Abuse defense
Encyclopedia
The abuse defense is a criminal law
defense in which the defendant
argues that a prior history of abuse
justifies violent retaliation. While the term most often refers to instances of child abuse
or sexual assault
, it also refers more generally to any attempt by the defense to use a syndrome
or societal condition to deflect responsibility away from the defendant. Sometimes the concept is referred to as the abuse excuse, in particular by the critics of the idea that guilty people may use past victimization to diminish the responsibility for their crimes.
When the abuser is the victim of the crime, as is often the case, the abuse excuse is sometimes used as a way to "put the victim on trial". Although the abuse defense has been employed in a number of high-profile cases, it is not used very often and is rarely an important factor in the final verdict.
The Supreme Court of the United States
has held on numerous occasions that the defendant should be permitted to present any information that they feel might affect sentencing. Despite this legal precedent, the availability of the abuse defense has been criticized by several legal experts, particularly in the aftermath of the trials of Lorena Bobbitt and the Menendez brothers. Legal scholar Alan Dershowitz
has described the abuse excuse as a "lawless invitation to vigilantism".
. Because the victim of the act is often the person who committed abuse against the defendant in the past, the goal of the abuse excuse is to "put the victim on trial" and show that the abuser "had it coming".
, fetal alcohol syndrome
, and posttraumatic stress disorder. Other defenses seek to attribute the criminal act to the society in which the defendant lives rather than his or her own choices; the pornography defense asserts that the proliferation of pornography
causes men to commit acts of sexual violence
, and urban survival syndrome
claims that violent conditions in a city or neighborhood may justify violent actions by a particular individual.
, who assassinated gay rights advocates George Moscone
and Harvey Milk
, one expert testimony mentioned that the consumption of large amounts of junk food
may have intensified White's state of depression prior to the murders. It was widely reported that White's counsel had earned him a reduced sentence by employing the so-called "Twinkie defense
", despite the fact that the subject of sugar intoxication was only briefly touched upon during the trial.
Although the American public often complains about the supposed frequency with which defendants use the abuse defense, the reality is that it is generally only used in high-profile cases. In order for the abuse defense to be employed effectively, it is necessary for the defense to produce expert testimony on the defendant's behalf. Most defendants are unable to pay for such testimony; as such, qualified experts tend to provide advocating testimony only in those cases in which the defendant is wealthy or is supported by public interest
groups. The trials of Lorena Bobbitt and the Menendez brothers were two high-profile cases that are often cited as examples of the abuse excuse in action.
d her immediately prior to the incident, though he denied these claims and was eventually acquitted of rape charges. Bobbitt also claimed that her husband had repeatedly raped and verbally abused her in the past, and that the memories of this abuse "raced through her head" in the moments prior to the attack on her husband. At her trial, Bobbitt's defense attorney argued that she was not guilty by reason of temporary insanity. She was acquitted by this reason and was released after being taken into custody for psychiatric evaluation. Legal critics argued that Bobbitt won her trial by means of the abuse defense.
. The two constructed an elaborate alibi
and maintained their innocence for several years until Erik confessed to his psychotherapist. When it was decided that the murder confession could be used as evidence during their trials, the brothers entered pleas of self-defense. They claimed that they had been sexually abused by their father throughout childhood and that they feared their parents intended to murder them. Despite the judge's refusal to present the juries with self-defense instructions, the first trials both ended with hung juries and were declared mistrials. Although the brothers were eventually convicted and given consecutive life sentences, many legal experts were outraged by the mistrial.
has held on numerous occasions that capital defendants have the right to present information about an abusive childhood as mitigating evidence. Prior to 1978, the capital statute of Ohio
had placed limitations on what mitigating factors the defense could present during sentencing
. However, this statute was invalidated by Lockett v. Ohio
, in which Chief Justice Warren E. Burger
proclaimed that the sentencer should not be "precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." A similar conclusion was reached in the 1982 case Eddings v. Oklahoma, in which the Supreme Court held that United States law does not prevent a jury from considering a defendant's childhood abuse when determining the appropriate sentence.
