The Battered Woman.

Self-Defense, Imminence, and the Battered Woman
Author(s): Whitley R.P. Kaufman

Source: New Criminal Law Review: An International and Interdisciplinary Journal, Vol. 10,
No. 3 (Summer 2007), pp. 342-369
Published by: University of California Press
Stable URL: http://www.jstor.org/stable/10.1525/nclr.2007.10.3.342 .
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NCLR1003_02.qxd 7/27/07 3:59 PM Page 342
S E LF-D E FE N S E, I M M I N E NCE, AN D TH E
BAT T E R E D WO M A N
Whitley R.P. Kaufman*
A traditional element of self-defense doctrine is the imminence rule, restricting the use of force in self-defense to cases where the threatened harm is imminent, about to happen. In recent years, this rule has been subject to increasing criticism, especially in the context of cases involving battered women, and
some commentators have even called for its elimination. This essay presents
the case for the imminence rule as reflecting the requirement that in a civil
society, the use of force be reserved to the state, with only one exception. This
exception applies to cases where an individual is faced with an imminent
threat. In such circumstances, the state would not be able to intervene in time
to protect the person, and hence the individual is permitted to use force in her
own defense.
I N T R O D U CT I O N
We are currently in the midst of a major debate about the scope and limits
of self-defense, and in particular about the restriction of the use of defensive
force to situations where there is an imminent threat. The imminence rule
has come under vigorous attack from two different directions. In the context of international law, the defenders of the United States right to preemptive use of military force have argued that the traditional limitation of
the right of international self-defense to imminent threats is outdated in the
current international situation. A parallel debate in domestic law concerns
*Department of Philosophy, University of Massachusetts Lowell.
New Criminal Law Review, Vol. 10, Number 3, pps 342370. ISSN 1933-4192, electronic ISSN
1933-4206. 2007 by the Regents of the University of California. All rights reserved. Please
direct all requests for permission to photocopy or reproduce article content through the
University of California Presss Rights and Permissions website, http://www.ucpressjournals.
com/reprintInfo.asp. DOI: 10.1525/nclr.2007.10.3.342.
342

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S E L F - D E F E N S E , I M M I N E N C E , A N D T H E B AT T E R E D W O M A N
the appropriateness of applying the imminence rule to women who claim to

have been subject to repeated domestic abuse, and who kill their abuser
during a lull in these attacks, even (in some cases) when he is asleep or
unconscious. Critics have argued that in such battered woman situations,
it is unfair to the woman to apply the imminence restriction, since doing so
would undermine her claim of justified self-defense when she in fact resorted
to the only available option for self-protection.1
Remarkably, there is no clear consensus at all as to why the traditional
doctrine of self-defense, either in domestic or international law, requires
that the threat be imminent. As George Fletcher laments, the existing
literature of criminal law has done a woefully inadequate job in constructing a case for the imminence requirement.2 It is the goal of this
essay to address this challenge, and to attempt a systematic explanation
and defense of the imminence restriction. Elsewhere, I have argued for
retaining the imminence rule in international law;3 here I consider the
domestic context and argue for the continued importance of the imminence rule in the law of self-defense. My approach will be both historical
and philosophical: that is, I will explore the historical origins and rationale of the rule in order to make the case that the imminence rule is an
essential element of the law of self-defense.
The structure of the essay will be as follows: in section I, I discuss the
imminence rule generally and the controversy arising about the rule for
cases involving battered women. In section II, I consider and reject the
two current leading theories of imminence; according to one, the imminence rule is best understood not as an independent restriction on the use
of defensive force, but merely as a proxy for the necessity rule; according
to the other, imminence is an independent restriction grounded in the
moral duty against the use of aggressive force. Section III presents a positive
1. For comparison of the two debates, see Kimberly Kessler Ferzan, Defending Imminence:
From Battered Women to Iraq, 46 Ariz. L. Rev. 213 (2004); Shana Wallace, Beyond
Imminence: Evolving International Law and Battered Womens Right to Self-Defense, 71 U.
Chi. L. Rev. 1749 (2004); Jane Moriarty, While Dangers Gather: The Bush Preemption
Doctrine, Battered Women, Imminence and Anticipatory Self-Defense, 30 N.Y.U. Rev. L. &
Soc. Change 1 (2005); Michael Skopets, Battered Nation Syndrome: Relaxing the Imminence
Requirement of Self-Defense in International Law, 55 Am. U. L. Rev. 753 (2006).
2. George Fletcher, Self-Defense and Relations of Domination, 57 U. Pitt. L. Rev. 553,
568 (1996).
3. Whitley Kaufman, Whats Wrong With Preemptive War? 19 Ethics & Intl Aff. 23 (2005).

