By Bill McVay
 > If two men get into a fight at a tavern, does the one who's
 > on the losing side of the fight have the right to pull a gun and
 > shoot and kill the other?
I've been off the echo for a while and missed the original post. but, one of the reasons for my absence is directly related to this thread. I was called as an expert witness in an attempted murder trial. One of my clients, a woman who had been battered for 27 years, stabbed her husband during an attack and was subsequently charged with attempted murder (and the included charge, aggravated assault).

As part of the preparation for the trial, the defense attorney provided me with material on R. vs LAVALLEE, a murder case where a battered woman shot the abuser _in the back of the head_ while he was leaving the room. This case eventually reached the Supreme Court of Canada where Lavalle was found not guilty be reason of self defense.

Two of the legal points in the Lavalle case were: "The first is the temporal connection connection between the apprehension of death or grievious bodily harm and the act allegedly taken in self-defense. Was the appellant `under reasonable apprehension of death or grievious bodily harm' from Rust as he was walking out of the room? The second is the assessment in the magnitude of the force used by the accused. Was the accused's belief that she could not `otherwise perserve herself from death or grievious bodily harm' expect by shooting the deceased based `on reasonable grounds'?

[material deleted]

The court then went on to quote from a U.S. case, saying:

I find the case of _State vs Wanrow_, 559 .2d 548 (1977), helpful in illustrating how the factor of gender can be germane to the assessment of what is reasonable. In _Wanrow_ the Washington Supreme Court addressed the standards by which a jury ought to assess the reasonableness of the female appellant's use of a gun against an unarmed intruder. [material deleted] The court first observed, at p. 558, that `in our society women suffer from a conspicuous lack of access to training in and the means of developing those skills necessay to effectively repel a male assailant without resorting to the use of deadly weapons.' Later it found that the trial judge ERRED in his instructions to the jury by creating the impression that THE OBJECTIVE STANDARD OF REASONABLENESS TO BE APPLIED TO THE ACCUSED WAS THAT OF AN ALTERCATION BETWEEN TWO MEN. (emphasis mine) At page 559, the court makes the following remarks which I find apposite to the case before us:

"The respondent was entitled to have the jury consider her actions in the light of her own perceptions of the situation, including those perceptions which were the product of our nation's `long and unfortunate history of sex descrimination.' Until such time as the effects of that history are eradicated, care must be taken to assure that our self-defense instructions afford women the right to have their conduct judged in light of the individual physical handicaps which are the product of sex descrimination. To fail to do so is to deny the right of individual women involved to trial by the same rules which are applicable to male defendants."

 > If two men get into a fight at a tavern, does the one who's
 > on the losing side of the fight have the right to pull a gun and
 > shoot and kill the other? If he was not absolutely convinced that he
 > was going to be killed, should he be granted clemency because it is
 > within the realm of possibility that if one gets into a fight, one
 > might possibly be killed?
 > If a married couple get into a fight and one hits the other
 > in the face, does the other have sufficient cause to get a gun or
 > knife and blow the other away?
"It will be observed that s. 34(2) (a reference to the Criminal Code of Canada relating to self-defense) does not actually stipulate that the accused apprehend IMMINENT (emphasis in original) danger when he or she acts. Case law has, however, read that requirement into the defense: [case quotes deleted]. The sense in which `imminent' is used conjures up the the image of `an uplifted knife' or a pointed gun. The rational for the imminence rule seems obvious. The law of self-defense is designed to ensure that the use of defensive force is really necessary. It justifies the act because the defended has reasonably believed that he or she had no alternative but to take the attacker's life. If there is a significant time interval between the original unlawful assault and the accused's response, one tends to suspect that the accused was motivated by revenge rather than self-defense. IN THE PARADIGMATIC CASE OF A ONE-TIME BARROOM BRAWL BETWEEN TWO MEN OF EQUAL SIZE AND STRENGTH, THIS INFERENCE MAKES SENSE. (emphasis mine as it relates directly to your example) How can one feel endangered to the point of firing a gun at an unarmed man who utters a death threat, then turns his back and walks out of the room? One cannot be certain of the gravity of the threat or his capacity to carry it out. Besides, one can always take the opprotunity to flee or call the police. If he comes back and raises his fist, one can respond in kind if need be. These are the tacit assumptions that underlie the imminence rule."

