyle Menendez, two adult brothers who killed their parents and testified that their father physically and sexually abused them in the past and that they feared for their lives.99 The court held that the defendants did not introduce any evidence that at the moment of the killing, they feared imminent threats to their lives.100 It further clarified that prospective fear due to threats to inflict future harm is insufficient to warrant a jury instruction on imperfect self-defense.101 This feature explains why imperfect self-defense arguments are inadequate for domestic abuse survivors who kill. These defendants, such as Nicole Addimando, often kill because of a prospective fear of future risk to their lives rather than an imminent threat that caused them to fear immediate risk.102 It is precisely this missing element that leads jurors to convict such abuse survivors of murder instead of manslaughter.
Moreover, existing provocation doctrines are also insufficient in providing a basis for mitigating the criminal responsibility of domestic abuse survivors from murder to manslaughter. Under the provocation defense, a jury could find that the defendant was provoked into a heat of passion by a legally adequate provocation and thus would acquit them of murder and convict instead of voluntary manslaughter, which carries a lighter sentence than a murder conviction.103 But “[t]he critical question in provocation cases is whether the provocation was legally adequate or reasonable,” and different jurors may disagree on that.104 In the absence of a clear standard regarding the circumstances where provocation was reasonable, proving that they acted in response to adequate provocation remains a problem for domestic abuse survivors.105 In previous work, I have also argued that survivors of domestic abuse sometimes cannot successfully prevail on provocation grounds because they killed mostly out of fear, whereas provocation is largely an anger-based defense.106 While some courts recognize survivors’ provocation claims to reduce their convictions from murder to manslaughter, others hold that provocation is an anger-based defense, which does not apply when domestic abuse survivors kill abusive intimate partners out of fear.107
Yet, even when prosecutors agree to reduce the charges to manslaughter, or provocation or imperfect self-defense claims are successful, and domestic abuse survivors are convicted of manslaughter instead of murder, their legal treatment remains unjust for at least two reasons. First, while manslaughter convictions result in lower terms of imprisonment compared with murder convictions, punishments remain unduly harsh.108 Second, felony convictions carry a host of collateral consequences, which prove especially devastating for survival homicide defendants.
The prosecution of Amreya Rahmeto Shefa under Minnesota law poignantly demonstrates what is wrong with convicting a domestic abuse survivor of manslaughter.109 The defendant was charged with one count of second-degree murder under Minnesota law after she stabbed her husband to death.110 She filed a notice of self-defense and requested that the court consider the lesser included charge of manslaughter in the first degree, and a bench trial ensued after she waived her right to a jury trial.111
The trial court’s summary of facts reveals a tragic story of domestic abuse that the defendant suffered at the hands of the deceased. The defendant met the deceased in 2006 in Addis Abba, Ethiopia, and they married one month later. At the time, the deceased was living in the United States while the defendant, who owned and operated her own business in Ethiopia, remained there for six years, during which the deceased returned to visit periodically. In 2012, the deceased brought the defendant and their two children to live with him in Minnesota. In an interview with police, the defendant said that on the day of the killing, she and the deceased engaged in vaginal intercourse, and he made her perform oral sex. Following that, the deceased raped the defendant by penetrating her anus with a dildo without her consent.112 In response, the defendant picked up two knives and stabbed the deceased thirty times, which ultimately resulted in his death. Evidence showed that the deceased was intoxicated at the time of his death, and the defendant told police that the deceased often drank and hurt her.113 She described living in constant fear of him: “‘I am not even afraid of Allah (god) as I am afraid of [the deceased]’ and ‘I am afraid of [the deceased] all of the time.’”114
The defendant established a history of abuse at trial, testifying that a month after her arrival in the United States, the deceased began verbally and sexually abusing her, and that he and another man simultaneously sexually assaulted her. She had earlier told investigators that she did not leave or report the abuse because she was completely dependent on the deceased.115 The power imbalances in the marital relationship of the defendant and deceased were especially notable because the defendant did not speak any English and was not financially self-sufficient.116
The trial court found that although the defendant credibly testified that the deceased had engaged in extensive sexual abuse, the force she used “greatly exceed[ed] the degree of force required to defend herself.”117 Ultimately, the court concluded that when the defendant intentionally killed the deceased, she was acting in the heat of passion because the sexual assault, when coupled with the proven history of extensive abuse, would have provoked a person of ordinary self-control under like circumstances.118 The trial court acquitted the defendant of the murder charge but convicted her of manslaughter in the first degree and sentenced her to eighty-six months in prison.119 The conviction and punishment were upheld on appeal, and the defendant’s petition for review was denied.120
Yet, the defendant’s conviction and punishment were merely the beginning of her ordeal because of the immigration-related collateral consequences of her conviction.121 Pursuant to the defendant’s conviction of manslaughter, the U.S. Department of Homeland Security initiated a deportation process to remove her back to Ethiopia.122 The defendant filed an application for asylum and withholding of removal, as well as applications for visas, but the immigration judge denied them all.123
The defendant applied to the Board of Pardons for an absolute pardon, arguing that her conviction was unjust because when abuse victims “are prosecuted for their resistance, questions of reasonableness and intent become murky,” and that “returning to Ethiopia [would] likely be life-threatening because [the deceased]’s family [swore] an oath to kill her if she return[ed].”124 While the Minnesota governor and attorney general voted to grant her application, the Minnesota Supreme Court Chief Justice voted to deny it. Lacking the unanimous support necessary under Minnesota law, the defendant’s application was denied, and the Supreme Court of Minnesota upheld the lower court’s decision to deny a pardon.125
ha[d] not satisfied [her] heavy burden of proving that the unanimity requirement violates the separation-of-powers provision. [The defendant’s] efforts to characterize the unanimity requirement as a unilateral veto . . . fail[ed] to overcome . . . the pardon provision[, which] explicitly sets forth the chief justice’s participation in the pardon process. Consequently, the district court correctly concluded that the unanimity requirement does not violate . . . the Minnesota Constitution.
Shefa, 968 N.W.2d at 835. The decision resulted in sending the defendant to Ethiopia, where she faced the grave danger of becoming the victim of a revenge killing.
The case demonstrates the extent to which merely mitigating survivors’ criminal responsibility to manslaughter fails to appropriately address the distinct problem of survival homicide. It exemplifies why a specialized statute that is grounded on mitigated criminal responsibility and excludes collateral consequences upon conviction, which this Article will develop in Part III, is needed to fix the law’s inequitable treatment of domestic abuse survivors. Below, I turn to explain why sentencing mitigation models are also only partially helpful to survival homicide defendants.
C. Sentencing Mitigation
The American criminal legal system consists of two stages: the guilt phase where the defendant’s criminal responsibility is determined, and the penalty phase where the defendant’s sentence is imposed. Mitigating factors underlying the commission of the crime or the defendant’s situation are relegated to the penalty phase. When defendants are not acquitted on self-defense grounds and are convicted of either murder or manslaughter, sentencing judges may exercise their discretion to mitigate their punishment if defendants introduce evidence of past abuse by the deceased.126
Judicial discretion, however, is often limited because, in many jurisdictions, murder convictions trigger statutorily defined mandatory minimum sentences, which are often life sentences.127 When survivors are convicted of manslaughter rather than murder, sentencing judges exercise considerable discretion in deciding the appropriate penalty, either at the initial sentencing phase of the trial or, in a couple of jurisdictions, as a post-conviction remedy, as described below.
1. Initial Sentencing
Mitigation has traditionally played only a limited role in sentencing, as sentencing judges were more likely to implement aggravating rather than mitigating factors, especially without legislative direction.128 In recent years, however, many jurisdictions have relaxed the severity of their sentencing schemes and restored more discretion to sentencing judges.129 States’ sentencing systems largely adopt discretionary sentencing models, which leave the identification of relevant mitigating factors and their relative weights to the discretion of sentencing judges.130 Recent studies find that modern sentencing practices place a heavier role on mitigation.131
In a few states, legislatures adopted specific provisions that guide judges’ discretion in sentencing defendants who killed abusive intimate partners. Some provisions consist of mitigating circumstances related to the offense itself, like imperfect self-defense or provocation.132 Others include circumstances that direct sentencing judges to treat the defendant’s past abuse as a mitigating factor.133 These provisions typically require that the defendant suffered from a continuing pattern of physical, sexual, or psychological abuse by the deceased and a causal connection element under which the offense was a response to that abuse.134 Yet, only a minority of states adopted provisions that explicitly incorporate defendants’ past abuse, as most state legislatures have not included past abuse by the deceased as a distinct mitigating factor, leaving individual judges with sole discretion over whether and to what extent past abuse is relevant in determining sentences.135
Relying on sentencing mitigation frameworks to mitigate survivors’ punishments is problematic because it hinges on unstructured judicial discretion in deciding whether and how much weight to give to mitigating factors like past abuse.136 Sentencing schemes do not provide judges with statutory guidelines on how to balance mitigating and aggravating circumstances. Thus, leaving sentencing judges with the discretion to decide how much punishment an abuse survivor deserves remains an unsatisfactory solution to the problem of survival homicide. Since mitigation largely depends on the viewpoints of the sentencing judge, some judges would take past abuse into consideration, while others would not fully consider the effect of past abuse on the survivors’ acts.137 This discretionary discrepancy results not only in inconsistent sentencing of survivors who killed abusive partners but also in unduly harsh sentencing. As one New York State Assembly Speaker summarized:
All too often, when a survivor defends herself and her children, our criminal justice system responds with harsh punishment instead of with compassion and assistance. Much of this punishment is a result of our state’s current sentencing structure which does not allow judges discretion to fully consider the impact of domestic violence when determining sentence lengths. This leads to long, unfair prison sentences for many survivors.138
2. Resentencing
Three jurisdictions have adopted legislation that provides for post-conviction sentencing mitigation for domestic violence survivors. In 2001, California passed a statute that allows domestic violence survivors convicted of killing their abusive partners to submit a petition for a writ of habeas corpus, which could potentially lead to their release from prison.139 Additionally, in 2015, Illinois amended a statute to allow survivors of domestic violence whose felony convictions were related to that violence to seek resentencing if evidence of the violence was not introduced at sentencing, they were unaware that such evidence might be relevant to their sentencing, and the new evidence is likely to change the sentence imposed by the trial court.140 Most recently, in 2019, New York passed the DVSJA, which provides a comprehensive framework for resentencing survivors of domestic violence who have been convicted of any crime.141
Concededly, the DVSJA offers significant progress for survivors of domestic violence for several reasons.142 First, the law applies not only to survivors who killed abusive family members but also to those convicted of a host of other crimes, including crimes against third parties.143 Second, the law disentangles sentencing mitigation from the rigid elements of self-defense laws. In sharp departure from familiar defenses that require defendants to produce evidence that they acted in self-defense, the DVSJA’s elements are different from those of self-defense. Self-defense requires an objectively reasonable imminent threat to kill or cause serious bodily injury, a proportional response, and a necessity to kill.144 Contrarily, the DVSJA consists of three distinct elements: the defendant was a victim of domestic violence at the time the criminal act was committed, domestic violence significantly contributed to the criminal act, and the sentence that was imposed is unduly harsh given the circumstances underlying its commission.145
Without minimizing this statute’s groundbreaking impact by providing a doctrinal basis for sentencing mitigation for domestic abuse survivors, significant limitations constrain its scope. First, a review of the case law reveals that courts interpret the DVSJA to require a temporal nexus between the domestic abuse experienced and the offense committed by the survivor. For example, in People v. Williams, the defendant’s motion for resentencing under DVSJA was denied after the court found that it was not enough that the defendant was subjected to substantial abuse in the past because she failed to demonstrate that she was the victim of substantial abuse “‘at the time of’ the offense,” as required by the DVSJA.146 The court clarified that although the statute does not require that the abuse occur simultaneously with the offense, it creates a “temporal nexus between the abuse and the offense” because the temporal requirement is included in the statutory language.147 Consequently, the court accepted the prosecution’s argument that because of the temporal limitation, the abuse must be ongoing when the survivor committed the crime.148
Second, the statute’s requirement that domestic abuse be a significant contributing factor to the defendant’s criminal behavior is another substantial hurdle to meet. Even if the defendant was indeed a victim of domestic violence, the burden rests with the defendant to establish precisely how her history of prior abuse had any impact on her participation in the underlying offense.149
Third, the statute’s requirement that the imposed sentence be “unduly harsh” is a significant obstacle to its application. Even if a court finds that the defendant was a domestic abuse survivor and that the abuse significantly contributed to the criminal act, it must also determine that the imposed sentence was unduly harsh. The term “unduly harsh” is notably vague, leaving much room for judicial discretion in interpreting how many years of incarceration satisfy this requirement.150 Fourth, the statute excludes defendants convicted of certain violent crimes, such as sex offenses, from eligibility for sentencing mitigation.151
Additionally, the statute contains several procedural limitations that constrain its application. A defendant could only submit an application for resentencing if the original sentence exceeded eight years of imprisonment.152 For example, the statute will be inapplicable if a defendant was sentenced to seven and a half years imprisonment for killing an abusive intimate partner or another abusive family member, although it remains a considerably hefty sentence.