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account of the purpose of the imminence rule as grounded upon a particular allocation between the state and the individual of the right to use
force. Finally, section IV returns to the question of battered women as a
test case for the application of the imminence rule, and presents an argument for retaining the imminence rule even for these difficult cases. We
will see that the current criticism of the imminence rule is largely premised
on a widespread misunderstanding about the underlying rationale of the
rule. By attending to the origin of the rule, we can better understand its
function and continued importance even in controversial cases such as
that of the battered woman.
I . S E L F - D E F E N S E D O CT R I N E A N D T H E
I M M I N E NCE R U LE
The traditional elements of self-defense are four in number. First, the

defensive force may be used only against an unjustified attack. Second,
the force used must not be disproportionate to the nature of the threat.
Third, the force must be necessary, i.e., there is no other way to prevent
the attack. Fourth, and most significant for our purposes here, defensive force may only be used where the threat is imminent. Each of these
is usually (though not in every jurisdiction) interpreted according to a
reasonableness standard: for instance, the use of force is justified only if
a reasonable person would judge that there was an imminent threat of
harm. Hence an honest but unreasonable mistaken belief in imminent
danger will not be fully exculpatory, while an honest and reasonable
mistake will be.
Imminent is not a technical legal term, but is used in its ordinary or
dictionary meaning, and indeed is often not defined at all in statutes and
jury instructions. The most common definition given is about to occur;
that is, a danger is imminent when it is not a future but a present threat.
It is sometimes argued that imminent must be sharply distinguished from
the term immediate, on the grounds that the latter implies a far more
urgent, pressing, present threat than does the former.4 However, it would
4. See, e.g., Lenore Walker, Battered Women As Defendants, in Legal Responses to Wife
Assault 233, 243 (Zoe Hilton ed., 1993) (imminent is often confused with immediate);
Cynthia Gillespie, Justifiable Homicide 185 (1989).

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be misleading to insist on too precise a distinction between these two

words, for they are often used interchangeably in common speech as well
as in legal circles.5 A survey of case law shows that courts often use the two
words concurrently or even interchangeably. Paul Robinson thinks that
imminence, taken literally, requires that the defendant wait until the
attacker is standing over him with a knifei.e., is no less strict than
immediacy.6 Blacks Law Dictionary defines imminent as near at hand;
mediate rather than immediate, but then confusingly defines imminent
danger this way: In relation to homicide in self-defense, this term means
immediate danger.7 Wayne LaFave finesses the distinction by defining an
imminent threat as one that is almost immediately forthcoming.8 And
the Model Penal Code standard for self-defense adopts the phrase immediately necessarya rather opaque phrase that apparently turns imminence into immediacy (see discussion in the next section).9 It is thus far
from obvious that there is an important or useful distinction to be drawn
between imminent and immediate, and I will use them interchangeably in the remainder of this essay.
This ambiguity about the meaning of imminence has, of course,
very real and concrete implications for criminal defendants. Of particular relevance to this essay is the question whether the imminence rule
has been misapplied, or even whether it should not be applied at all, in
the case of battered women. A number of advocates of battered women
have argued that the imminence rule in practice denies women their
right to self-defense against their abuser. Cynthia Gillespie, for example, in her groundbreaking work Justifiable Homicide, argued that the
imminence rule has proved to be a major obstacle in framing selfdefense pleas for female defendants who have killed violent men, and
5. Richard Schopp, Justification Defenses and Just Convictions 99 (1998). Schopp elsewhere refutes the claim that the immediacy standard, in contrast to imminence, would
preclude consideration of a past history of danger. In fact, a history of past violence is
always relevant to the reasonableness of a belief in the necessity to use force, on any standard. Richard Schopp et al., Battered Woman Syndrome, Expert Testimony, and the
Distinction Between Justification and Excuse, 1994 U. Ill. L. Rev. 45, 65. Cf. Donald
Downs, More Than Victims 247 (1996).
6. 2 Paul H. Robinson, Criminal Law Defenses 131(c)(1) (1984).
7. Blacks Law Dictionary (5th ed. 1979).
8. 1 Wayne LaFave & Austin W. Scott, Substantive Criminal Law, 5.7, at 655 (1986).
9. Model Penal Code 3.02(1)(a) (Proposed Official Draft 1962).