In the June 2003 case Wiggins v. Smith
, the petitioner Kevin Wiggins, who had been sentenced to death for murder, was granted habeas corpus
because his attorney had failed to fully investigate or present mitigating evidence regarding Wiggins's childhood. Wiggins had been abused and neglect
ed by his mother and was repeatedly raped while in foster care
; the Supreme Court determined that there was a "reasonable probability" that such information would have altered the jury's sentencing, and that the attorney's failure to present this information violated Wiggins's Sixth Amendment
right to counsel.
has argued that, while a prior history of victimization may be a contributing factor to a violent crime, victimization alone cannot fully explain an act of violence. The vast majority of those who have suffered abuse do not go on to kill their abuser, and there is no known correlation between severity of abuse and the "deadliness of the response". Dershowitz views the effectiveness of the abuse defense as a "lawless invitation to vigilantism" which will serve only to extend the cycle of violence
.
Although political scientist James Q. Wilson
has also denounced the abuse excuse, he points out that it is only effective if a jury finds it to be compelling evidence of innocence or a substantial mitigating factor. When this occurs, there is no reason to exclude claims of abuse from the trial proceedings. Wilson has argued that the problem lies not in the employment of excuses as legal defenses, but in the intermingling of social science, which seeks to explain human behavior, with criminal law, which seeks to judge behavior. Although many citizens advocate severe penalties as a means of reducing crime, a number of studies have shown that the juror's desire to realize that goal is often overridden by the inherent desire to understand the behavior that leads to crime.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
defense in which the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
argues that a prior history of abuse
Abuse
Abuse is the improper usage or treatment for a bad purpose, often to unfairly or improperly gain benefit. Abuse can come in many forms, such as: physical or verbal maltreatment, injury, sexual assault, violation, rape, unjust practices; wrongful practice or custom; offense; crime, or otherwise...
justifies violent retaliation. While the term most often refers to instances of child abuse
Child abuse
Child abuse is the physical, sexual, emotional mistreatment, or neglect of a child. In the United States, the Centers for Disease Control and Prevention and the Department of Children And Families define child maltreatment as any act or series of acts of commission or omission by a parent or...
or sexual assault
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
, it also refers more generally to any attempt by the defense to use a syndrome
Syndrome
In medicine and psychology, a syndrome is the association of several clinically recognizable features, signs , symptoms , phenomena or characteristics that often occur together, so that the presence of one or more features alerts the physician to the possible presence of the others...
or societal condition to deflect responsibility away from the defendant. Sometimes the concept is referred to as the abuse excuse, in particular by the critics of the idea that guilty people may use past victimization to diminish the responsibility for their crimes.
When the abuser is the victim of the crime, as is often the case, the abuse excuse is sometimes used as a way to "put the victim on trial". Although the abuse defense has been employed in a number of high-profile cases, it is not used very often and is rarely an important factor in the final verdict.
The Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has held on numerous occasions that the defendant should be permitted to present any information that they feel might affect sentencing. Despite this legal precedent, the availability of the abuse defense has been criticized by several legal experts, particularly in the aftermath of the trials of Lorena Bobbitt and the Menendez brothers. Legal scholar Alan Dershowitz
Alan Dershowitz
Alan Morton Dershowitz is an American lawyer, jurist, and political commentator. He has spent most of his career at Harvard Law School where in 1967, at the age of 28, he became the youngest full professor of law in its history...
has described the abuse excuse as a "lawless invitation to vigilantism".
Definition
The abuse defense is "the legal tactic by which criminal defendants claim a history of abuse as an excuse for violent retaliation". In some instances, such as the Bobbitt trial, the supposed abuse occurs shortly before the retaliative act; in such cases, the abuse excuse is raised as a means of claiming temporary insanity or the right of self-defense. In other trials, such as those of the Menendez brothers, the supposed abuse occurs over a prolonged period of time, often beginning during the defendant's childhood; this relates the abuse defense to the concept of diminished capacityDiminished Capacity
Diminished Capacity is a comedy film directed by Terry Kinney and starring Matthew Broderick, Virginia Madsen, and Alan Alda. It was released at the 2008 Sundance Film Festival and opened in theaters in July 2008...
. Because the victim of the act is often the person who committed abuse against the defendant in the past, the goal of the abuse excuse is to "put the victim on trial" and show that the abuser "had it coming".
Other responsibility deflection defenses
There are more than 40 distinct defenses and syndromes that have been employed by defense attorneys, all of which share the goal of deflecting responsibility for the crime away from the defendant. Some of these defenses seek to relate the defendant's behavior to previously existing medical conditions, such as antisocial personality disorderAntisocial personality disorder
Antisocial personality disorder is described by the American Psychiatric Association's Diagnostic and Statistical Manual, fourth edition , as an Axis II personality disorder characterized by "...a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood...