Another procedural limit that constrains the applicability of the DVSJA concerns the corroboration requirement that the statute imposes on survivors. To prove that the defendant was a victim of domestic violence at the time of the crime for which she was convicted, the defendant must introduce at least two pieces of corroborating evidence, one of them being “either a court record, presentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection.”153 This is particularly onerous for survivors who were mostly subjected to psychological rather than physical abuse, as proving coercive controlling behavior—including threats to inflict future harm that place survivors in constant fear—is often challenging in the absence of any physical injuries, police records of domestic violence report, or protective orders.154
Finally, the DVSJA leaves considerable discretion in the hands of sentencing judges, as different judges interpret its elements differently. The application of the statute in the case of Nicole Addimando is illustrative of the host of difficulties embedded in the exercise of such judicial discretion.155 The trial court refused to apply the DVSJA to Addimando’s case, enumerating four reasons to justify its decision:
First, . . . the [c]ourt [found] that the abuse history presented by the defendant [was] undetermined and inconsistent regarding the extent of the abuse, as well as the identity of her abuser(s).
Second, the nature of the alleged abusive relationship between the defendant and [the deceased was] undetermined, based on the demeanor and behavior of [the deceased] on the day of his death, as well as during the weeks prior . . . .
Third, . . . the defendant had a tremendous amount of advice, assistance, support, and opportunities to escape her alleged abusive situation, and thereby avoid the decision to take the life of [the deceased, yet she chose to ignore these and instead resorted to killing the deceased]. . . .
Finally, . . . the specific facts of the [killing] . . . reveal[ed] a situation where [the deceased] was supine, with his eyes closed, on a couch. The defendant admitted she had a path to escape . . . her apartment, . . . . [but i]nstead, the defendant lunged forward and shot [the deceased] point blank in his temple.156
The appellate court found that the trial court abused its discretion in refusing to apply the DVSJA. It observed that ample evidence established that the defendant was a victim of “repeated sexual, physical, and psychological abuse” inflicted by the deceased, and that this extensive “abuse was a significant contributing factor to the defendant’s criminal behavior.”157 It further rebuked the trial court’s decision as resting on “an arcane belief/suggestion that the defendant could have avoided the murder by withdrawing from her apartment, which are antiquated impressions of how domestic violence survivors should behave.”158 It also found that the trial court “failed to fully take into account the impact of physical, sexual, and/or psychological abuse on the defendant as a domestic violence survivor” and “all but discounted the defendant’s evidence and proof, repeatedly referring to the abuse the defendant and others testified to as ‘undetermined.’”159
While the statute was ultimately properly applied, significant concerns remain regarding its applicability in other cases. The trial court’s interpretation of the statute is disconcerting because, despite the fact that the statute’s elements are distinct from self-defense, courts might continue to impose the restrictive elements of self-defense. The risk is that self-defense laws’ requirement that the defendant committed the criminal act in response to the deceased’s imminent threat to kill them will carry over to the DVSJA even though the statute itself is nowhere limited in that respect.160 In sum, both existing self-defense statutes and sentencing mitigation models are inadequate for offering equitable treatment for survival homicide defendants.
II. Reconceptualizing Battering and Its Effects
The problems stemming from the restrictive elements of self-defense laws call for considering an alternative framework to decouple survival homicide from general self-defense statutes. Rather than tethering the legal treatment of survival homicide to inherently constrained defensive claims, the competing account I offer below seeks to highlight the broader social context underlying survivors’ reactions to domestic abuse over and above framing these responses within limited self-defense constructs.
A. Disentangling from Self-Defense Frameworks
Reformers’ efforts to expand the scope of existing defenses to accommodate the unique circumstances underlying survival homicide have yielded only limited success as many survivors fail to establish defensive claims and are convicted of serious homicide offenses.161 Commentators have long debated whether survivors who used excessive force, deemed unnecessary because the deceased’s conduct at the moment of the lethal act did not pose imminent threat to their lives, should be able to prevail on some partial defense grounds.162
Survival homicide, however, does not fit neatly into either partial excuse or partial justification frameworks. To understand why both the justificatory and excusatory claims are conceptually inadequate in offering domestic abuse survivors proper legal recourse, it is helpful to revisit the fundamental differences between excuses and justifications.163
Justified conduct consists of acts that are typically criminal under normal circumstances but are not considered criminal given the unique background circumstances encompassed by the justification, as the law does not condemn them as wrong.164 Commentators disagree, however, about whether justification implies a strong, positive judgment about the conduct being morally right and affirmatively desirable, or instead connotes only a weaker value judgment under which the conduct is merely tolerable by the law.165
In contrast, the underlying theories underpinning excuse defenses assume that while actors committed wrongful acts that cannot be justified, they nonetheless “should not be blamed or punished for causing [social] harm.”166 Another way of succinctly capturing the difference between justification and excuses rests with highlighting the fundamental distinction between the act itself and the actor who engages in it; justifications focus on the nature and circumstances of the act underlying the criminal prosecution, whereas excuses focus on the personal traits, characteristics, and attributes of the individual actor charged with that crime.167
The difference between excuses and justifications proves especially critical for the conceptual underpinning that underlies the legal treatment of survival homicide defendants. In cases where juries reject the theory that domestic abuse survivors’ lethal acts were justified on self-defense grounds, they may fall back on imperfect self-defense or provocation laws to mitigate survivors’ crimes from murder to manslaughter. Under both imperfect self-defense and provocation doctrines, a survivor’s act of killing is not justified per se, but instead, the law recognizes that at least they ought to be partially excused.168 Therefore, regardless of the doctrinal underpinning for the manslaughter conviction, the theoretical basis for mitigating survivors’ criminal responsibility draws on the notion of partial excuse rather than partial justification.
Reliance on excusatory claims in survival homicide cases, however, has proven deeply problematic given the inevitable tradeoffs embedded in a model that partially excuses survivors based on their purported mental impairments and alleged character trait deficiencies. While establishing a partial defense might be beneficial to the individual murder defendant whose conviction is reduced to manslaughter, categorically excusing domestic abuse survivors based on their status carries a heavy toll of pathologizing the entire group of survivors on the theory that the cumulative impact of the abuse rendered them incapable of making autonomous rational choices.169 The medicalized portrayal of domestic abuse survivors as suffering from psychological impairments ultimately harms all abuse survivors as a group by suggesting that they are diminished moral agents whose capacity for acting rationally is reduced.170 Grounding mitigation for domestic abuse survivors on the idea that they lacked the capacity to make rational choices or that such capacity was significantly impaired is inherently detrimental to these defendants because it perpetuates problematic misconceptions of abuse survivors as not merely irrational actors but mentally disturbed individuals, whose purported mental impairments warrant excusing them.
The infamous case of Lorena Bobbitt demonstrates the risks of reliance on excusatory frameworks to address the problem of domestic abuse survivors who push back against their abusive partners by using violence of their own. Lorena Bobbitt was prosecuted in 1993 in Virginia for maiming her husband John Bobbitt after she had cut off his penis with a kitchen knife while he was sleeping.171 To excuse her act, Bobbitt’s key defensive claim was that her husband had been sexually abusing her and had raped her prior to her act of mutilation.172 The jury accepted Bobbitt’s account and acquitted her of the crime, arguably on the theory of “temporary insanity,” which resulted in her brief involuntary hospitalization in a mental hospital.173 While Lorena herself benefited from juries’ reliance on temporary insanity, domestically abused defendants as a class are, in fact, harmed by being perceived by society as mentally abnormal, irrational women. The Bobbitt case exemplifies the high cost that abuse survivors pay for being excused for their criminal acts based on dubious theories of mental impairments.
Conceding that the excusatory basis for treating survival homicide offers an improper legal recourse to survivors, and should therefore be abandoned, leaves us with the alternative of casting survivors’ defensive claims within a partial justification theory. Yet, a wholesale framing of survivors’ acts in self-defense claims fails for several reasons.
First, as sociologist Michael Johnson posits, “the term ‘violent resistance rather than ‘self-defense’ [is more apt] because self-defense is a legal term carrying very specific meanings . . . and because there are varieties of violent resistance that may have little to do with these legal meanings of self-defense.”174 Survival homicide cases are not all cut from the same cloth, and therefore a single framework which is based on a justificatory theory cannot offer a uniform solution for addressing the varied circumstances underlying them.
Second, as Professor Mary Anne Franks argues, self-defense is essentially a male-oriented and male-friendly defense that is raised successfully in typical male-on-male encounters, where the parties are typically strangers.175 Self-defense’s elements are not fit to address the underlying circumstances characterizing survival homicide, where survivors endure cumulative, ongoing domestic abuse by someone they live with rather than by a stranger in a street encounter.176
Relatedly, another reason for decoupling survival homicide from general self-defense statutes lies in the inevitable connection between self-defense claims raised by domestic abuse survivors, who are mostly (albeit not always) women, and similar claims raised by men like George Zimmerman and Kyle Rittenhouse, who killed people after arming themselves with guns, provoking volatile encounters, then claimed that the deceased was the initial aggressor.177 The perverse outcome is that existing laws let men like Zimmerman and Rittenhouse walk free because of successful applications of self-defense statutes, which largely accommodate the reactions of aggressive males, while domestic abuse survivors, who are often women, are unable to prevail under the same statutes whose elements fail to accommodate their unique experiences.
In recent years, self-defense statutes have come under fierce attack after defendants like Zimmerman and Rittenhouse were acquitted of all charges.178 Public outrage over such controversial acquittals will likely lead to calls to amend self-defense laws to make it harder for defendants like these to prevail on self-defense grounds. Contracting the scope of general self-defense statutes, however, would also have unintended consequences for survival homicide defendants, making it even harder for them to establish self-defense claims.179 If self-defense statutes placed the burden of proof on survivors to establish that they acted in self-defense instead of on the state to disprove one of self-defense’s elements beyond a reasonable doubt, such change would result in increasing the number of cases where courts and juries reject survival homicide defendants’ self-defense claims.180 As Professor John Pfaff observes, the “tricky public policy issue” is that the same rules that make it easier for defendants like Rittenhouse to be acquitted might also protect survival homicide defendants.181 To avoid controversial acquittals of men like Rittenhouse on self-defense grounds without harming survival homicide defendants, the law must disentangle the treatment of survival homicide from general self-defense claims.