[Material deleted which then points out the fallacies of these assumptions as they relate to battered women. The major points:

1. The long time duration of the violence increases the fear during any single event over what one might expect in an isolated instance between two strangers.

2. The battered wife's ability to predict violence and the likely level of violence due to her long experience with the abuser, i.e, unlike an incident between strangers, there is an element of predictability in family violence that is lacking in other situations.

3. The inability of the battered spouse to walk away from the situation.

4. The historic ineffectuallity of the police in cases of family violence and wife battering.]

"Even accepting that a battered woman may be uniquely sensitized to danger from her batterer, it may yet be contended that the law ought to require her to wait until the knife is uplifted, the gun pointed or the fist clenched before her apprehension is deemed reasonable. This would allegedly reduce the risk that the woman is mistaken in her fear, although the law does not require her fear to be correct, only reasonable. In response to this contention, I need only point to the observation made by Hubbard J.A. that the evidence showed that when the appellant and Rust physically fought the appellant `invariably got the worst of it.' I do not think it is an unwarranted generalization to say that due to their size, strength, socialization and lack of training, women are typically no match for men in hand-to-hand combat. The requirement imposed in _Whynot_ that a battered woman wait until the physical assault is `underway' before her apprehensions can be validated in law would, in the words of an American court, be tantamount to sentencing her to `murder by installment': State v. Gallegos, 719 P.2d 1268 (N.M. 1986), at p. 1271. I share the view expressed by Willoughby in `Rendering Each Woman Her Due: Can a Battered Woman Calim Self-Defense When She Kills Her Sleeping Batterer' (1989), 38 Kan. L. Rev. 169, at p. 184, that `society gains nothing, except perhaps the additional risk that the battered woman will herself be killed, because she must wait until her abusive husband instigates another battering episode before she can justifiably act'.

[material deleted which discusses three theories of why battered spouses stay with their batterer. They include Walker's Cycle of Violence theory, Ewing' Traumatic Bonding theory, and Seligman's Learned Helplessness.]

"I emphasize at this juncture that it is not for the jury to pass judgement on the fact that an accused battered woman stayed in the relationship. I would also point out that traditional self-defense doctrine does not require a person to retreat from her home instead of defending herself: R. v. Antley (1963), 42 C.R. 384 (Ont.C.A.) A man's home may be his castle but it is also the woman's home even if it seems to her more like a prison in the circumstances.

[material deleted]

"Obviously the fact that the appellant was a battered woman does not entitle her to an aquittal. Battered women may well kill their partner other than in self-defense. The focus is not on who the woman is, but on what she did. In `The Meaning of Equality for Battered Women Who Kill Men in Self-Defense' (1985), 8 Harv. Woman's L.J. 121, at p. 149, Phyllis Crocker makes the point succinctly:

`The issue in a self-defense trial is not whether the defendant is a battered woman, but whether she justifiably killed her husband. The defendant introduces testimony to offer the jury an explanation of reasonableness that is an alternative to the proecution's sterotypic explanations. It is not intended to earn her the status of a battered woman, as if that would make her not guilty.'"

[rest of material deleted]

There you have it, Mike, the best legal thinking I have available on the use of self-defense as an argument for the aquittal of battered women facing charges of assault, aggravated assault, attempted murder, and murder of her batterer. In particular it refutes the idea that the legal paradigm of two strangers in a barroom brawl is applicable in evaluating a battered woman's use of the defense of self-defense in such cases.

I'll admit that attempting to summarize 50 pages into only three messages may have resulted in leaving something important out, but I think I've captured the heart of the legal problem as defined by the Canadian Supreme Court.

On a personal note, my client was aquitted of the both the attempted murder charge and the included charge of aggravated assault. IMHO, justice was served.

Peace from the Wilds of Calahoo,


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