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that the rule often has the effect of depriving her of her right to selfdefense altogether.10
It is the nonconfrontational cases in particular that have received special
attention, even though these constitute only a tiny percentage of the cases
in which battered women kill their abusers.11 In such cases, the woman
attacks her abuser while he is not currently threatening her, indeed sometimes when he is asleep or unconscious. In a case where a woman kills her
sleeping husband, the imminence standard arguably cannot be satisfied as
a matter of law: as Richard Rosen suggests, the threat of death or great
bodily harm was not imminent when [she] shot her husband, not, at least,
by any reasonable interpretation of the word imminent.12 But the same
problem arises in all nonconfrontational cases, albeit not quite as dramatically. Hence a woman may be precluded from asserting self-defense solely
on the grounds of the imminence rule, even if she satisfies all the other
requirements of self-defense, including the necessity for the use of force.
This apparent paradoxhow can force be necessary if the threat is not
imminent?has puzzled many a commentator. But in fact it is no paradox
at all: indeed, the very situation is illustrated by the case of Judy Norman.
The Norman case is the most widely cited example of a battered
woman prevented from claiming self-defense solely by an application of
the imminence rule.13 Ms. Norman at the time of the incident had been
10. Gillespie, supra note 4, at 76, 186. Cf. Kym Miller, Abused Women Abused by the
Law: The Plight of Battered Women in California and a Proposal for Revising the
California Self-Defense Law, 3 S. Cal. Rev. L & Womens Stud. 303 (1994); Richard Rosen,
On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. Rev. 371,
372 (1993); Schopp, supra note 5, at 68 (some BW cases would not qualify as self-defense
if imminence is separate from necessity).
11. Holly Maguigans study indicates that the vast majority (from 70 to 90 percent) of
battered women killings occur in confrontational situations, i.e., during an actual or imminent attack by the batterer. Holly Maguigan, Battered Women and Self-Defense: Myths
and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379, 384 (1991).
12. Rosen, supra note 10, at 375.
13. State v. Norman, 378 S.E.2d 8 (N.C. 1989). See, e.g., Jeffrey Murdoch, Is Imminence
Really Necessity? Reconciling Traditional Self-Defense Doctrine with the Battered Woman
Syndrome, 20 N. Ill. U. L. Rev. 191, 199 (2000) (the best known case where the imminence
requirement served as a bar to a claim of self-defense being made by a battering victim);
Alan J. Tomkins et al., Self-Defense Jury Instructions in Trials of Battered Women Who Kill
Their Partner, in Legal Responses to Wife Assault, supra note 4, at 258, 263 (Norman epitomizes the problems that several commentators claim exist for battered women defendants

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married for twenty-five years and had several children. She testified that her
husband had begun drinking and abusing her about five years after they
were married. The abuse, according to Norman, included hitting her, kicking her, throwing objects at her, putting out cigarettes on her, and throwing hot coffee on her. Numerous times he threatened to kill or maim her.
Ms. Norman testified that she was afraid to press charges against her husband or leave him, claiming that she had several times left home but that
he had always found her and brought her back and beaten her. The day
before Mr. Normans death, sheriff s deputies were called to the Norman
home, and Ms. Norman complained that her husband had been beating
her all day and that she could not take it anymore. She was advised to file
a complaint, but said she was afraid her husband would kill her if she had
him arrested. The deputies said they needed a warrant in order to arrest
him, and left. An hour later, the deputies returned after Ms. Norman had
attempted suicide. In the hospital, she talked to a therapist who discussed
filing charges and having her husband committed. The next day, after
returning home from the hospital, she decided to take matters into her own
hands. Her husband had been asleep for some time; Ms. Norman walked
to her mothers house, obtained a gun, and then returned and shot her husband three times in the back of the head while he slept, killing him. At trial,
Ms. Norman claimed self-defense, but the court did not allow this defense
on the sole ground that she could not have been under an imminent threat
at the time of the shooting, since her husband was asleep. Ms. Norman was
convicted of manslaughter and sentenced to six years imprisonment.
The Norman case is not the only such case of an abused wife killing her
husband while he is asleep, but it has served as the rallying point for the
movement to revise or eliminate the imminence rule. Advocates for battered women have argued that the law of self-defense, including the imminence rule, is constructed with men in mind, based on the paradigm of
two strangers of equal size and strength in a public place.14 The battered
wife, so the argument goes, cannot rely on a rule designed for the onetime confrontation in a public sphere; instead, she is involved in a longterm abusive relationship in her own home, which she cannot easily leave
who ought to have the protection of a self-defense claim); Rosen, supra note 10, at 372
(the first thing that turned my attention to the subject of battered women, self-defense,
and the imminence requirement was the case of Judy Norman).
14. See, e.g., Gillespie, supra note 4, ch. 1.