, fetal alcohol syndrome
Fetal alcohol syndrome
Fetal alcohol syndrome is a pattern of mental and physical defects that can develop in a fetus in association with high levels of alcohol consumption during pregnancy. Current research also implicates other lifestyle choices made by the prospective mother...
, and posttraumatic stress disorder. Other defenses seek to attribute the criminal act to the society in which the defendant lives rather than his or her own choices; the pornography defense asserts that the proliferation of pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
causes men to commit acts of sexual violence
Sexual violence
Sexual violence occurs throughout the world, although in most countries there has been little research conducted on the problem. Due to the private nature of sexual violence, estimating the extent of the problem is difficult...
, and urban survival syndrome
Urban survival syndrome
The urban survival syndrome in United States jurisprudence, can be used either as a defense of justification or of excuse. The first case using the defense of "urban survival syndrome" is the 1994 Fort Worth, Texas murder trial of Daimion Osby....
claims that violent conditions in a city or neighborhood may justify violent actions by a particular individual.
Prevalence
A growing concern among the American public is that guilty criminals are too often excused for their crimes or are given unsuitably short sentences, a problem that is exacerbated by the use of the abuse defense. Legal experts counter that excuse defenses either serve an insignificant role in the trial or are entirely unsuccessful. During the trial of Dan WhiteDan White
Daniel James "Dan" White was a San Francisco supervisor who assassinated San Francisco Mayor George Moscone and Supervisor Harvey Milk, on Monday, November 27, 1978, at City Hall...
, who assassinated gay rights advocates George Moscone
George Moscone
George Richard Moscone was an American attorney and Democratic politician. He was the 37th mayor of San Francisco, California, US from January 1976 until his assassination in November 1978. Moscone served in the California State Senate from 1967 until becoming Mayor. In the Senate, he served as...
and Harvey Milk
Harvey Milk
Harvey Bernard Milk was an American politician who became the first openly gay man to be elected to public office in California when he won a seat on the San Francisco Board of Supervisors...
, one expert testimony mentioned that the consumption of large amounts of junk food
Junk food
Junk food is an informal term applied to some foods that are perceived to have little or no nutritional value ; to products with nutritional value, but which also have ingredients considered unhealthy when regularly eaten; or to those considered unhealthy to consume at all...
may have intensified White's state of depression prior to the murders. It was widely reported that White's counsel had earned him a reduced sentence by employing the so-called "Twinkie defense
Twinkie defense
"Twinkie defense" is a derisive label for an improbable legal defense. It is not a recognized legal defense in jurisprudence, but a catchall term coined by reporters during their coverage of the trial of defendant Dan White for the murders of San Francisco city supervisor Harvey Milk and mayor...
", despite the fact that the subject of sugar intoxication was only briefly touched upon during the trial.
Although the American public often complains about the supposed frequency with which defendants use the abuse defense, the reality is that it is generally only used in high-profile cases. In order for the abuse defense to be employed effectively, it is necessary for the defense to produce expert testimony on the defendant's behalf. Most defendants are unable to pay for such testimony; as such, qualified experts tend to provide advocating testimony only in those cases in which the defendant is wealthy or is supported by public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
groups. The trials of Lorena Bobbitt and the Menendez brothers were two high-profile cases that are often cited as examples of the abuse excuse in action.
Bobbitt trial
On June 23, 1992, Lorena Bobbitt cut off her husband's penis with a kitchen knife while he was sleeping. Afterward, she drove away and tossed the severed penis out the car window into a nearby field. Bobbitt later claimed that her husband had rapeRape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
d her immediately prior to the incident, though he denied these claims and was eventually acquitted of rape charges. Bobbitt also claimed that her husband had repeatedly raped and verbally abused her in the past, and that the memories of this abuse "raced through her head" in the moments prior to the attack on her husband. At her trial, Bobbitt's defense attorney argued that she was not guilty by reason of temporary insanity. She was acquitted by this reason and was released after being taken into custody for psychiatric evaluation. Legal critics argued that Bobbitt won her trial by means of the abuse defense.
Menendez brothers
In August 1989, brothers Lyle and Erik Menendez shot and killed their parents in their home in Beverly Hills, CaliforniaBeverly Hills, California
Beverly Hills is an affluent city located in Los Angeles County, California, United States. With a population of 34,109 at the 2010 census, up from 33,784 as of the 2000 census, it is home to numerous Hollywood celebrities. Beverly Hills and the neighboring city of West Hollywood are together...
