While Dangers Gather: The Bush Preemption Doctrine, Battered Women, Imminence, and Anticipatory Self-Defense


Since the Bush Administration issued its controversial Preemption Doctrine, which claims to permit the United States to unilaterally and preemptively attack a putative enemy deemed to be a threat to national security,’I have been rethinking the concept of self-defense as it applies to battered women who kill their abusers. When President George W. Bush spoke about the peril of not taking action “while dangers gather,” I thought about the thousands of battered women in the grip of domestic terrorists who must also make decisions about when and whether to use violence to save their own lives. For many years, I have written about battered women who kill their abusers. During this time, I have witnessed a sea change in the way the public and the legal system think about battered women. As the public has become cognizant of the frequency of domestic violence, the legal system has become more willing to intervene on behalf of battered women. Courts commonly admit expert testimony about battering and its effects when a battered woman is charged with murder after killing her abuser in a traditional self-defense posture (i.e., while he is attacking her). The gradual move toward admitting expert testimony to explain the effects of abuse has been mostly positive and juries are often educated on matters about which they are misinformed or unaware. Although many courts have permitted greater latitude in the admission of expert testimony about battering, unfortunate sequelae have developed in the jurisprudence surrounding battered women who kill. Most courts admit both expert and factual testimony relevant to self-defense when a battered woman kills in a traditional self-defense posture. However, many courts have been disinclined to admit such testimony when the killing does not fit precisely within a traditional self-defense posture-that is, when the killing occurs during a lull in the violence or when the killing occurs some time after the threat was made. Many courts decide as a matter of law that a battered woman who kills has no right to introduce evidence relevant to self-defense if she does not kill her abuser at the exact moment the attack is occurring. Focusing on the specific imniminence of danger the batterer poses, these courts reason that unless she was in danger of losing her life at the precise moment of the killing, she has no legitimate claim to self-defense. This article posits that many courts have engaged in an overly rigid application of the imminence requirement in the law of self-defense by looking at a single moment-when the women actually strikes the fatal blow-rather than looking at a broader spectrum of time and context in which the killing occurred. These courts decide whether self-defense is relevant by narrowly interpreting the issue of whether the killing was done when the women was in “imminent” fear of death or bodily harm.

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