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(indeed she may be financially dependent and unable to leave). Being

physically weaker than her abuser, she may need to rely on more indirect
means of defending herself, such as attacking while her abuser is not
expecting it or is even unconscious. Furthermore, societal institutions are
not well designed for protecting abused wives: police are reluctant to interfere in private domestic matters, restraining orders are not easy to enforce,
and the presence of children in the home further complicates matters.
Hence it is necessary, the battered woman claims, for her to act even in the
absence of an imminent threat. For these reasons, it is argued, the imminence rule is discriminatory against women and should be modified or
rejected, at least for battered women.
What is essential to a self-defense claim, it is argued, is the necessity of
the resort to force, not the imminence of the threat, and Judy Norman
had a strong case for the necessity of force.15 In order to address such an
argument, we will need to ask just why the law limits defensive force to
cases where there is an imminent threat. We begin by considering the two
leading accounts of the purpose of the imminence rule.
I I . I S T H E I M M I N E N C E R U L E R E A L LY N E C E S S A RY ?
The first account, recently developed but increasingly influential, asserts

that the denial of a self-defense justification to such women as Judy
Norman on the grounds that the threat was not imminent, even if the force
was necessary, is based on a serious misunderstanding of the purpose of the
imminence rule. On this theory, the essential element of self-defense is the
necessity of the resort to force; the imminence rule has no independent significance, but is merely a proxy or an indicator or a translator for
necessity (we will henceforth call this the Proxy Thesis). Thus for Jeffrey
Murdoch, imminence is merely a way of measuring necessity; it is an
indicator of whether action is necessary and is thus merely a subordinate
rule and should not be used to disallow defensive force when that force is
necessary.16 For Richard Rosen, the concept of imminence has no significance independent of the notion of necessity; it is a mere translator of
necessity. Imminence is required only because of the fear that without
15. See, e.g., Rosen, supra note 10, at 411.
16. Murdoch, supra note 13, at 212.

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imminence there is no assurance that the defensive action is necessary to

avoid the harm.17 Alafair Burke concurs: the requirement of imminence
is an imperfect proxy to ensure that a defendants force is necessary.18
Richard Schopp and Shana Wallace also see imminence or immediacy as an
indicator of the existence of necessity, rather than as an independent
restriction.19 Paul Robinson tentatively concurs that the imminence
restriction is more properly viewed as a modification of the necessity
requirement. That is, as a practical matter actions taken in the absence of
an imminent threat may not be necessary.20 David Rodin states the claim
more forcefully: The point is that we cannot know with the required
degree of certainty that a defensive act is necessary until the infliction of
harm is imminent. . . . Imminence, like the duty to retreat, is simply a component and corollary of the requirement of necessity.21 Our legal tradition
has, on this view, mistakenly come to take imminence as a distinct requirement, to the great detriment of battered women.
The Model Penal Codes version of the principles of self-defense
appears to adopt this theory that imminence is a mere proxy for necessity.
It eliminates the imminence rule as an independent restriction on selfdefense, and instead merges it into the necessity rule, creating a new
requirement that defensive force be immediately necessary.22 There is
substantial confusion, however, about just how to interpret this revision.23
Does it eliminate the imminence requirement, or retain it? Is the word
immediate meant to be equivalent to imminent or a conscious alternative to it, and if so, how does it differ? While some commentators have
argued that it is designed to relax the strictness of the imminence rule,
17. Rosen, supra note 10, at 371; compare David Gauthier, Self-Defense and Relations
of Domination: Comments on George Fletchers Domination in the Theory of
Justification and Excuse, 57 U. Pitt. L. Rev. 615, 616 (1996); Downs, supra note 5, at 229
(imminence of harm is the best indication of . . . necessity).
18. Alafair Burke, Rational Actors, Self-Defense, and Duress: Making Sense, Not
Syndromes, out of the Battered Woman, 81 N.C. L. Rev. 211, 271 (2002), quoted in Ferzan,
supra note 1, at 241 n.162.
19. Schopp, supra note 5, at 10102; Wallace, supra note 1, at 1761.
20. Robinson, supra note, 6, 131(B)(3).
21. David Rodin, War and Self-Defense 41 (2002).
22. Model Penal Code 3.04(1) (Proposed Official Draft 1962).
23. See, e.g., discussion in Schopp, supra note 5, at 98; Robin Ogle & Susan Jacobs,
Self-Defense and Battered Women Who Kill 11820. (2002); George Fletcher, Rethinking
Criminal Law 764 (2000).

