Law News

'Abuse Excuse' Finds Its Place in Court

Battered women's defense called overblown, but lawyers say it has raised consciousness

by Gail Diane Cox
The Recorder/Cal Law
January 4, 2000
Law Net News

Gia McClain didn't need an attorney to come up with the theory she was protecting herself from a battering, drunken husband. The Orange County woman asserted it up front, the night she phoned 911 and reported she'd just fatally shot Fred McClain in the head.

Sally McNeil killed her husband with a pair of shotgun blasts after years of his physical abuse of her. Even her San Diego prosecutor didn't dispute that or the fact that her husband was capable of inflicting significant damage, observing the husband was a "former Mr. California who could have bench-pressed a Volkswagen."

Veronica Gonzales testified she was subjected to physical and sexual abuse first from her parents and then her husband. As a victim virtually all of her life, her attorney argued, her "learned helplessness" kept her from intervening when her husband scalded her 4-year-old niece to death in their Chula Vista apartment.

All three women -- black, white and Hispanic -- came to trial in California in the late 1990s. They were beneficiaries of a decade of case law and statutes that make it easier to get pro-defense evidence of battered woman syndrome before juries. But the abuse excuse didn't let any of them walk. Each is now in prison for murder, and Gonzales is on death row.

About 75 to 80 percent of all defendants tried for murder are convicted, notes law professor Holly Maguigan of New York University, who has defended battered women in more than two dozen trials. "Among women who are identified as battered and assert that defense, the conviction rate is about 75 to 80 percent. The same," she says.

Inyo County District Attorney Philip McDowell provides a historical perspective on those statistics. Several years ago, he attended a statewide seminar devised to help prosecutors brace for an anticipated onslaught of blame-shifting psychobabble to the effect that abused women have a license to kill. "I have yet to see one case in this office," he says. "I think it was overblown, like all the other psychological defenses you hear about."

But Maguigan doesn't deprecate the defense -- or efforts by feminists to popularize it -- just because it hasn't proved a get-out-of-jail-free card. "Twenty years ago, defense lawyers with one of these cases automatically wanted women to plead insanity or plead guilty," she says.

"What has happened is that the discussion has raised lawyers' awareness," she continues. "When they look case-by-case for the context, for the relationship of the killer to the victim; they are doing what they're supposed to do in any homicide case."

Drawing on anecdotes, she continues, it's possible to conclude that the defense most often succeeds when a woman's attorney doesn't stray far from a self-defense theory. A common obstacle -- that the fatal act came while a husband's or lover's back was turned, or the woman was not otherwise in imminent danger -- is most likely to yield to a hostage analogy, Maguigan advises. "People have no trouble accepting that if a person is kidnapped, they have a period in which they are 'allowed' to take self-defensive acts whenever they can."

The disasters, she states, are cases in which the defense goes with what Maguigan calls the common mischaracterization summed up in the phrase "abuse excuse."

"There's no law that says abuse justifies revenge," Maguigan notes. "In court, it doesn't work."

Since the defense under the best conditions is a hard sell, it was no surprise that Ventura County jurors rejected a classic version of it Dec. 23 when it found Gladis Soto guilty of first-degree murder in the shooting death of her husband.

In opening statements, Soto's lead attorney, Jorge Alvarado, did refer to his client's childhood molestation, but the bulk of his case focused on recent events including the allegation that the husband beat and raped Soto just hours before the shooting. He concluded his case with a psychologist's testimony that Soto is a battered wife suffering depression, heightened anxiety and trauma -- a diagnosis illustrated by Soto's appearance in court wearing prison blues, weeping and weak-kneed. She wasn't dressed nicely, Alvarado told jurors, because that would be false for a woman who had been a "captive" throughout her marriage.

On the other side, Deputy District Attorney Patricia Murphy touched bases familiar from earlier, successful prosecutions. She didn't deny that some battered women kill in self-defense, only that Gladis Soto belonged in their company. Yes, Soto's husband beat her to some extent -- there is a record of the defendant's reporting domestic violence to the police -- but the injuries were exaggerated and never forced her to seek care at local hospitals, Murphy contended. The core of the prosecution was that Soto acted with calculation, motivated by jealousy over her husband's extramarital affairs and not by helplessness or fear.

That was the tack that Deputy District Attorney Daniel Goldstein of San Diego took when faced with Sally McNeil's battered woman defense: Being beaten doesn't automatically qualify a woman for battered woman's syndrome, and the defendant acted out of the rage because she was a woman scorned.

Goldstein accepts that there is a valid battered woman's defense and, after some 50 cases in which he has prosecuted batterers, he adds, "I know that 'learned helplessness' is real." His objection is that the abuse defense has become, in his view, abused.

"Prosecutors have to presume going in that they'll face it in any case of a woman accused of murder," he says.

That's why he argues that Maguigan's statistics are misleading. The real success of the battered woman defense comes before trial, when prosecutors decide what charges to file or whether to file at all, he says. "I won't call it prosecutors' fear, but rather prosecutors' acknowledgment of the persuasive power the defense might have with a jury. That's where you see the deals cut. That's where the charges become voluntary manslaughter."

The victory that advocates of the battered woman defense won in a 1996 California Supreme Court decision, People v. Humphrey, 13 Cal.4th 1073, keeps prosecutors expecting the worst despite their string of successes, according to Goldstein and others. The opinion set what has since become nicknamed "the reasonable battered woman" standard. It held that a jury can hear expert testimony to determine whether a defendant acted reasonably given her history of abuse.

The first acquittal attributed to the Humphrey decision came in April 1997 when a San Francisco Superior Court jury, after listening to defense experts, set Fay Johnson free. The most important thing Deputy District Attorney Cheryl Matthews says she learned from the trial wasn't a legal point, but rather the importance of scheduling. "The defense did a very good job of drawing things out so that the trial came after Humprey," she laments.

But it is also significant that Johnson, the most famous beneficiary of Humphrey to date, was also charged not with murder but rather attempted murder.

Without Humphrey, one of her defense attorneys, Damone Hale, has speculated that she would have faced less than five years in prison for attempted voluntary manslaughter.

It is not only defense attorneys who have had their consciousness raised. Circumstances sometimes justify lesser charges even in murder cases, prosecutors agree.

Brian Sussman, a deputy district attorney in Riverside County, recalls a murder case he prosecuted in 1987 in which the woman, Gwendolyn Harris, who shot her ex-husband, used a battered woman defense and was acquitted. "That was back before we had a name for it, before you had experts testifying," he says. "Because the rules of evidence were different, our side didn't even know until we were in trial how violent the husband had been."

Asked how he would try the case differently today, Sussman replies, "I wouldn't prosecute it today. That's not easy to say. But we've learned more."

Sussman now heads his office's domestic violence unit.

There's no way to be sure, he ventures, but if the battered woman defense is being used less than some had anticipated, couldn't one explanation be "maybe women aren't feeling as helpless as they did because other resources are becoming available?"

Copyright 1999 NLP IP Company -- American Lawyer Media.