Third, none of the general theories that typically underlie justification defenses proves fit when applied in the context of survival homicide that occurred in circumstances where the deceased did not pose any imminent physical threat to the survivor’s life at the time of the killing. Under the “moral rights” theory, survivors might be partially justified because they arguably had a right to protect their natural right to autonomy and their moral interest to survive by acting preemptively to enforce these rights that the deceased’s conduct threatened to violate.182 Yet, the amorphous idea of a moral right raises concerns of over-inclusiveness and lack of proportionality.183 A key premise underlying the justification theory is that the killing was indeed necessary under the circumstances.184 Even if self-defense’s restrictive imminency element was relaxed, the absence of necessity trumps a justificatory claim because an unnecessary killing cannot be justified.185 When domestic abuse survivors kill at a moment in which the deceased did not threaten deadly physical violence, juries are unlikely to be persuaded that the killing was necessary and, thus, partially justified.186
Fourth, a key reason why existing self-defense claims are poorly fitted to address the unique circumstances underlying survival homicide is that all self-defense statutes are crafted to capture actors’ reactions to the deceased’s actual physical violence, or their threats to engage in it, at the time of the actor’s response.187 Self-defense’s elements are not designed to account for circumstances where abusive family members engage in a pattern of repeated threats to harm survivors at some unspecified time in the future, which places survivors in constant fear of physical harm to themselves or their children.188
In the last three decades, social science research has made enormous progress in understanding battering and its cumulative effects on domestic abuse survivors. There is a broad consensus these days that domestic abuse includes not only physical violence but also various forms of psychological and emotional abuse.189 Sociologist Evan Stark’s work describes the various ways in which domestic abusers engage in coercive controlling behaviors as a way to intimidate, dominate, and control their intimate partners.190 Stark argues that the legal system’s emphasis on individual incidents of physical violence obscures other abuse patterns consisting mostly of coercive controlling behaviors.191 Indeed, domestic abuse survivors are also subjected to additional forms of domination, including threats of harm to them as well as their children, surveillance, stalking, social isolation, and restrictions on their finances.192
While these non-physically violent behaviors are prevalent manifestations of domestic abuse, they are not criminalized under existing laws, and thus, self-defense statutes are not designed to address them. Yet, survivors sometimes kill intimate partners in circumstances where coercive controlling behaviors, particularly unspecified threats and more implicit forms of intimidation, rather than physical or sexual violence, significantly contributed to the killing. Take, for example, the Ohio decision in State v. Goff.193 In this case, the defendant was convicted of murdering her estranged, abusive husband, who had previously made repeated threats to kill her and their children. At the time of the killing, however, not only had he not made any imminent physical threats against her or their children, who were not present at the scene, but also, the defendant was the one who initiated the encounter between them by going to his home armed with a gun.194 Self-defense laws do not cover circumstances like these and would not even partially excuse domestic abuse survivors who responded to coercive controlling behaviors. Yet, when domestic batterers engage in repeated patterns of intimidation, threats, and surveillance, survivors are constantly placed in fear of future bodily injury, which sometimes prompts them to act preemptively in a way that self-defense laws do not recognize. In order for the law to take into account the effects of such repeated intimidation on survivors’ reactions, it is necessary to disentangle survival homicide from self-defense laws. The designated offense I propose in Part III does precisely that. But before turning to develop this specialized offense, the following section lays out an alternative conceptual model for understanding survival homicide.
B. A Social-Ecological Model for Survival Homicide
As previously discussed, existing legal frameworks conceptualize survivors who kill abusive family members as having certain psychological “profiles,” which cause them to suffer from mental impairments that affected their capacity for making rational choices.195 The main drawback in this theory is that it perceives abused defendants’ survival acts solely as a personal problem of individual criminal responsibility. Framing survival homicide merely as an individual behavioral problem results in neglecting to fully contextualize survivors’ acts by situating them within the broader social context that underlies domestic abuse survivors’ lives. Existing defensive claims obfuscate the underlying social and cultural conditions, as well as the host of structural gender, racial, and class inequities that contribute to the phenomenon of survival homicide.
Instead, this Article advocates for a more nuanced position that considers the inevitable interplay between law and society by recognizing the inherent limits embedded in existing criminal models, which exclusively focus on the personal culpability of individual actors. Under this proposed alternative law and society perspective, to fully understand the problem of domestic abuse survivors committing homicide, it is essential to also consider the background circumstances, social constraints, and the cultural, gender, and racial barriers underlying survivors’ resorts to violent reactions.196 This Article proposes shifting the focus away from viewing survival homicide merely as a problem of individual wrongdoing and toward a social-ecological framework that emphasizes the full social and cultural context that dominates survivors’ lived experiences and emotional traumas, within which some survivors may resort to lethal force.197
Scholars in a variety of areas broadly employ what has come to be referred to as social-ecological models.198 Social-ecological models generally include four levels: (1) the individual within the context of relationship, (2) relationships within the context of community, (3) community within the context of society, and (4) the broader societal environmental factors.199
Likewise, domestic violence researchers have proposed applying a social-ecological model for understanding survivors’ varied responses to abuse.200 The model stresses the interplay between individual survivors and their relationship, community, and societal factors. It rejects the prevalent behavioral model, which centers exclusively on individual survivors’ behaviors.201 Instead, the social-ecological model situates individual survivors’ behaviors within the larger social and cultural context by studying the impact of a broader set of factors going beyond the individual characteristics of both batterers and survivors.202 For example, psychologist Mary Ann Dutton and her colleagues suggest that multiple factors might influence the relationship between victimization and outcomes.203 The social-ecological model’s goal is to identify contributors to patterns of domestic battering that are rooted in the larger community and the survivor’s social support system.204
One possible application of the social-ecological model to survival homicide concerns introducing social framework evidence in survivors’ criminal trials. Social framework evidence refers to general social science research that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case.205 Commentators have proposed a more prominent role for social framework evidence in trials in a variety of legal areas. For example, advocating for incorporating social framework evidence in employment discrimination cases, Professor Tanya Katerí Hernández argues that social framework evidence “more accurately situate[s] a specific case of discrimination against a backdrop understanding of how discrimination actually operates, which can better assist a fact finder in identifying the manifestations of discrimination.”206
Likewise, commentators have long suggested that the case of domestic abuse defendants offers one example where social framework evidence would be particularly helpful to juries.207 A social-ecological model in the domestic violence context integrates social framework evidence into understanding survivors’ reactions to domestic battering within the context of their social and cultural conditions.208 Psychologist Regina Schuller advocates for incorporating social agency testimony as an alternative to conventional psychological evidence about survivors’ profiles.209 Schuller argues that a social agency model better explains battering’s effects on survivors in light of their overall social context.210 Viewed through this lens, the evidence introduced in survivors’ criminal trials should de-emphasize experts’ testimonies on survivors’ psychological symptoms and emphasize instead the overall social context that is necessary for understanding survivors’ responses to domestic abuse.211
Currently, the role of social framework evidence in trials in general, and particularly in criminal trials, is contested. That is because criminal law generally focuses on the specific incidents underlying the criminal charges against the individual defendant rather than on social and cultural patterns.212 Arguably, introducing social framework evidence might raise a number of concerns from an evidentiary perspective.213 The rules of evidence are mostly aimed at directing jurors’ attention to relevant information that would be helpful to the jury in making their decisions, including the introduction of expert opinions.214 Additionally, under the “mercy rule,” criminal defendants are allowed to introduce character evidence about their own character traits or the victims’ character traits as long as these are deemed “pertinent” to the specific charges.215 Within this evidentiary framework, allowing expert witnesses to testify about social framework evidence, including information regarding broad social and cultural circumstances underlying defendants’ acts, might be perceived not only as unhelpful to decision-makers but also as potentially confusing the jury by diverting their focus from the specific facts of the case. There is also a risk that jurors would assign too much weight to expert testimonies consisting of background circumstances.
Yet, human behavior in general, and domestic abuse survivors’ behaviors in particular, are deeply influenced by social patterns and cultural attitudes. Relaxing existing evidentiary barriers to include social framework evidence in survival homicide prosecutions would allow survivors to introduce testimonies about batterers’ coercive control of them, lack of effective community support, inadequacy of the legal system’s responses to domestic abuse, survivors’ risks of leaving abusive relationships, dearth of economic support, employment opportunities, housing for survivors, and insufficient child care.216 Additionally, social framework evidence should also include testimonies regarding larger structural inequality and societal barriers underlying many domestic abuse survivors’ lives, such as systemic racism, classism, heteropatriarchy, and ableism.217
Likewise, the risks associated with separation violence and survivors’ limited financial resources and employment opportunities are two factors that prove especially pertinent under the social-ecological model. Separation violence means that survivors’ acts of resistance in response to their abuse may result not only in increased attempts to control their behavior but also in escalation of the violence against them.218 Survivors’ attempts to leave abusive relationships often increase the risks to their lives as batterers may resort to lethal violence in response to survivors’ attempts to end the relationship.219 Domestic violence researchers have identified estrangement as a risk factor for intimate partner homicide, with most women who have been murdered by their intimate partners being killed within a year of leaving.220 Courts, however, routinely refuse to admit into evidence expert testimonies about the risks of separation violence, reasoning that these testimonies are impermissible character evidence.221
Furthermore, survivors’ lack of financial independence is yet another social factor that underpins survivors’ responses to domestic abuse. Poverty and battering are inextricably intertwined as poverty increases the chances of women’s vulnerability to domestic abuse, and abuse, in turn, significantly contributes to survivors’ poverty.222 Researchers have studied the effects of domestic battering on survivors’ work status, income levels, and access to financial resources.223 They found that the experience of domestic battering drives the negative impact on survivors’ occupational functioning.224 Domestic battering “was associated with unemployment and income under the poverty level,” and the “[l]evel of violence also predicted being unemployed, change in employment, and less access to resources.”225 Studies also recognize that controlling survivors’ finances is part of batterers’ coercive controlling behaviors, explaining the ways in which many survivors remain in abusive relationships because their financial resources are limited.226 In contrast with the behavioral model, which ignores the role of economic disempowerment, the social-ecological model emphasizes the close correlation between domestic abuse and survivors’ economic dependence on their partners, including limited employment opportunities. Survivors’ inability to leave abusive relationships may be perceived as a rational choice within a social-ecological framework, given the numerous societal obstacles that they face.
To date, the social-ecological model has been applied to the general phenomenon of domestic abuse, but it has yet to be applied in the specific context of survival homicide.227 The model accounts for the underlying social context that may lead some survivors to use lethal force against abusive intimate partners by drawing attention to survivors’ social structural basis and the ample inequities underlying their lived experiences.228 Framed through this lens, survival homicide may plausibly be perceived as a rational strategy that some survivors choose when confronted with threats to their survival.
Implementing a social-ecological model for survival homicide offers a more holistic framework for understanding survivors’ desperate acts. While one application of this model consists of introducing expert testimonies in individual defendants’ criminal trials, as discussed above, another application that has yet to be suggested draws on the model to propose a separate offense designed specifically for prosecuting survival homicide defendants, which I now turn to develop.
III. A Sui Generis Framework: Survival Homicide Offense
Insights gained from the social-ecological model provide policymakers with new tools through which to evaluate survivors’ lethal acts. The time is ripe for considering an innovative solution to this old problem by adopting a sui generis framework under which state legislatures would craft a designated offense, titled “survival homicide,” whose elements, as well as punishment, are distinct from both murder and manslaughter.
The survival homicide offense departs from existing frameworks for addressing domestic abuse survivors who committed homicide in two respects. First, it shifts away from familiar self-defense constructs toward a separate offense specifically designed for survival homicide. Second, it reconceptualizes survival homicide under a specialized mitigated criminal responsibility model instead of the familiar sentencing mitigation model that currently applies when defendants’ self-defense claims are rejected.229
Proposing to carve out a specialized statutory provision for survivors who killed abusive family members begs the question of whether and why domestic abuse exceptionalism is warranted. Below, I offer two alternative accounts of exceptionalism to justify a specialized framework for survival homicide.
A. Why Domestic Abuse Exceptionalism?
As this Article acknowledged at the outset, domestic abuse survivors are not the only type of abuse-victims-turned-criminal-defendants, as other groups have also been subjected to various forms of victimization outside the familial and household settings.230 For example, individuals who have been subjected to coercive indoctrination, that is, growing up under impoverished socioeconomic conditions and having endured a host of pressures in their streets and neighborhoods to commit crimes, could arguably be viewed as abuse survivors too and raise similar claims for recognizing a specialized legal framework to account for their prior victimization.231
Professor Richard Delgado has long proposed crafting a separate excuse of “rotten social background” to mitigate the criminal responsibility of offenders whose life circumstances contributed to their offending.232 Proponents of mitigated criminal responsibility due to severe environmental deprivation suggest that individuals who have suffered from racial discrimination, dysfunctional family dynamics, and lack of adequate housing, employment, and education might also be partially excused based on their socially disadvantaged backgrounds.233 While these proposals have ignited lively scholarly debate, they have never gained traction in practice in the form of any legislative amendments that recognize such an excuse.234 Socioeconomic deprivations have yet to be recognized as a basis for mitigating individual blame.235 Conceding that the scope of the problem of abuse-survivors-turned-criminal-defendants indeed extends over and above the domestic realm calls for articulating some justifications for drawing the line between different groups of abuse survivors based on the familial setting.
Advocating for a specialized survival homicide offense rests on two separate lines of reasoning: one I refer to as “hard” exceptionalism, and the other I refer to as not strictly pure exceptionalism per se but rather an alignment with analogous areas where criminal law in general, and homicide law in particular, embrace exceptionalism by recognizing circumstances for both mitigating and aggravating defendants’ criminal responsibility.