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the more common view is (as we have seen) that immediacy is stricter than
imminence. However, the phrase immediately necessary could also be
interpreted in a more radical way: that it means to shift the focus away
from whether the harm is immediate/imminent to whether the necessity is
immediate: that is, even if the harm is far off, the necessity to act is now.
The problem with this view is that it creates a redundancy: the necessity
condition has always meant necessary now (for what else could it mean?).24
It is hard to avoid the conclusion that the drafters of the MPC themselves
lacked a clear conception of the purpose of the imminence rule.
The first question for us then is whether the Proxy Thesis is correct: is
the function of the imminence rule merely to serve as an indicator for
necessity? A close analysis will show that the thesis is false: the imminence
and the necessity rules are logically independent. It is certainly to be conceded that there is a close factual relation between imminence and necessity, in that ordinarily when a threat is not yet imminent, it will not be
necessary yet to resort to defensive force. Similarly, in most cases where the
use of defensive force is judged to be necessary, it will typically be the case
that the danger is either imminent or actual. There is an obvious explanation for this close connection: the further off in the future a potential
threat lies, the less likely it is that it will be necessary to counter it with
present force, since there is ample time to find other (nonviolent) responses.
Further, since temporally distant harm is usually highly uncertain and
even speculative, it is harder to justify a claim that a violent response is
necessary right now. Lots of things could happen between now and then
to make the use of force unnecessary. But by the time the threat becomes
imminent, there is a far more plausible case to be made that it is necessary
to take decisive action.
Moreover, the relation between imminence and necessity is imperfect. It
is easy to conceive of situations involving imminence but not necessity, and
vice versa. For example, if a security guard yells out to me: identify yourself or Ill shoot! here there is an imminent threat, but since I can avoid
any harm by simply identifying myself, there is no necessity to use force.
Somewhat more counterintuitively, it is also easy to conceive of cases where
force is necessary even though there is not an imminent threat. Indeed, we
need look no further than the very sort of case that has inspired the current
debate: the woman who has been repeatedly abused in the past and has no
24. Cf. Robinson, supra note 6, 131(c)(2).

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alternative for protecting herself against future harm than to attack her
abuser preemptively. It is true that in general the further off in the future
the threat is, the less likely it will be necessary to act now. However, this
relation is a matter of degree, not of intrinsic connection. Sometimes the
best or indeed the only time to act defensively is before the threat ripens
into an imminent danger, and in such cases it is perfectly reasonable to
assert that it is necessary to act now, rather than risk disaster by waiting too
long. Indeed, this is precisely how some commentators interpret the case of
Judy Norman: that in her judgment, it was necessary to act decisively, as
the police were unable to help her, and to wait until the moment of attack
by her husband would be to risk serious abuse or even death if she did not
take the opportunity to act preemptively.25 The question then is how to
handle cases where necessity and imminence diverge.
According to the Proxy Thesis, the use of force by the individual should
be permitted whenever it is necessary, even if the threat is not imminent.
It would be simply absurd to deny a person the right to defend herself
where force was necessary, based on a rigid, formalistic adherence to a
requirement of imminence. The problem for the Proxy Thesis, however, is
that it fails to recognize how in fact our legal system handles cases where
imminence and necessity diverge. Where there is the necessity for the
use of force, but no imminent threat, the individual is not permitted to
resort to force herself. This does not mean she must passively surrender to
the threat, or wait until it becomes imminent before she can act; rather,
the law permits her to turn to the authorities for protection, i.e., call the
police. Crucially, the lack of an imminent threat does not entail that the
police or courts are prohibited from using force (or the threat of force) as
necessary to protect the individual. The authorities may use all necessary
and proportionate force to protect the woman, including for example
arresting the abuser, or issuing a protective order (backed by the threat of
force). Thus we have identified a function for the imminence rule that is
wholly distinct from its role as an indicator of necessity: it establishes a
strict division of the right to use force. The individual may use force only
25. The widespread confusion as to how force can be necessary but not imminent
appears to result from an overly literal reading of necessary. But of course, on a strictly
literal interpretation, force would not be necessary even when the threat was imminent: as
Richard Rosen points out, supra note 10, at 397, even when a gun is pointed at your head,
the attacker could change his mind, or miss.

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when such force is necessary and the threat is imminent; the state however
may use force when it is necessary, even if the threat is not imminent
(assuming proportionality and other requirements are satisfied). Just why
there exists this division of labor has, of course, not yet been established.
But the Proxy Thesis fails to recognize this division, and the crucial role of
imminence in establishing the division, and hence must be rejected.
The alternative contemporary theory of imminence, presented in
Kimberly Ferzans Defending Imminence: From Battered Women to
Iraq, rejects the Proxy Thesis (though, as we will see, falls prey to the same
error as the Proxy Thesis does).26 Ferzan argues that the compelling need
to aid battered women has made the self-defense argument too easy. In this
context, the integrity of self-defense has been undermined by the jettisoning of imminence.27 She insists that imminence is more than a proxy for
necessity, but has an independent ethical basis.28 Her argument is based on
the conceptual distinction between self-defense and self-preference. The
distinctive feature of self-defense, according to Ferzan, is precisely that it is
a defense against an act of aggression: Self-defense is only understandable
as a response to anothers aggressive conduct.29 And it is imminence that
is the measure of aggression: when the right to self-defense is broadened
to any person that might potentially inflict harm, we blur the distinction
between offense and defense. . . . We then have no ability to distinguish
self-defensive conduct from aggressive conduct.30 This requirement that
there be prior aggression is a moral one, for Ferzan: the moral assessment
of both the aggressors and the defenders rights hinges on some notion of
aggression.31 One who invokes self-defense before there is an imminent
threat loses the moral high ground and thus the justification for his act:
The aggressors action starts it. We can only understand defense by comparison with offense. The aggressors action signifies the breach of the community rules and the lack of respect for the defender. It is this action that
makes self-defense understandable.32 The imminence requirement thus
ensures that the force really is defensive and therefore morally justified.
26. Ferzan, supra note 1.
27. Id. at 213.
28. Id. at 262.
29. Id. at 257.
30. Id. at 259.
31. Id. at 258.
32. Id. at 259.

