by Kira Darragh

Sex bias towards women is not only ingrained in American society through pay structures and positions of power, but it is also central to our criminal justice system and the way in which it routinely punishes women victims. Cyntoia Brown, the 16-year-old victim of sex trafficking who received a life sentence after killing a man in self-defense, made national headlines and led activists and celebrities to plead for her release. While news of this sentence gained notoriety, the system’s failure of Ms. Brown is the constant reality of abused women who are forced to fight back in the United States. For instance, women like Marissa Alexander, who was sentenced to 20 years after firing a warning shot to prevent her husband’s attack, received equally harsh punishment. This is in stark contrast to men like Raven Abaroa, who only served seven years for stabbing his pregnant wife to death.

Currently, 90% of the women who are in prison for killing men were previously abused by those same men. Women continue to receive harsher sentences for killing their partners than men do for the same crime. Women who kill an intimate partner receive an average sentence of 15 years, while men only receive sentences of 2 to 6 years. This becomes even more astonishing when you consider the rate at which women of color experience domestic violence. A study by the Institute for Women’s Policy Research found that 51% of Native American women and 41% of Black women report physical violence by an intimate partner in their lifetime, compared to 30% of White women. The sex bias ingrained in the system denies women equal protection under the law. Our current system fails survivors when self-defense is used. The self-defense argument limits or excludes evidence proving the danger abused women faced, including past abuse and threats. This results in the jury not fulfilling their purpose because they lacked all the relevant facts.

 The criminal justice system refuses to create a separate basis of law that considers past abuses, leaving women to rely on legal defenses that weren’t designed for them and don’t provide protection. A defendant using self-defense must reasonably believe (1) they were threatened by an immediate threat of unlawful force, (2) they used necessary force to prevent the threat, and (3) their force was proportionate to the threatened force.[1] Self-defense is ill-adapted for women with histories of abuse, and the courts are reluctant to take continuous victimization into account when deciding liability or sentences.

The imminent danger requirement presumes a one-time adversarial event. The analysis focuses on the circumstances immediately before the incident, ignoring harm threatened in the past. Women who kill their abusers don’t fit this model because they often kill their abusers in nonconfrontational conditions, rather than while being attacked. They are considered to have acted without an imminent threat, even if the woman’s experiences made her believe there was such a threat. When evidence of past abuse is precluded, the jury does not accept self-defense because they are unable to understand why the woman believed she was in danger. Instead, the imminence requirement “asks women to wait until a man is actively attacking her before using force in self-defense, a fight that women too often lose.”

The necessity requirement demands that the force used be necessary to prevent an imminent attack.[2] If the defendant could have avoided using force by leaving, then it is tough for them to claim the force was necessary.[3] A minority of states require retreat before using force in self-defense if the retreat is available and known to the person.[4] It is difficult for the jury to believe that the force was necessary when a woman kills in nonconfrontational circumstances, and they often wonder why the woman didn’t just leave. This question is rooted in a social misconception claiming women choose to stay with their abusers, and therefore deserve the brutality. This sex bias ignores the isolation, lack of resources, and challenges faced by these women when attempting to leave.

A person may only use deadly force in self-defense if they are being threatened with proportionate force. Jury instructions for self-defense normally include that deadly force is only appropriate when the woman “reasonably believes she is threatened with death or great bodily harm.” This requirement assumes the opponents are of similar size and strength and ignores that women often have no alternative but to defend themselves using a weapon. Their use of deadly force is then deemed unreasonable, thus preventing the jury from accepting self-defense claims.

As a result, a national trend has emerged attempting to resolve this sentencing disparity issue. California allows domestic violence victims to re-file for a writ of habeas corpus to include previously excluded expert testimony. Illinois lists domestic violence as a mitigating factor in sentencing. New York’s Domestic Violence Survivors Justice Act allows the judge to consider evidence of abuse and use that to deviate from sentencing guidelines. The judge has the discretion to give shorter sentences or send survivors to alternative programs that provide access to housing, rehabilitation, and counseling.

Rather than relying solely on legislation, scholars suggest the use of individualization. Individualization allows judges and juries to consider the totality of the circumstances in ascertaining the defendants’ perspective, and whether they should be held accountable for the crime. Another option that could level the playing field for survivors is prosecutorial discretion.  Prosecutors have the power to refuse prosecution when justice requires. This is especially powerful in a criminal justice system where 90% of cases are settled by plea deals. Survivors are seemingly coerced into pleading guilty when prosecutors pursue charges because they cannot afford bail or have children they must return to. If the system continues to deny survivors equal protection under the law, women like Ms. Brown and Ms. Alexander will be forced to choose between dying at the hands of their abuser or fighting back and facing extended prison sentences.

[1] Cynthia Lee & Angela P. Harris, Criminal Law 604 (W. Acad. Publ’g, 4th ed. 2019).

[2] Id. at 617.

[3] Id.

[4] Id.