Beginning with “hard” exceptionalism, a specialized legal framework for domestic abuse is justified for at least four reasons. First, survival homicide is a form of relational crime, meaning that the survivor and the abuser are either related by blood or live in the same household.236 This relational dimension places domestic abuse survivors in a unique predicament compared to other crime victims. It is the disparate nature of relational crime and its resulting distinct harms that makes abuse within close personal relationships more blameworthy than stranger violence.237 Because survivors live under the same roof as abusers, enduring constant fear for their safety, their position is qualitatively different compared to those who struggle with difficult life circumstances in the outside world. The home has always had a special meaning in American lives as one’s sanctuary from outside harm.238 What makes domestic abuse categorically different is that this private place, which is supposed to be a safe haven, is where harm is inflicted from within.239
The second reason that justifies exceptionalism lies with the difference between active abuse and passive neglect as contributors to survivors’ dire predicaments. While there are some analogies between defendants with rotten social backgrounds and domestic abuse survivors, there are also important differences between these groups that explain why domestic abuse survivors should be viewed as genuine victims of others’ wrongdoing. It is the difference between an identified domestic abuser, on the one hand, and general societal omissions to adopt laws and policies that improve the lives of individuals on the other. This difference may be analogized to law’s disparate legal treatment of criminal liability based on an act as opposed to an omission, that is, a failure to act.240 Domestic abuse survivors have endured physical, sexual, and psychological abuse by abusers whose behaviors not only caused the survivors’ predicaments but are also morally blameworthy for this wrongdoing. By contrast, individuals living in impoverished conditions endure mostly passive societal neglect but are not subject to intentional abuse.
Third, exceptionalism for survivors of domestic abuse should be viewed as a corrective measure for the long history of profoundly inadequate societal responses to domestic abuse. Until the mid-1980s, this phenomenon had been perceived as a private matter between married couples, one that society refrained from interfering with in order to protect the value of family privacy.241 Feminist commentators have long lamented that states’ failures to intervene not only facilitated gendered hierarchy in marital relationships but also obscured serious harms to domestic violence survivors.242 As a result of feminist advocacy, states developed vigorous responses to domestic abuse that heavily relied on the criminal legal system to hold domestic batterers criminally accountable.243 These days, however, many commentators fiercely critique the turn to the criminal legal system because of, among other reasons, its detrimental impact on survivors, failure to focus on their needs, and disregard of their autonomous choices.244 For example, one of the unintended consequences of states’ mandatory arrests of domestic violence offenders and prosecutors’ “no-drop policies” was penalizing domestic abuse survivors who refused to cooperate with states to address domestic violence.245
Crafting a specialized statute to prosecute survivors of domestic abuse who killed abusive partners or other abusive family members acknowledges that they have been continuously subjected to multiple levels of inequitable legal treatment by the state. The unfair treatment of domestic violence survivors initially started with states’ failure to intervene to protect them from abuse but eventually culminated in prioritizing tough prosecutorial policies against batterers while neglecting to support survivors’ needs. Relatedly, conceptualizing domestic abuse exceptionalism as a corrective measure is also warranted to compensate for the legal system’s practice of disbelieving survivors’ experiences and doubting their credibility.246 Credibility discount, defined as “unwarranted failure to credit an assertion where this failure stems from prejudice,” remains a significant barrier not only for domestic abuse survivors who become involved in the criminal legal system, but also for those who turn to the civil legal system to secure civil protection orders.247
Fourth, a key justification underlying exceptionalism for domestic abuse survivors lies with political feasibility concerns. To date, state legislatures have shown cautious willingness to adopt reforms for low-level crimes—affecting criminal responsibility only in limited contexts—such as the decriminalization of marijuana possession and the reforming of some misdemeanors.248 But these modest reforms have yet to expand to also affect core crimes like homicide.
Some state legislatures, however, have recently expressed aptitude for carving out specialized legal treatment for survivors of domestic abuse. As previously discussed, the New York State Legislature recently adopted the DVSJA, which authorizes courts to mitigate sentences of survivors of domestic abuse when such abuse significantly contributed to crimes they committed.249 State legislatures’ willingness to acknowledge that domestic abuse survivors deserve reduced sentences might open the door toward their taking the next step by carving out specialized provisions to mitigate survivors’ criminal responsibility itself.
Moreover, survival homicide exceptionalism affects only a small number of homicide cases. The number of domestic abuse survivors who resort to killing abusers is relatively small today.250 Carving out an exception for the prosecution of these survivors is thus only modest in scope. Survival homicide statutes are a far cry from a comprehensive overhaul in the definition of homicide offenses and are thus more likely to gain political support.
While some readers might be persuaded that full-fledged exceptionalism for domestic abuse survivors is warranted, others might cast doubt on a proposal to craft a specialized treatment for this group of defendants. Responding to the latter concerns, I propose another theoretical basis for framing the specialized survival homicide statute without resorting to hard exceptionalism.251
An alternative framework suggests that the proposal to mitigate domestic abuse survivors’ criminal responsibility for homicide may be plausibly viewed as entirely consistent with existing legal frameworks. In fact, within the criminal law realm, the notion of exceptionalism is neither novel nor unique but quite prevalent.252 Other notable areas where criminal law already openly and categorically embraces exceptionalism concern sex crimes,253 violent crimes,254 drug crimes,255 and hate crimes.256 Moreover, commentators continue to propose carving out additional frameworks that draw on exceptionalism to recognize the distinct harms inflicted on certain groups of defendants, such as the unique implications of invasive bodily searches on incarcerated girls.257
Furthermore, within the specific area of homicide law, existing statutes already provide distinct legal treatment to defendants who acted out of certain emotions.258 Drawing an analogy to the law’s treatment of defendants’ anger offers a powerful reason why survivors’ fear and survival should similarly mitigate their criminal responsibility.259 Provocation doctrines already explicitly recognize that actors’ anger may serve as a basis for mitigating their criminal responsibility from murder to voluntary manslaughter.260 Under the prevailing account of provocation, which centers on defendants’ loss of self-control, anger is not understood as a motive for killing.261 But some commentators suggest that anger is such a motive, observing that provoked actors kill from motives that criminal law regards as less blameworthy, thus justifying mitigating their criminal responsibility.262 Framing anger as a motive that makes homicide defendants less culpable begs the question: if anger is an understandable reaction that mitigates actors’ criminal responsibility, why shouldn’t defendants’ fear for their lives similarly mitigate their criminal responsibility?
There is even a stronger case for recognizing fear as a basis for mitigating survivors’ criminal responsibility below the level of manslaughter. Lower gradation of survival homicide is warranted because fear is a more justified emotion compared to anger in circumstances of domestic abuse, not only because it is a response to abusers’ wrongful acts, but also due to the danger that survivors will be killed by abusive family members.263 Femicide, the gendered killing of women by men, remains a disconcerting problem that does not receive sufficient attention and is rarely referred to by name.264 Data shows that the likelihood of women being killed by an intimate partner is much higher than the likelihood of men being killed by an intimate partner.265 Moreover, statistics show that “[i]n 2013, fifteen . . . times as many females were murdered by a male they knew than were killed by male strangers,” and that “[f]or victims who knew their offenders, 62% were wives, common-law wives, ex-wives, or girlfriends of the offenders.”266
The analogous treatment of defendants’ anger within provocation doctrines suggests that rather than a form of genuine exceptionalism, survival homicide statutes would conceptually conform to existing excusatory defenses by expanding the same rationales that undergird them. This would help to also mitigate the criminal responsibility of defendants whose acts were motivated by survival and fear. Framed this way, survival homicide statutes offer a corrective strategy that reduces the criminal responsibility of domestic abuse survivors in a manner that is consistent with existing legal frameworks that already mitigate angry actors’ criminal responsibility.267
Intersectional analysis further buttresses this position. As previously discussed, existing criminal law doctrines embed inherently male perspectives in crafting the elements of provocation and self-defense statutes.268 While these arguably male-friendly doctrines accommodate the typical experiences of white male defendants, they often fail to accommodate the typical experiences of women, racial minorities, and other marginalized communities.269 A survival homicide statute may, thus, be perceived as yet another corrective measure that is responsive to intersectional concerns by highlighting the gender, racial, and class inequities that characterize existing doctrines. Framed this way, rather than grounding survival homicide in genuine exceptionalism, the specialized offense simply levels the playing field by offering evenhanded gender-neutral legal treatment to all defendants whose level of blameworthiness is lower due to the impact of emotions like fear, anger, and frustration coupled with their survival motive.270
Having explained why exceptionalism for survival homicide is warranted, the analysis now turns to the two key theoretical justifications that underlie the proposed statute. But before doing so, a brief explanatory note is in order to clarify the relationship between these justifications. Admittedly, some readers might not be persuaded by the argument that adopting a separate statute for survival homicide is justified based on the states’ shared responsibility rationale. Readers might characterize this rationale as grounded solely in a feminist position, and reject the proposal that survival homicide be treated under a separate statute. Yet, even those who might not be persuaded by the feminist justification might still be persuaded by the additional, entirely independent basis for a separate survival homicide offense, which rests on survivors’ lower culpability. The second justification for the proposed statute draws on general criminal law principles and specifically on broad notions of retributive justice and proportionality. This argument adopts the general retributive idea that defendants whose behaviors are less morally blameworthy should be treated more leniently by the law because the level of their culpability is lower. This justification is sufficiently powerful to stand on its own feet, even without subscribing to the suggestion that states are partially responsible for survivors’ predicaments. Framed this way, the two types of justifications discussed below should be construed as alternative and independent rationales underlying the proposed survival homicide statute.
B. States’ Shared Responsibility
As previously mentioned, to date, no jurisdiction has adopted a separate legal framework that might partially excuse defendants whose background circumstances significantly contributed to their offending. Legislatures’ refusal to recognize such framework lies with criminal law’s fundamental assumptions that criminal culpability rests with individual blameworthiness and cannot be shared between offenders and society, and that states, as institutions, cannot be criminally responsible.271 The following analysis challenges this conventional wisdom by suggesting that states should share at least part of the responsibility for survivors’ predicaments.
The first theoretical justification that explains why domestic abuse survivors’ criminal responsibility should be mitigated focuses on reframing states’ responsibility for failing to prevent domestic abuse. Domestic abuse is far from being merely a problem of individuals’ culpability that criminal law is suitable to address; instead, it is a multifaceted problem, implicating broad social, economic, and public health concerns.272 Holistically understanding the full scope of domestic abuse’s effects requires focusing not only on survivors’ personal blameworthiness and abuse-related traumas, but also on states’ dual failure to both prevent domestic abuse and provide survivors with adequate support necessary to end abusive relationships.
Drawing on understandings gained from the social-ecological model for domestic abuse, I argue that states share part of the responsibility for survivors’ acts and thus should revise their criminal codes to reflect the idea that survivors’ responsibility is relative to that of states. I coin the term “comparative/relative criminal responsibility” to refer to this model, which draws on the idea that survivors’ criminal responsibility is comparative to states’ shared responsibility.
A key argument that justifies the adoption of a designated homicide offense for survival homicide rests with recognizing that states share partial responsibility for survivors’ lethal acts because of their own failings.273 A host of societal failures contribute to survivors’ reactive violence and should thus result in a legislative reform that mitigates survivors’ criminal responsibility for homicide, as “forcing society to reckon with its own failings is one of criminal law’s most important purposes.”274 Because states prosecute survivors for killing abusive family members, survivors’ criminal responsibility ought to be comparative and evaluated vis-à-vis states’ shared responsibility for neglecting to provide survivors with conditions necessary for living safely and thus contributing to their becoming crime victims and, consequently, perpetrators.