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Ferzan is right to insist on the distinction between imminence and

necessity; however, she is wrong about the moral basis for the imminence
rule. It is certainly true that self-defense is justified because it is a response
to an unjust aggression. The problem, however, is that an act of aggression
does not suddenly become unjust at the very moment of imminence.
Someone who is planning and preparing an unjust attack on me is already
in the wrong, and I have the high moral ground against him even before
he commences his attack. It is not plausible to insist that I must in every
case wait until the attack is about to happen in order to be morally justified in taking action to protect myself. It is certainly true that the earlier
one intervenes, the more likely it is that one is mistaken about the purported attackers intentions (and the less chance a genuine aggressor will
have to change his mind and withdraw his attack). However, it is equally
true that the longer one waits before resorting to defensive force, the more
one risks missing the window of opportunity to protect oneself. Surely
there are some cases where preemption against a planned aggression is
morally justified. Indeed, this is just the argument of the battered woman:
it is unreasonable to expect her to wait until an actual or imminent attack
in order to protect herself.
Even more damaging to Ferzans thesis is the fact that, as she recognizes,
the state is not prohibited from acting preemptively in the use of its police
power. But this would make no sense if she were right that morality
requires that the use of force not take place until the moment of imminence. It is compelling evidence against her argument that morality does
not in fact require police to wait until an attack is imminent, nor do we
think that the police thereby become immoral aggressors. Quite the
opposite: we insist that the police intervene as early as possible, once it is
determined that an unjust aggression is underway (i.e., there is some sort
of overt act). Indeed, that is just what it is supposed to do in protecting the
battered woman (its failure to do so is precisely the reason that has been
given for allowing the woman to use force herself ). But then of course
there is no intrinsic moral argument against the morality of preemptive
force. And this only raises the same question on which the Proxy Thesis
founders: why should what is morally permissible for the state be impermissible for the individual?
It is instructive to contrast the imminence rule with the other three
restrictions on the use of defensive forceunjust attack, necessity, and
proportionality. First, what is striking is that the other three all have a clear

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and obvious moral basis. Thus one may not use force unless it is against an
attacker who is himself unjustified (that is, the defender has to have the
moral high ground), one may only use force if necessary, and one may only
use a proportionate degree of force (e.g., not kill someone to protect against
trivial harm). In contrast to these, as we have seen, it is far from obvious
why on moral grounds defensive force should be limited to cases where the
threat is imminent. Second, it is equally striking that all of the other three
requirements apply to all uses of force, whether by the state or by the individual, whereas the imminence rule is unique in binding only the individual, not state actors. What could explain these two important differences?
I I I . T H E I M M I N E N C E R U L E : P O L I T I CA L N OT M O R A L
The central thesis of this essay is that the imminence rule is independent
of the necessity rule, and that it derives not from morality but from political theory. As so often, George Fletcher correctly grasps this point: the
requirement properly falls into the domain of political rather than moral
theory. The issue is the proper allocation of authority between the state and
the citizen.33 Fletcher here invokes what is traditionally called the Public
Authority restriction on the use of force. The basic idea is that the state
claims a monopoly on force, under which no individual or non-state
group is permitted to resort to force without the states authorization.
There is, however, one major exception to the societal monopoly on violence. Where the danger is present and immediate, and there is no time to
resort to a central authority, the individual is permitted to resort to force
without seeking the prior authorization of the state. Self-defense thus
remains a private right for just this reason. It is the one exception to the
Public Authority requirement, on the grounds that the individual cannot
reasonably be expected to submit passively to self-destruction. But all
preemptive forcebefore there is an imminent threatand punitive or
33. Fletcher, supra note 2, at 570. Fletcher is, however, wrong to suggest that this makes
individual self-defense somehow derivative from the states monopoly on force. Fletcher,
supra note 23, at 867. There is no meaningful sense in which the states use of force is prior
to the individuals, nor is there any reason to think the individuals right of self-defense exists
only at the pleasure of the state. Indeed, the natural law account that I will be defending
here is premised on the idea of a natural right of the individual to self-defense.