. The two constructed an elaborate alibi
Alibi
Alibi is a 1929 American crime film directed by Roland West. The screenplay was written by West and C. Gardner Sullivan, who adapted the 1927 Broadway stage play, Nightstick, written by Elaine Sterne Carrington, J.C...
and maintained their innocence for several years until Erik confessed to his psychotherapist. When it was decided that the murder confession could be used as evidence during their trials, the brothers entered pleas of self-defense. They claimed that they had been sexually abused by their father throughout childhood and that they feared their parents intended to murder them. Despite the judge's refusal to present the juries with self-defense instructions, the first trials both ended with hung juries and were declared mistrials. Although the brothers were eventually convicted and given consecutive life sentences, many legal experts were outraged by the mistrial.
Legal precedent
The Supreme Court of the United StatesSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has held on numerous occasions that capital defendants have the right to present information about an abusive childhood as mitigating evidence. Prior to 1978, the capital statute of Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
had placed limitations on what mitigating factors the defense could present during sentencing
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
. However, this statute was invalidated by Lockett v. Ohio
Lockett v. Ohio
Lockett v. Ohio, 438 U.S. 586 is a United States Supreme Court case in which the Court held that sentencing authorities must have the discretion to consider every possible mitigating factor, rather than being limited to a specific list of factors....
, in which Chief Justice Warren E. Burger
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...
proclaimed that the sentencer should not be "precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." A similar conclusion was reached in the 1982 case Eddings v. Oklahoma, in which the Supreme Court held that United States law does not prevent a jury from considering a defendant's childhood abuse when determining the appropriate sentence.
In the June 2003 case Wiggins v. Smith
Wiggins v. Smith
Wiggins v. Smith, is a case in which the United States Supreme Court spelled out standards for "effectiveness" in the constitutional right to legal counsel guaranteed by the Sixth Amendment...
, the petitioner Kevin Wiggins, who had been sentenced to death for murder, was granted habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
because his attorney had failed to fully investigate or present mitigating evidence regarding Wiggins's childhood. Wiggins had been abused and neglect
Neglect
Neglect is a passive form of abuse in which a perpetrator is responsible to provide care for a victim who is unable to care for himself or herself, but fails to provide adequate care....
ed by his mother and was repeatedly raped while in foster care
Foster care
Foster care is the term used for a system in which a minor who has been made a ward is placed in the private home of a state certified caregiver referred to as a "foster parent"....
; the Supreme Court determined that there was a "reasonable probability" that such information would have altered the jury's sentencing, and that the attorney's failure to present this information violated Wiggins's Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
right to counsel.
Responses
Legal scholar Alan DershowitzAlan Dershowitz
Alan Morton Dershowitz is an American lawyer, jurist, and political commentator. He has spent most of his career at Harvard Law School where in 1967, at the age of 28, he became the youngest full professor of law in its history...
has argued that, while a prior history of victimization may be a contributing factor to a violent crime, victimization alone cannot fully explain an act of violence. The vast majority of those who have suffered abuse do not go on to kill their abuser, and there is no known correlation between severity of abuse and the "deadliness of the response". Dershowitz views the effectiveness of the abuse defense as a "lawless invitation to vigilantism" which will serve only to extend the cycle of violence
Cycle of violence
The term cycle of violence refers to repeated and dangerous acts of violence as a cyclical pattern, associated with high emotions and doctrines of retribution or revenge. The pattern, or cycle, repeats and can happen many times during a relationship...
.
Although political scientist James Q. Wilson
James Q. Wilson
James Q. Wilson is an American academic political scientist and an authority on public administration. He is a professor and senior fellow at the Clough Center for the Study of Constitutional Democracy at Boston College....
has also denounced the abuse excuse, he points out that it is only effective if a jury finds it to be compelling evidence of innocence or a substantial mitigating factor. When this occurs, there is no reason to exclude claims of abuse from the trial proceedings. Wilson has argued that the problem lies not in the employment of excuses as legal defenses, but in the intermingling of social science, which seeks to explain human behavior, with criminal law, which seeks to judge behavior. Although many citizens advocate severe penalties as a means of reducing crime, a number of studies have shown that the juror's desire to realize that goal is often overridden by the inherent desire to understand the behavior that leads to crime.