1. States’ Duties
A main function of the state is to provide people with personal safety and security, including the duty to protect them from harms perpetrated by private actors.275 Governments adopt laws that are premised on the assumption that states have an obligation to promote their citizens’ fundamental rights to life and bodily integrity.276 This assumption rests on political theories that have long recognized states’ obligations toward their citizens under what is commonly referred to as “social contract” theory.277
Philosopher Martha Nussbaum offers a useful way for understanding states’ duties toward their citizens. Nussbaum has developed the capabilities approach, which consists of ten fundamental capabilities that each individual ought to have to be fully human.278 These include, among others, the capability for bodily integrity, which encompasses the right to be free from domestic violence.279 To flourish as functioning citizens in society, continues Nussbaum, individuals must be capable of bodily integrity.280
The main practical implication of the capabilities approach is that it imposes positive, affirmative obligations on states. It dictates that states have an absolute constitutional duty to protect, actively promote, or create whatever conditions are necessary for citizens to possess these fundamental capabilities and protect their minimal attainment.281 This obligation is part of states’ duty to treat their citizens with dignity and justice.282 The capabilities approach further establishes a political interest in providing a host of fundamental rights to citizens, including, among others, expanding remedies for domestic violence survivors.283
States’ penal laws, particularly assault and homicide offenses, are premised on states’ duty to promote public safety.284 The public institutions of police and prosecution have replaced traditional reliance on individuals’ exercise of private justice.285 Also, one of the premises underlying the adoption of the Violence Against Women Act was that states contribute to the continuance of domestic violence through nonfeasance and misfeasance.286
Yet, despite four decades of vigorous criminal enforcement of domestic violence laws, survivors still do not receive adequate state protection and necessary support.287 The theoretical recognition of states’ obligation to promote survivors’ safety has never resulted in court decisions that frame states’ duty as a matter of a constitutional right to be protected against private violence.288 The United States Supreme Court’s decision in Town of Castle Rock v. Gonzales illustrates a state’s failure to protect domestic abuse survivors.289 In Castle Rock, a lower court issued a protective order to protect Ms. Gonzales and her three daughters from her abusive estranged husband. When he kidnapped the girls, she repeatedly called the police, yet no efforts were made to find him. After he killed the girls, Ms. Gonzales sued the state under 42 U.S.C. § 1983, claiming that the state violated the Due Process Clause because the police department arbitrarily deprived her, without due process of law, of her right to enforcement of the protective order.290 Rejecting her claim, the Court found that Ms. Gonzales and her daughters had no due process right to police protection.291 The Court held that states are not constitutionally required to enforce their own protective orders, and even if state law had imposed a mandatory duty on the police, the state had not given a private party any entitlement to the enforcement of the order.292 The Court’s failure to recognize survivors’ constitutional right to state protection against private violence has been extensively criticized,293 and further elaborating on this critique exceeds the scope of this Article. For the purposes of my argument here, it suffices to stress that the Court has yet to hold that states’ neglect in enforcing its own protection orders violates domestic abuse survivors’ constitutional rights.294
2. States’ Failures
In the past four decades, states have made important progress in combatting domestic abuse, yet adequate legal responses, including sufficient interventions, are still significantly lacking in two respects: prevention of future abuse and support of survivors.295 While states have adopted mandatory arrest and “no-drop” policies for prosecuting domestic violence, criminal enforcement of domestic violence statutes yielded only limited success, partly because the criminal legal system is mostly reactive—prosecuting batterers for harm once it has already been inflicted but proving deficient in preventing future harm to survivors.296
Moreover, many survivors of domestic abuse are reluctant to turn to the criminal legal system for protection. Instead of locking up batterers, they wish to ensure their own safety and remain free from future abuse.297 The unwillingness to rely on criminal law is especially prevalent among minority and particularly Black survivors who distrust the criminal legal system, which they perceive as racist, violent, and disproportionately harmful to their communities.298 Many survivors thus opt to pursue a civil remedy by receiving civil protection orders, which are the most commonly used tool available for survivors, and have largely proven effective in preventing future battering.299 Several shortcomings, however, characterize these orders.300
Survivors often face difficulties obtaining civil protection orders given courts’ hesitancy to issue them, which often stems from them discrediting survivors’ accounts of abuse.301 Additionally, states significantly differ on how they define domestic abuse that warrants issuing a civil protection order, and only a minority of jurisdictions provide this remedy for psychological and emotional abuse that falls short of threats to place survivors in fear of future physical violence.302 Moreover, even if courts do issue protection orders, batterers often violate them.303 Thus, these orders are practically meaningless in practice unless batterers’ compliance is backed up by effective enforcement.304 Existing enforcement mechanisms of civil protection orders, however, not only rely on criminal enforcement, but are also significantly lacking.305 States have yet to adopt adequate enforcement tools to ensure compliance with these orders.306 Finally, even when protection orders are issued, the Court’s decision in Castle Rock demonstrates that domestic abuse survivors do not have a constitutional right to their effective enforcement.307
Another area where states fail to provide domestic abuse survivors with sufficient protection against future abuse concerns refusal to prohibit firearms possession by domestic abuse offenders.308 Ample studies document the ways in which access to firearms poses significant risks to abuse survivors.309 These demonstrate the close correlation between batterers’ possession of firearms and survivors’ increased chances of being shot to death by their intimate partners.310 In sum, states’ inadequate measures are demonstrated in survivors’ difficulties in obtaining civil protection orders and the insufficient mechanisms to enforce their compliance, as well as neglecting to adopt laws that restrict batterers’ access to firearms.
Another major area where states fall short in their duty to facilitate survivors’ right to life and bodily integrity concerns their failure to provide survivors who wish to end abusive relationships with adequate financial support.311 The criminal legal system’s emphasis on punishing batterers obfuscates a corollary state obligation to financially support abuse survivors.312 In a powerful memoir titled Maid: Hard Work, Low Pay, and a Mother’s Will to Survive, Stephanie Land provides a compelling account of domestic abuse survivors living in poverty and describes states’ failures, including lack of support for working single mothers and their economic struggle to survive, be self-sufficient, and have reasonable housing and decent living conditions.313
The literature extensively addresses the many financial obstacles that survivors face when contemplating leaving abusive relationships.314 While fully discussing states’ neglect to economically support survivors exceeds the scope of this Article, here, I paint in broad strokes the multiple deficiencies in states’ policies that contribute to survivors’ resorting to use of lethal force.
The correlation between poverty and domestic abuse is well documented.315 While access to dignified employment is critical for survivors’ economic security and is a necessary condition for leaving abusive partners, the labor market’s structural inequalities often keep survivors in unstable jobs that do not allow them to become self-sufficient. Financial dependence on abusive partners and lack of sufficient economic opportunities are the main barriers for survivors seeking economic independence and financial security.316
States’ economic policies miserably fail survivors, and often result in their decision to remain in abusive relationships.317 These policies disproportionately affect women in low-paying jobs, particularly minority and Black women.318 Welfare payments are low and limited in duration.319 Lack of affordable housing is yet another area where states fail to support domestic abuse survivors. While fair housing shortage is a general problem in the United States, it proves especially detrimental for survivors, who often find themselves homeless after escaping abusive relationships.320
States’ neglect to adopt adequate measures to prevent domestic abuse and support survivors is intimately connected to their criminal responses against survivors who resorted to lethal violence. The shared responsibility model suggests that states’ failures should have a direct bearing on the structure of their criminal laws. Survivors’ level of culpability for killing abusive partners ought to be relative to states’ shared responsibility and must be measured against states’ insufficient intervention. Acknowledging states’ failures to facilitate necessary support for survivors thus ought to result in mitigating survivors’ criminal responsibility for survival homicide.
3. Mercy’s Role Redux
Mercy’s role in criminal law is deeply contested. Criminal law theorists have long debated the reasons for meting out mercy and its role in the criminal legal system. Some argue that defendants’ suffering as a result of their criminal acts warrants mercy.321 Others suggest that defendants’ history of past abuse, including a “rotten social background,” justifies the exercise of mercy.322 But most commentators posit that exercising mercy belies justice and adhere to the view that mercy has no room in determining criminal responsibility itself at the guilt phase of trial and may only be considered at the sentencing phase.323
Courts today routinely recognize the role for mercy at sentencing in general, and sentencing of domestic abuse survivors in particular.324 Moreover, the notion of mercy provides one of the key justifications underlying the previously discussed New York statute DVSJA that allows for sentencing mitigation for domestic abuse survivors.325 For example, in applying the DVSJA in People v. Smith, the court explicitly acknowledged mercy’s role, stating that the statute “recognizes the severity of an offense while also affording some measure of mercy for the offender.”326 The court continued to stress that “our system also allows for mercy—mercy where [the] defendant herself is a victim, and where her victimization fueled the crime for which she was convicted.”327
Yet, existing legal treatment of survival homicide casts doubt on whether current laws that relegate the role for mercy only to the penalty phase are warranted as a matter of sound policy. Mercy could and should play a more prominent role in determining criminal responsibility itself. The dual status of survivors as both crime victims and offenders328 supports the position that mercy and justice are not contradictory but complementary notions and thus could be simultaneously meted out to domestic abuse survivors. Survivors’ dire predicaments consisting of trauma and abuse warrant a more humane societal response to their plight. Treating survivors more compassionately means that states ought to directly exercise a modicum of mercy toward survivors by amending their penal codes and crafting a designated survival homicide offense that is grounded in mercy. Instead of partially excusing survivors based on their purported mental impairments as existing frameworks currently do, a preferable approach compatible with the shared responsibility model would mandate states to administer to survivors straightforward mercy.
C. Survivors’ Lower Culpability
The second theoretical reasoning for the specialized survival homicide offense centers on survivors’ lower culpability. Survivors’ reduced blameworthiness should mitigate their criminal responsibility where the deceased’s abuse significantly contributed to the killing. This reasoning emphasizes the impact of survivors’ motives on their criminal responsibility and further explains why the proposed offense is compatible with the two prevalent justifications for punishment, namely retributivism and utilitarianism.
Suggesting that survivors’ criminal responsibility should be mitigated might wrongly imply that the survival homicide offense draws on the notion of diminished responsibility.329 Commentators use the term “diminished responsibility” to refer to circumstances where actors’ capacity for making rational choices is diminished due to mental impairments that fall short of satisfying the elements of the insanity defense.330 The position this Article advances, however, must be clearly distinguished from the medicalized diminished responsibility model. Grounding survivors’ lower criminal liability in the notion of “diminished responsibility” is inherently problematic because it suggests that their responsibility should be diminished due to mental impairment, resulting in irrational choices. The proposed survival homicide offense would recognize that survivors’ criminal responsibility should be mitigated without relying on concepts that suggest they are somehow diminished or reduced to anything lesser than autonomous agents with full capacity for rationality. Using the term “diminished” is inconsistent with the rationales underlying the survival homicide offense, which rejects the idea that survivors ought to be excused based on their purported deficient personal traits.331
In contrast with existing frameworks that excuse survivors because of their supposed mental impairments, the model I advance here rejects the notion that survivors’ capacity for making autonomous rational choices is impaired. Instead, this model is grounded on the idea that survivors’ actions are understandable responses to repeated domestic battering, even if they cannot be fully justified. The survival and fear motives make actors’ desperate reactions not only rational responses to cumulative domestic abuse, but also understandable ones.332
Viewed this way, survival homicide should be treated under a sui generis framework that sets a lower gradation for the offense and is distinct from other forms of homicide. Survivors’ acts are qualitatively different from those committed by other defendants in typical murder or manslaughter cases. That is because the abuse that the batterer inflicted on them significantly contributed to their acts, thereby lowering the degree of their moral blameworthiness. The discussion below provides two reasons why survivors’ culpability level is lower.
1. Motive’s Relevance
Motive’s role in determining offenders’ criminal responsibility is contested. Conventional wisdom in criminal law is that motives largely do not matter for the purpose of determining actors’ criminal responsibility.333 This position rests on the assumption that while motives are mostly irrelevant for the guilt phase of trial, they could be taken into account at the sentencing phase.334
Disregarding defendants’ motives or reasons for the lethal act, homicide statutes center instead on whether the defendant acted with a culpable mental state, making intent to kill the key factor in determining the level of their criminal responsibility.335 These statutes fail to recognize the role for motive as a basis for distinguishing between different actors’ culpability.336 For example, actors who purposely kill a terminally ill loved family member out of mercy and compassion are similarly treated, for the purpose of determining criminal responsibility, as actors who kill out of hatred or jealousy.337 Likewise, defendants who kill out of fear and survival motives are similarly treated as those who kill out of nefarious motives, such as pecuniary gain.338
Yet, the dominant assumption that motives are irrelevant at the guilt phase of the trial is not only oversimplified but also descriptively inaccurate. In fact, many laws, including homicide statutes, do incorporate actors’ motives in determining their criminal responsibility.339 One notable example is hate crime laws, where defendants’ motives play an aggravating role at the guilt phase of the trial rather than being relegated to the sentencing phase.340 Other examples include homicide laws where the defendant’s motive aggravates a second-degree to first-degree murder. For example, some states’ penal codes provide that first-degree murder occurs when the killing is driven by the defendant’s motive to prevent a witness from testifying at trial or retaliating against a witness who has testified.341 Similarly, motives may also serve as aggravating circumstances in cases where defendants killed police officers or judges.342
The unifying thread characterizing these statutes is that actors’ motives exclusively serve to aggravate their criminal responsibility. No criminal statute, however, explicitly incorporates actors’ motives as a basis for mitigating their criminal responsibility. If motives are, in fact, relevant for determining actors’ criminal responsibility, a position that the abovementioned statutes clearly embrace, then no principled reason could explain why motives may only increase the level of criminal responsibility but not reduce it. Thus, if motives do play a role as aggravating factors for determining the scope of actors’ criminal responsibility, they could similarly play a role as mitigating factors that reduce criminal responsibility.