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restorative forceafter the threat has ceased to be imminentbelongs

entirely to the authority of the state.
But why this allocation of authority? To understand it, it will be necessary to take a brief historical tour of the origins of the imminence rule.
The restriction is quite old, dating back at least to ancient Roman law. As
Frederick Russell explains in his classic work The Just War in the Middle
Ages, though Roman law recognized a fundamental right of self-defense
against unjust violence, it limited the conditions for exercise of the right
by the concept of incontinenti.34 This means, as Russell says, the immediate repulsion of a violent attack on ones person. . . . By contrast, repulsion of violence ex intervallo, after a delay, was considered culpable.35 It is
less than fully clear just what immediate meant for the Romans. For
some commentators this meant self-defense was limited to the same day
as the attack; for others, it could take up to a year, so long as the victim
did not interrupt his efforts by turning to other matters.36 The rationale
for this rule, as Russell interprets it, was to distinguish sharply between
permissible defense and impermissible vengeance, and thus to avoid protracted violence of the feud or vendetta. Administering vengeance was the
province of the court system, not the individual. Thus Placentinus, arguing that defense must take place on the same day, justified this restriction
on the grounds that a day was sufficient time to summon help from the
authorities (though why others such as Azo considered the period of
imminence to be as long as a year is less clear).37 In any case, the fundamental justification for the permission to resort to private violence in selfdefense was that the public authorities would not be able to protect the
individual against an immediate attack. Ciceros famous defense of Milo
(52 BCE) eloquently expresses this position: When arms speak, the laws
are silent, they bid none to await their word, since he who chooses to await
them must pay an undeserved penalty ere he can exact a deserved one.38
Early Christian thinkers such as Ambrose and Augustine in the fourth
century insisted that individual self-defense was inconsistent with Gospel
teachings, and that force was legitimate only when directed by the public
34. Frederick H. Russell, The Just War in the Middle Ages 42 (1979).
35. Id.
36. Id. at 4243.
37. Id.
38. Cicero, Pro Milone, in The Speeches 3, 17 (Nevile Watts trans., 1964).

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authority. This radical rejection of the principle of vim vi repellere (force

may be used to repel force) grounded both in natural law and in basic
human instinct, was bound not to last, and important Christian authorities such as Isidore of Seville (560636) revived the natural law principle
of legitimate self-defense. Gratians Decretum and the Decretists (twelfth
and thirteenth centuries) reaffirmed the Roman position that force may be
resisted incontinenti.39 Thus, the use of force in revenge or punishment
belonged to the prince to administer, but self-defense was permitted to the
individual without the need for the authority of the prince; as Raymond
of Penafort (11801275) explained, by law it is permitted for anyone to
repel force with force, immediately (incontinenti) and with the moderation
of blameless defense.40 Thomas Aquinas, in his Summa Theologica, gives
a clear formulation of the principle of the monopoly of force as it developed by the thirteenth century. Aquinas affirms that only the public
authority is permitted to use force: For it is not the business of a private
individual to declare war, because he can seek redress of his rights from the
tribunal of his superior.41 However, the one exception to this is the case
of an immediate threat: If, however, the peril be so sudden as not to allow
of the delay involved by referring the matter to authority, the mere necessity brings with it a dispensation, since necessity knows no law.42
In practice, this limitation was ineffective throughout much of the
Middle Ages, given the lack of political unity, and the waging of private
war was a persistent problem. The state monopoly on force, with the sole
exception for individual self-defense against an imminent threat, only
gradually became established during the crucial formative period of the
modern world order in the sixteenth and seventeenth centuries, the period
of transition from feudal Europe to the modern Europe of sovereign
states.43 Essential to this development was the elimination of private
war by channeling it into the modern idea of self-defense.
39. Gratian, Decretum, Part II, Causa 23, in The Ethics of War 104, 110 (Gregory
Reichberg et al. eds., 2006).
40. Raymond of Penafort, Summa de Casibus Poenitentiae 18 (12341245), quoted in
The Ethics of War, supra note 39, at 139.
41. Saint Thomas Aquinas, Summa Theologica II-II.Q. 40 A.1 (Fathers of the English
Dominican Province trans., 2d rev. ed. 1920), available at http://www.newadvent.org/summa.
42. Id. I-II Q. 96. A. 1.
43. G.N. Clark, The Seventeenth Century 140 (2d ed. 1961).