Moreover, motives not only affect the scope of actors’ criminal responsibility as a descriptive matter, but they also should shape actors’ criminal responsibility from a normative policy perspective.343 As commentators observe, motives should play a role in evaluating defendants’ blameworthiness, including their specific reasons for committing a homicide.344 Actors’ reasons for killing matter normatively because different reasons affect the degree of moral blameworthiness and thus should also impact the level of their criminal responsibility by mitigating it.345 When degrees of moral wrongdoing are different, criminal law should reflect that difference, and, in fact, it already does precisely that, as the moral significance of lower culpability is currently recognized at the sentencing phase of trial.346
Acknowledging that motives should play a role in determining actors’ criminal responsibility leads to suggesting that domestic abuse survivors’ motives should impact their criminal responsibility for killing abusive partners because the reasons motivating different types of killings are morally distinguishable. Survivors’ moral culpability is lower when the killing was motivated by fear of the deceased and a desire to survive.347 This motive is distinct from common motivations that underlie typical intentional killings, which often stem from involvement in criminal activities like drug trafficking, competition and rivalry between those involved in these activities, as well as jealousy and revenge. In contrast, survivors who kill abusive intimate partners repeatedly report fear and desperation resulting from the ongoing abuse.348 They also report that they felt that they had exhausted all resources and attempts to get help and support to no avail.349
Relatedly, the motive that triggers the killing is critical for distinguishing between different actors based on the distinct level of disregard they manifested for the value of human life. Criminal law places unique emphasis on the value of human life.350 The division between different forms of homicide based on different mental states captures the extent to which the killer disregarded the fundamental value of preserving human life.351 Random killings, motivated by revenge, greed, or rivalry between criminal gangs, arguably manifest the highest form of disregard for the value of human life. For example, actors who are motivated to kill by financial incentives choose to prioritize their personal gains over the victim’s life.352 When balancing the competing values in cases like these, it is clear that the value of the sanctity of human life trumps values such as external personal benefits like greed or revenge.
In contrast, domestic abuse survivors do not manifest such deliberate disregard for the batterer’s life. Both competing interests in survival homicide implicate the value of human life. An actor’s survival act represents a rational choice to prioritize their own life over their batterer’s life precisely because it was the batterer who threatened them with bodily harm. Killing in circumstances of domestic abuse is therefore distinct from killing in any other context because what motivated the act was the survivor’s fear of being killed by the abuser. Recognizing survivors’ desires to live as an understandable response to threats to their own lives is thus consistent, rather than contradictory, with the law’s prioritizing the value of life. Further, incorporating survivors’ motives into the survival homicide offense does not result in complete acquittal of any crime. Instead, the fear and survival motives merely reduce the gradation of the homicide by finding survivors criminally responsible for an offense that is graded lower than manslaughter.
2. Theories of Punishment
States impose criminal liability for wrongdoing to express societal condemnation of the defendant’s act, and since the state intentionally inflicts suffering on the offender, punishment must be justified on some theoretical grounds.353 Voluminous scholarship has been devoted to the theoretical justifications for punishment, aiming to answer criminal law’s key question of why wrongdoers should be punished.354 While it is beyond the scope of this Article to delve deeply into these justifications, suffice it to say that adopting a designated offense for survival homicide is warranted based on the prevailing justifications for punishment.
Traditional justifications for punishment have drawn on retributivism, utilitarianism, or some combination of both.355 Retributivism does not have an agreed-upon meaning, and retributivist theories come in many flavors.356 Broadly speaking, retributivist theories adhere to the principle of “just desert,” under which punishment should be scaled to the individual offender’s level of culpability and the resulting harms of their conduct by taking into account both the seriousness of the offense itself and the personal culpability of the specific actor.357 Additionally, the principle of proportionality places limits on what counts as “just desert” by mandating that an offender’s penalty will be proportional to their individual blameworthiness.358
Current treatment of survival homicide, however, does not align with the retributive notion of just desert because it refuses to distinguish between defendants’ different levels of culpability and distinct motivations. Retributivism’s emphasis on actors’ personal culpability supports the argument that survival homicide defendants’ culpability is lower than that of other homicide defendants.359 The notion of “just desert” dictates that actors’ fears and survival motives carry moral significance that should affect the normative evaluation of their culpability level.360 This notion also buttresses the abovementioned argument that abuse survivors deserve more merciful treatment at the hands of the state, given the trauma they have endured.361
One version of retributivism is expressivism, which posits that punishment signifies an expression of societal disapproval of a criminal act by morally condemning the offender.362 Expressivist theories justify imposing punishment for homicide because the actor has demonstrated that they do not respect the deceased’s moral worth and because their own values regarding the sanctity of human life are wrong.363 Expressivism is the theory that is best suited for recognizing that defendants’ motives should affect their criminal responsibility.364 As Professor Carissa Byrne Hessick succinctly points out, hiring a contract killer warrants greater societal disapproval than killing out of mercy.365 Expressivism justifies differentiating between levels of societal disapproval expressed not only in the reaction to different crimes but also to similar crimes that are triggered by different motives, including homicide offenses.366 Applied in the specific context of survival homicide, expressivism is consistent with the position that homicides that are motivated by fear and survival warrant less societal condemnation than other types of homicide triggered by nefarious motives. Because survival acts are less culpable, expressivist theories would likely justify mitigating domestic abuse survivors’ criminal responsibility.
Furthermore, under expressivist theories, gradations of homicide should be differentiated to conform with the public’s normative intuitions and community justice judgments.367 A survival homicide offense recognizes that survivors who killed domestic abusers should not be labeled and stigmatized as murderers because the societal perceptions about their moral wrongdoing are different than other forms of homicide.368 On the flip side, disentangling survival homicide from the offense of murder also recognizes that murder convictions ought to be reserved for the most morally heinous crimes. Existing frameworks allowing for mitigating sentences of abuse survivors who are convicted of murder arguably undermine the seriousness of a murder conviction because they impose light and disproportional prison terms on actors who are convicted of murder.
Moreover, expressivism would arguably support the adoption of a specialized statute for survival homicide because this offense corresponds to a potential concern that avoiding altogether bringing any criminal charges against abuse survivors who killed domestic abusers might encourage others in abusive relationships to take similar action.369 Yet, far from condoning the killing of domestic abusers as a legitimate course of action, the survival homicide offense retains the strong societal message that resorting to killing remains an act that criminal law explicitly condemns. The expressive message that a conviction of survival homicide will send to the public is that the value of the sanctity of human life is left intact, given the strong message sent by the homicide conviction itself. Merely mitigating survivors’ level of criminal responsibility by adopting a different gradation of the homicide nowhere detracts from this expressive message.
Likewise, a survival homicide offense is also justified based on utilitarian rationales. “[M]odern criminal law represents an explicit legislative decision to prioritize crime control over doing justice.”370 Utilitarianism prioritizes specific and general deterrence and incapacitation of offenders as mechanisms for crime control, namely prevention of future harm and reducing recidivism.371
Regarding specific deterrence, survival homicide defendants are more capable of being deterred than other homicide offenders. From a crime control perspective, survivors who specifically target domestic abusers are not dangerous to society at large, and their risk level and likelihood of recidivism are low. Further, a crime prevention model may rely on probability estimates and evidence-based risk assessment instruments to determine individual offenders’ level of risk and likelihood of recidivism.372 Risk assessment tools are capable of determining whether an individual survivor poses any specific risk to the community that justifies their incapacitation. Absent such risk, however, incapacitating survivors is deemed unjustified under utilitarian theories.
Regarding general deterrence, utilitarians might posit that even if specific deterrence is unwarranted in individual survival homicide cases, it is still necessary to send a deterring message to the community at large that killing domestic abusers ought to remain criminalized similarly to other types of intentional killings. Conceding this argument, however, should not necessarily lead to rejection of the proposed offense. From a utilitarian perspective, to justify punishment, its overall benefits must outweigh the enormous costs that punishment inflicts on defendants.373 While engaging in such cost-benefit calculus, utilitarians would weigh the extensive harm that murder or manslaughter convictions entail not only on the individual abuse survivor but also on their families and entire communities. Since survival homicide defendants are often mothers to young children, sentencing them to long periods of imprisonment pursuant to murder or manslaughter convictions in itself imposes a significant cost both to the individual and to society at large and therefore must be factored into the societal policy decision about the scope of their criminal responsibility.374
D. Doctrinal Implications
Having identified the theoretical basis underlying the proposed survival homicide statute, the discussion below considers its doctrinal implications by laying out its elements, scope, and limits.
1. A Screening Procedure
The proposed model aims to direct prosecutors away from bringing murder charges against abuse survivors by guiding them toward prosecuting survivors under the designated statute. It is plausible to surmise that a survival homicide law, in itself, would naturally incentivize some prosecutors to opt for the specialized statute, which provides a much-needed doctrinal basis for charging survivors with a crime other than murder or manslaughter. Progressive and reformist prosecutors, who believe in the need for reforming the overly harsh criminal legal system,375 would likely take seriously this legislative direction, which is clearly expressed in the legislature’s intent, by voluntarily bringing survival homicide charges when evidence in police investigation files suggests that domestic abuse significantly contributed to the defendant’s act.
But of course, while some prosecutors would voluntarily adhere to this legislative direction, others would not. Prosecutors harboring more “tough on crime” agendas would likely refuse to prosecute survivors under the specialized survival homicide statute and instead continue to bring murder charges against them. These prosecutors would have to be further nudged into revising their existing practices concerning the prosecution of abuse survivors. A procedural screening mechanism in the form of a motion to dismiss the murder charge offers such prodding.
To prevent prosecutors from circumventing the legislature’s intent, the survival homicide statute must incorporate a screening procedure that would allow an abused defendant who was charged with murder, notwithstanding substantial evidence of prior domestic abuse established by police investigation, to file a motion to dismiss the charge for insufficient evidence. Such a motion would require the court to schedule a preliminary hearing where the judge would make factual determinations about whether the defendant had been subjected to substantial abuse by the deceased and whether this abuse significantly contributed to the homicide. Once the defendant meets their initial burden to produce evidence to establish these facts, the burden would shift to the state to establish, by clear and convincing evidence, that there is sufficient evidence to support the murder charge and that the case does not satisfy the elements of the specialized survival homicide statute.376
Considering a preliminary motion where judges would determine the nature and severity of the criminal charges against abuse survivors requires grappling with the discretionary nature of such procedure and the difficulties stemming from reliance on, and having faith in, individual judges to properly exercise their discretion. After all, there is a broad consensus that judicial decision-making is shaped, at least to some extent, not only by judges’ backgrounds and personal experiences, but also by their own biases, prejudices, and stereotypes, as well as their moral beliefs and personal sets of values.377 To be clear, relying on judicial discretion to determine the nature of survivors’ criminal charges arguably raises some tension with the previously discussed critique concerning sentencing judges’ enormous discretion to determine appropriate punishments.378 Yet, the proposed survival homicide statute significantly alleviates this tension.
To begin with, at least some measure of judicial discretion is an inevitable feature of a well-functioning judiciary.379 It can hardly be contested that a mechanical and bureaucratic vision of judicial decision-making, which leaves no room for tailoring decisions to individual cases’ specific circumstances, is unwarranted. Moreover, judicial decision-making involves resolving conflicting interests that are in tension with one another.380 The exercise of judicial discretion is therefore a built-in feature of the judiciary role.381
Furthermore, reliance on judicial discretion to dismiss murder charges adds a necessary layer of protection against the exercise of improper prosecutorial discretion regarding what charges to bring in survival homicide cases. The problems associated with prosecutors’ exercise of unlimited, unstructured, and unreviewable discretion in deciding whether and what charges to bring are well documented in the literature.382 A motion to dismiss murder charges provides a much-needed independent judicial review mechanism to ameliorate the largely inconspicuous and unreviewable nature of prosecutorial discretion.383 The goal of the judicial screening procedure is to prevent prosecutors from eviscerating the legislature’s intent that abuse survivors would be prosecuted with a specialized crime rather than with murder or manslaughter.
Conceding that some degree of judicial discretion remains necessary under the survival homicide statute is consistent with the proposed model. But judicial discretion must be clearly structured by providing judges with guidance on how to exercise their discretion. The potential advantages of judicial discretion are a matter of degree: the more judicial discretion is guided by explicit legislative direction, the less risk that judicial decision-making would be excessively affected by judges’ personal experiences, including from their own prejudices, biases, and stereotypes.384
What distinguishes potentially problematic exercises of judicial discretion from the proposed model is that in the latter case, explicit legislative direction structures judges’ exercises of discretion in their decisions to dismiss murder charges and replace them with survival homicide charges.
Incorporating statutory guidelines into the survival homicide offense would effectively structure judicial discretion. To guide courts’ discretion at the preliminary hearing, a survival homicide offense would include a non-exhaustive list of factors judges would have to consider when deciding whether the defendant should be charged with survival homicide instead of murder.385 Judges will be required to make a preliminary finding that the prior abuse significantly contributed to the defendant’s criminal act. Such statutorily defined factors will guide judicial discretion in a way that is currently missing from existing sentencing mitigation schemes. Additionally, trusting judges to exercise their judicial discretion in a way that aligns with the legislature’s intent is preferable to expecting juries to adhere to the statutorily defined factors, given a host of biases, prejudices, and stereotypes that often affect jurors’ decision-making.386 Relevant statutorily defined factors will include social framework evidence, as previously discussed, to help the judge contextualize the defendant’s act.387 For example, such factors would include survivor-oriented circumstances, such as survivors’ cultural norms and social backgrounds, and the availability, or lack thereof, of sufficient financial resources to enable leaving the abusive relationships, as well as deceased-related factors, such as their ownership of a firearm.
2. The Offense’s Elements
The survival homicide offense would have distinct elements that differ from existing elements of both self-defense and manslaughter statutes. Instead, its elements draw on New York’s DVSJA, discussed earlier in this Article.388 Yet, it would modify some of this statute’s requirements to address its shortcomings.389 Here, I outline survival homicide’s main features, leaving for the Appendix the more elaborate model statute that legislatures could readily consider adopting.
The survival homicide offense would consist of two key elements: First, the defendant or their children were subjected to substantial physical, sexual, or cumulative psychological abuse. For the purpose of the survival homicide statute, cumulative psychological abuse largely consists of batterers’ engagement in intimidation tactics by threatening to inflict future bodily harm on defendants or their children. The second element would require proof that such abuse significantly contributed to the homicide (significant contributing factor).
The first element responds to the concern that emphasizing the threat of inflicting immediate lethal harm, as existing self-defense laws require, misses the important dimensions of domestic abusers’ ongoing intimidation and threats toward survivors.390 As previously discussed, Evan Stark’s work on coercive control highlights the full range of tactics that batterers use to control their intimate partners. This includes various forms of intimidation, which instill fear in survivors’ lives through explicit and implicit threats to inflict physical harm, surveillance, and degradation.391
Concededly, not all forms of coercive control will satisfy the proposed element of “substantial cumulative psychological abuse.” For example, coercive control also includes economic control, where abusers restrict survivors’ access to necessities of daily living and deprive their financial resources.392 But economic control, standing alone, unaccompanied with additional forms of intimidation and threats to inflict physical harm in the future, will be deemed insufficient to meet the “substantial cumulative psychological abuse” element.
Yet, the proposed survival homicide offense explicitly recognizes that substantial cumulative non-physical domestic abuse may also lead to survival homicide when it includes various forms of intimidation. When domestic abusers engage in patterns of behaviors that continuously threaten survivors by placing them or their children in fear of physical harm at some unspecified time in the future, these may amount to “substantial cumulative psychological abuse” even when they are not accompanied by physical violence.393 The proposed offense recognizes that abusers’ engagement in patterns of intimidation and cumulative threats to survivors’ lives may affect survivors in a way that is equally traumatic to physical and sexual abuse. Further, the “substantial abuse” element puts a premium on the cumulative effects of domestic abuse in a way that both expands and contracts the scope of the statute. It recognizes the combined effects of physical, sexual, and psychological abuse without unduly emphasizing the first two. At the same time, to ensure that the offense is not over-inclusive, this element also limits the applicability of the statute by requiring a repeated pattern of behavior, which would exclude from its scope isolated, single incidents of abuse.
Next, the “significant contributing factor” element recognizes that the cumulative abuse that survivors endure is not separate from, but instead “inextricably interlinked” with, their criminal acts.394 This does not mean, however, that a causal connection between the abuse and the lethal act is required. The offense’s elements eliminate the causal nexus between the two, which is required by self-defense’s elements, by replacing it with the “significant contributing factor,” under which the abuse only needs to be a significant contributing factor, rather than a causal one, to the defendant’s criminal behavior.395
It is important to clarify what the survival homicide offense does not require to ensure that its applicability is not unjustifiably limited. The “significant contributing factor” requirement acknowledges that the defendant’s criminal act could be motivated by any number of factors and that mixed motives may suffice for applying the statute. This means that the defendant does not need to establish that the abuse they “suffered was the exclusive, or even the overriding factor” that motivated their criminal conduct.396 Likewise, the “significant contributing factor” element recognizes that survivors may suffer abuse not only from the deceased but also from prior intimate partners, as well as other family members.397 The term “significant contribution” is sufficiently broad to acknowledge the trauma endured by survivors from more than just one abuser, as long as it was largely the deceased’s abusive conduct that significantly contributed to the homicide.
Further, prevalent patterns of domestic abuse typically include evidence of severe, multiple, variable, repetitive, and prolonged abuse.398 But since the survival homicide offense departs from self-defense statutes, it does not require that a survivor be in the throes of an attack or that one be imminent. Instead, the survivor’s conduct would be evaluated in light of the cumulative effect of the abuse.399 “[R]elationship duration or battering frequency” are largely not considered “good yardsticks to determine whether” the abuse significantly contributed to the homicide.400 Therefore, the “significant contributing factor” does not require that the abuse be long-lasting in terms of duration, as it is difficult to speculate based solely on the duration of the relationship what effect such abuse had on survivors.401 Finally, the offense dispenses of a physical proximity requirement between the defendant and the abuser. It acknowledges that in circumstances where the parties have children together, repeated threats to physically harm survivors and their children may continue post-separation.402
3. Non-Carceral Penalty Presumption
One of the main goals of a designated statute for survival homicide is avoiding the unduly harsh sentences that accompany manslaughter convictions by imposing alternative types of punishment on defendants who are convicted of survival homicide. As previously discussed, courts and legislatures disagree about what type of sentence qualifies as “unduly harsh” for domestic abuse survivors convicted of any crimes.403
Non-carceral penalty is an integral component of the survival homicide offense as it is the only sentence that would not be unduly harsh for these traumatized defendants. Ample studies establish that the majority of incarcerated women are survivors of physical, sexual, and psychological abuse, which produce multiple forms of trauma, including, among other types, depression, anxiety, and post-traumatic stress disorder.404 These studies further establish that incarceration in itself is a traumatizing experience, thus exacerbating survivors’ already existing traumas.405
Criminal statutes should conform with these studies by implementing trauma-informed approaches.406 Adopting trauma-informed approaches for survival homicide defendants means incorporating a statutory presumption in the designated survival homicide statute under which any term of imprisonment would be presumed “unduly harsh.” This presumption of a non-carceral penalty aligns with the premises underlying the shared responsibility model for survival homicide, which recognizes states’ partial responsibility for survivors’ acts. A non-carceral punishment presumption is a necessary component of alternative sentencing schemes, which draw on the notion of alternatives to incarceration (ATIs) and are aimed at abolishing states’ carceral practices that retraumatize already traumatized survivors.407
Embracing ATIs as the presumed punishment for survival homicide defendants is premised on the idea that the link between a homicide conviction and lengthy imprisonment is not an inevitable one.408 One of the problems characterizing the existing criminal legal system is unnecessarily conflating incarceration with punishment.409 This consolidation fails to recognize that criminalization of survival homicide and sentencing survivors implicate two separate questions, the first being whether domestic abuse survivors who killed abusers ought to be convicted of any crime, and if so, what should be the appropriate level of their criminal responsibility. An entirely separate question, however, concerns what sentence is appropriate once these survivors have already been convicted.
Existing sentencing schemes fail to clearly distinguish between punitive and carceral sanctions, and commentators mostly lump them together as “carceral and punitive responses.”410 Yet, as I have argued elsewhere, the law could and should separate punitive sanctions from carceral ones.411 A meaningful path toward reversing the effects of mass incarceration consists of adopting policies that decouple criminalization decisions and their punitive implications from incarceration policies.412 Society may reaffirm the message that survival homicide is a blameworthy act without imposing harsh terms of imprisonment. Domestic abuse survivors could be convicted of the crime of survival homicide yet still receive non-carceral penalties. ATIs accomplish criminal law’s expressive message that taking lives absent a right to self-defense is wrong, while simultaneously acknowledging that the same societal message may effectively be conveyed without imprisonment.
Perspectives from international law buttress this position as the Nordic model of punishment offers insight on using community sanctions in lieu of imprisonment.413 Under this model, community sanctions consist largely of five types of ATIs: conditional or suspended sentence, probation or supervision, community service, treatment orders, and electronic monitoring.414
American courts and legislatures are gradually beginning to recognize that ATIs might be more appropriate for survival homicide defendants. Take, for example, the New York court decision in People v. D.M. concerning resentencing an abuse survivor who was originally sentenced to fifteen years of imprisonment for manslaughter.415 The court found that the original sentence was “unduly harsh.”416 Applying the DVSJA, it held that a period of post-release supervision was appropriate and necessary for the defendant’s successful re-entry into society.417 This decision takes an innovative approach to sentencing, which de-emphasizes carceral responses and prioritizes rehabilitation. It recognizes the court’s duty to “take a more compassionate, problem-solving approach rather than one driven by retribution, and highlights the goals of rehabilitation and ‘successful and productive reentry and reintegration into society.’”418 It further clarifies that “[t]he goals of public safety, deterrence and rehabilitation are not achieved by a lengthy sentence of incarceration for an individual whose criminal conduct was borne out of trauma from severe domestic violence.”419 For survivors who continue to suffer the traumatic effects of the abuse, it continues, since even supervised release could be perceived as mimicking incarceration.420
4. Excluding Collateral Consequences
For many domestic abuse survivors, the collateral consequences that routinely attach to felony criminal convictions could be even more devastating than conviction itself. Even if survivors are not convicted of murder but of manslaughter instead, such convictions pose serious obstacles for reentry upon release.421 Sentencing mitigation statutes, such as New York’s DVSJA, do not resolve these hurdles because a host of collateral consequences, including deportation, flow from manslaughter convictions.422
To begin with, immigration laws provide an extensive list of deportable offenses which allow removing noncitizens from the United States upon conviction.423 Deportable offenses include, among others, any conviction of aggravated felony, as well as conviction of crimes of moral turpitude, defined as conviction of any crime for which a sentence of one year or longer may be imposed.424 The Minnesota Supreme Court’s decision in Shefa v. Ellison discussed earlier poignantly illustrates the ways in which collateral consequences that accompany manslaughter convictions result in uniquely dangerous implications for survival homicide defendants.425
The collateral consequences of punishment, however, include not only the risk of deportation but also other wide-ranging consequences applicable to all survival homicide defendants, not just noncitizens. These include, among others, “temporary or permanent ineligibility for public benefits, public or government-assisted housing, [as well as for] federal student aid[,] various employment-related restrictions[, and] . . . civic disqualifications such as felon disenfranchisement and ineligibility for jury service.”426
The problem of collateral consequences that stem from a homicide conviction cannot simply be resolved by adopting an explicit provision in the survival homicide statute, which provides that conviction of this offense will not trigger any collateral consequences because of the Constitution’s Supremacy Clause.427 Amending state laws to exclude the application of any federal collateral consequences will result in preemption.428 For that reason, adopting a survival homicide offense is insufficient, standing alone, for ensuring equitable treatment for survival homicide defendants.
Yet, two alternative legislative solutions could be adopted to avoid the collateral consequences that directly flow from felony convictions. First, automatic expungement of survival homicide convictions would effectively resolve this problem.429 Acknowledging the far-reaching implications of a host of collateral consequences for previously convicted people, many states in recent years have amended their laws to include expungement provisions.430 Expungement is an umbrella term that is used to refer to various measures that allow for record clearing, sealing, or setting aside criminal convictions so the collateral consequences of a conviction would not apply.431
Given the far-reaching implications that collateral consequences carry for convicted survivors, adopting a designated survival homicide offense ought to be supplemented with specific language that authorizes the expungement of a survival homicide defendant’s criminal record. Such expungement is necessary for ensuring that the conviction of a survival homicide offense will not trigger any of the collateral consequences that normally attach to felony convictions.
Second, the survival homicide offense could incorporate the notion of clemency to avoid the inevitable collateral consequences stemming from a homicide conviction. States’ clemency power embodies “amnesty, pardon, commutation, and reprieve.”432 A few states have already adopted statutory provisions that are specifically targeted toward abuse survivors.433 Survival homicide statutes could include an additional provision that requires state governors to grant automatic pardons or commutations to those convicted of survival homicide.434 Without these additional measures, the legislative intent underlying the designated offense will be eviscerated because the applicability of collateral consequences circumvents its goal.
E. Responses to Critiques
Proposing that state legislatures craft a new offense to prosecute survival homicide cases will likely face staunch pushback. Opponents will raise a host of objections from multiple directions. I have already addressed earlier one line of critique concerning exceptionalism for domestic abuse survivors as opposed to other victims of non-domestic abuse.435 Below, I address additional arguments that criticize my choice to focus solely on survivors who killed abusive family members and exclude domestic abuse survivors who committed other crimes beyond intentional killing.
1. Underinclusiveness
Critics who agree that exceptionalism for domestic abuse survivors is justified will likely argue that the survival homicide statute is underinclusive and reject the idea of carving out a criminal statute applicable only to survivors who killed abusive family members. To them, such a statute is unwarranted because it undermines domestic abuse advocates’ broader abolitionist agenda that rejects altogether the criminalization of all domestic abuse survivors who become involved with the criminal legal system after committing a host of crimes, often at the direction of abusive family members.436 These include felony murders that result in killing third parties, as well as committing other crimes beyond homicide, such as drug crimes and crimes against property.437 Narrowly focusing on survivors who kill domestic abusers arguably detracts from efforts to provide a more equitable treatment to all domestic abuse survivors by decriminalizing additional acts they committed as a result of the abuse, including crimes against third parties.
While I am cognizant of this concern, strong arguments support carving out a separate statute for survival homicide. I have already addressed some of these arguments, including political feasibility, while discussing whether domestic abuse exceptionalism was justified.438 Here, I add additional arguments to explain my choice to focus solely on domestic abuse survivors who intentionally killed abusive family members.
First, the distinct problem of survival homicide currently presents a more urgent need for legislative reform. That is because, in many jurisdictions, murder convictions result in mandatory minimum sentences, meaning that sentencing judges’ discretion to treat defendants more leniently is statutorily constrained.439 By contrast, conviction of other crimes provides sentencing judges with more discretion to tailor defendants’ sentences to the specific circumstances underlying their offense, including prior domestic abuse.
Second, political feasibility concerns once again support carving out a specialized statute specifically targeting the distinct circumstances where domestic abuse survivors kill abusive family members. Some commentators support fully abolitionist approaches to the broader problem of domestic abuse survivors who become involved in the criminal legal system in multiple ways.440 Yet, a thoroughly abolitionist response to all crimes committed by domestic abuse survivors is not a feasible legislative action these days. Specifically targeting survival homicide as a problem that warrants legislative reform is a preferable strategy because legislatures are unlikely to adopt a wholesale decriminalization or decarceration for all crimes that survivors of any past abuse commit, including against third parties. It is far more likely that legislatures will be responsive to amending just a narrow category of homicide statutes.
Furthermore, incremental, piecemeal legislation often proves a prudent and realistic policy choice. As Professor Tribe has explained: “underinclusive” or “piecemeal legislation is a pragmatic means of effecting needed reforms, where a demand for completeness may lead to total paralysis.”441 Courts further note that legislatures have wide discretion in attacking social ills, and a state may “direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses,” and also that “[f]ailure to address a certain problem in an otherwise comprehensive legislative scheme is not fatal to the legislative plan.”442
Additionally, implementing a fully abolitionist approach in practice means prosecutorial immunity, namely, that prosecutors would avoid altogether bringing any criminal charges whenever evidence in the police file suggests a history of abuse. This approach is especially problematic given the fierce criticism mounted against expansive self-defense laws that embrace immunity from investigation and prosecution, such as “stand your ground” provisions, which provide defendants immunity from prosecution and dismissal of all charges.443 Initial dismissal of all charges against domestic abuse survivors charged with any crimes essentially mimics this troublesome framework and perpetuates its disconcerting implications. Consistency dictates that denouncing laws that provide immunity from prosecution to men claiming self-defense in male-on-male confrontational encounters should, by the same token, reject outright dismissal of any homicide charges against domestic abuse survivors.
Finally, the proposal that legislatures pass survival homicide laws is sympathetic to other legislative reforms that would mitigate survivors’ criminal responsibility in additional contexts where past abuse and trauma’s effects create criminogenic influence that contributes to criminality.444 The proposed piecemeal approach to reforming the legal treatment of abuse survivors opts for taking incremental legislative amendments that may open the door for gradually adopting additional statutory revisions to address other circumstances where abuse survivors turn into criminal defendants.445 Carving out a separate offense for survival homicide is merely a first step toward broader reforms, although further discussing the scope and limits of such additional reforms exceeds the scope of this Article.
2. Overinclusiveness
Other critics will likely reject a survival homicide offense on overinclusiveness grounds. Some might argue that the offense’s elements are vague and overbroad, thus failing to differentiate between cases where domestic abuse significantly contributed to the killing and those where defendants killed family members for reasons unrelated to abuse such as pecuniary gain. Concededly, the terms “substantial cumulative abuse” and “significant contributing factor” are somewhat ambiguous because the many forms of domestic abuse do not easily lend themselves to more precise statutory definitions. But such ambiguity is an inevitable feature of many other statutory terms.446 Courts routinely engage in statutory interpretation of equally ambiguous language, and have upheld their constitutionality against vagueness challenges.447 Similar to other statutory interpretation tasks, courts could construe the offense’s terms in light of the legislature’s intent and prior judicial interpretations in domestic abuse cases, which have considered the relationship between defendants’ enduring a pattern of serious cumulative abuse and their crimes.448
3. Offense or Defense?
Additional criticism will likely suggest that mitigating survivors’ criminal responsibility should draw on expanding the scope of existing defensive claims rather than adding yet another offense to the books. Designating a separate offense for survival homicide might also be perceived as redundant, given the availability of partial defenses that already mitigate the level of survivors’ criminal responsibility when their acts are not fully justified on self-defense grounds.449
Yet, as previously noted, the main drawback with partial excuses like imperfect self-defense is that their application results in manslaughter convictions, which are accompanied by unduly harsh sentences, even if less draconian than life sentences.450 Partially excusing survivors thus leaves intact their inequitable legal treatment. The specialized offense offers a superior framework to merely expanding the scope of existing defenses because it not only mitigates survivors’ criminal responsibility below the manslaughter level, but also includes a presumption of non-carceral penalty as well as excluding any collateral consequences upon conviction.
Likewise, the main goal of conceptualizing a mitigated criminal responsibility model for domestic abuse survivors within an offense rather than a defense framework is to craft a lower baseline offense for prosecuting survival homicide. The proposal aims to prevent prosecutors from bringing murder charges as a baseline offense against survival homicide defendants and leaving the question of mitigated criminal responsibility to establishing defensive claims. By contrast, the survival homicide statute would require prosecutors to initially prosecute survivors under the lower-graded baseline offense.
Relatedly, this position also responds to another potential concern that the proposed offense might harm rather than benefit domestic abuse survivors who would be deprived of the opportunity to be fully acquitted of any crime on self-defense grounds.451 Yet, nothing in the proposed model suggests this is a viable concern because the designated offense will supplement rather than subtract from survivors’ potential claims. Its goal is to mitigate the criminal responsibility of defendants whose only other viable recourse would have been partial mitigation rather than complete acquittal. Defendants will remain free to try to prove a right to self-defense and complete acquittal of all crimes.
Conclusion
“I had to leave him or kill him, and I wasn’t ready to kill him.”452
—Dollree Mapp, a survivor of both police and domestic abuse
Every student of Criminal Procedure is familiar with Mapp v. Ohio, the landmark Supreme Court decision which applied the exclusionary rule to the states.453 In 1957, Ms. Dollree Mapp, an African American woman in her thirties, stood up against police abuse of power and refused to let police officers into her house to conduct a warrantless search. Far less known, however, is Mapp’s personal background story and the additional abuse she endured by her husband—she was previously married to Jimmy Bivins, a renowned boxer at the time, who she had accused of beating her and eventually divorced.454 Years later, she said that she had chosen to leave her abusive husband because if she had not done so, she would have resorted to killing him.455 Mapp was a bold, strong-willed survivor, who actively resisted both police abuse and domestic abuse. Her story further illustrates that different survivors have distinct reactions to abuse; some are passive and submissive, others fight back with violent acts of their own, and still others are able to leave abusive relationships. While sixty-five years have passed since Mapp’s case, domestic abuse survivors today, and particularly those who fight back in response to their victimization, continue to face legal obstacles when they push back and actively fight back against the abuse.
Survival homicide is far from being a new phenomenon, and voluminous literature has been devoted to proposing potential solutions to this problem.456 Yet, despite four decades of vigorous efforts by domestic abuse advocates and scholars to reform the criminal legal system’s treatment of abuse survivors, the problem is anything but moot. In fact, the more things change, the more they stay the same. Reform efforts have taken hold in many areas of criminal law and enforcement, but they have stopped short of amending homicide offenses, including among others, recognizing the need for a specialized offense to prosecute survival homicide.
This Article has sought to enlist state legislatures in promoting social reform regarding domestic abuse survivors. Reforming the legal treatment of survival homicide requires making public policy choices, which balance competing public policy interests, a role that is naturally within the province of legislatures. Legislatures have the authority to pass laws that meet pressing social problems, and routinely wade into difficult and polarizing social issues, including among others criminal justice reforms.457 Advocacy and public interest groups seeking reform in the treatment of abuse survivors need to seize the current political moment where there is increasing support for reforming the criminal legal system to effectively engage state legislatures in crafting legislative reforms.458 Legislatures are superior to the judiciary in the making of public policy and have the exclusive authority to do so.459 They are better suited to consider the extensive social science research that is pertinent to understanding the broad public policy issues surrounding domestic abuse that arise in judicial proceedings, yet the judiciary is unable to fully address.460
Capitalizing on advocates’ and commentators’ broad agreement that a host of inequities result in unfair treatment of criminal defendants, this Article has called for reconceptualizing survival homicide as a separate crime that carries non-carceral penalties and does not trigger any collateral consequences upon conviction. In proposing a conceptual shift from existing sentencing mitigation frameworks to a mitigated responsibility model, I hope to ignite debates over additional legislative amendments. Such broader reforms would revise overly harsh criminal prohibitions by recognizing that some offenders’ culpability is lower and therefore the law should correspond by mitigating their criminal responsibility.
As this Article concedes, there are additional categories of abused victims who have become involved in the criminal legal system as offenders beyond the context of domestic abuse.461 While commentators have long proposed to craft an excusatory framework to mitigate the criminal responsibility of abused defendants, to date this idea has failed to take hold, as neither state legislatures nor courts seriously considered it.462 But embracing a mitigated responsibility model for domestic abuse survivors would open the door toward additional statutory reforms as the time is ripe for considering more merciful treatment of criminal defendants.
To date, the vast majority of proposals to reform the overly harsh criminal legal system focus on police reforms as well as reforming prosecutorial practices and policies.463 But a thorough commitment to reforming the flawed criminal legal system requires overhauling not only criminal enforcement policies and practices but also extensive revisions in the definition of substantive criminal offenses. Of course, this move requires state legislatures’ appetite for reforms that are aimed toward more lenient treatment of offenders, which arguably is currently not politically feasible, as legislatures typically adhere to the public’s punitive demands for being “tough on crime.” Yet, political feasibility might evolve pursuant to political pressures from constituents who have suffered severe harm by the criminal legal system. Shifting societal perceptions about the desirability of a more merciful legal treatment of domestic abuse survivors would ultimately result in legislatures adhering to demands for leniency for various types of abuse survivors-turned-criminal defendants. Survival homicide is merely the beginning, not the end of such reform.
** See attached PDF for Article including Appendix **