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The many jurists and philosophers who contributed to this modern

synthesis included Francisco Vitoria (14851546) and Alberico Gentili
(15521608), but especially Hugo Grotius (15831645). Grotius, writing
during the devastating European wars of religion, sought a secular foundation for social order, based on natural law principles rather than
Christian doctrine. His great treatise The Rights of War and Peace (1625)
raised Senecas famous question: Why do we restrain homicide, and the
murder of individuals, but glory in the crime of slaughter, which destroys
whole nations?44 That is, why do we permit nations to wage war, but
restrict individuals from using violence? Grotius answer is that wars are
only permissible when they are for a just cause. But the difference between
nations and individuals is that nations are in effect in a state of nature, not
of civil law: where the power of law ceases, there war begins. War may
be the only way nations have to vindicate their rights. In contrast, for individuals in civil society, there are methods in law to prevent intended
injuries, as well as actions for those actually [i.e., already] committed.45
Thus individuals are not permitted to resort to force to vindicate their
rights, because the state exists for that purpose. The only exception to this:
when our lives are threatened with immediate danger, it is lawful to kill
the aggressor, if the danger cannot otherwise be avoided.46 When under
an immediate threat, the individual is unable to invoke the protection of
the state, and so has entered what is in effect a state of private war, justifying him in using extreme force.47 While we today no longer recognize
the idea of private war, we have inherited this rule of self-defense,
grounded in the essential limitation to cases of imminent threat, where
government assistance is not available.
The imminence rule thereafter became a fixture in the discussions of
the private resort to violence. Pufendorf s On the Duty of Man and Citizen
(1673) articulates this same principle, that persons who are subject to civil
authority are severely limited in their right of self-defense:
But those who are subject to civil government are only justified in using
violence in self-defense when time and place do not allow appeal to the
44. Hugo Grotius, The Rights of War and Peace 74 (A.C. Campbell trans., 2003).
45. Id. at 75.
46. Id. at 76.
47. Id. at 76. Cf. id.: The danger, again, must be immediate (praesans) and on the spot
as it were (quasi in puncto).

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assistance of the magistrate to repel an injury by which life or some irreplaceable good, as valuable as life itself, is thrown into immediate danger.
But this is confined to repelling the danger; vengeance and a guarantee
against attack in the future must be left to the judgment of the magistrate.48
John Lockes Second Treatise of Government (1690) reiterates the argument:

Thus, a thief whom I cannot harm, but by appeal to the law, for having
stolen all that I am worth, I may kill when he sets on me to rob me but of
my horse or coat, because the law, which was made for my preservation,
where it cannot interpose to secure my life from present force, which if lost
is capable of no reparation, permits me my own defense and the right of
war, a liberty to kill the aggressor, for remedy in a case where the mischief
may be irreparable. Want of a common judge with authority puts all men
in a state of Nature; force without right upon a mans person makes a state
of war both where there is, and is not, a common judge.49
And the eighteenth-century French philosopher Montesquieu, in The

Spirit of the Laws (1748), held that:
Among citizens, the right to natural defense does not carry with it a necessity to attack. Instead of attacking, they have the recourse of the tribunals.
Therefore, they can exercise that right of defense only in cases that occur so
suddenly that one would be lost if one waited for the aid of the laws.50
William Blackstones extraordinarily influential Commentaries on the Laws

of England (17641769) stated the imminence rule as part of English law:
This right of natural defence does not imply a right of attacking: for,
instead of attacking one another for injuries past or impending, men need
only have recourse to the proper tribunals of justice. They cannot therefore
legally exercise this right of preventive defence, but in sudden and violent
cases; when certain and immediate suffering would be the consequence of
waiting for the assistance of the law.51
48. Samuel Pufendorf, On The Duty of Man and Citizen 49 (Michael Silverthorne
trans., 1991).
49. John Locke, Two Treatises of Government 280 (Peter Laslett ed., 2003); cf. id.
at 404.
50. Charles de Secondat Montesquieu, The Spirit of the Laws 138 (Anne M Cohler,
Basia Carolyn Miller, & Harold Samuel Stone trans., 1989).
51. 4 William Blackstone, Commentaries on the Laws of England 184 (1962).

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And following Blackstone, the imminence restriction first starts appearing

in legal treatises in the late eighteenth century, where it has remained ever
since, at least until today.52
This particular allocation of the authority to use force is a response to
the fundamental political concern of regulating and controlling the use of
violence in society. The first task of government is providing security to its
citizens; internal security is no less important than external security. The
self-defense rules developed in order to control private violence, which
posed a constant threat of internal anarchy (nor was the problem of violence limited to the barroom paradigm of two strangers confronting
each other in a public place, as Cynthia Gillespie and other battered
women advocates suggest). As Grotius and others recognized, the deeper
moral and political problem is the need to ensure as far as possible the
objectivity and disinterest of those who are authorized to use force. Thus
Grotius declares, it is much more conducive to the peace of society for a
matter in dispute to be decided by a disinterested person, than by the partiality and prejudice of the party aggrieved.53 The Public Authority criterion
thus ultimately rests on the venerable natural law principle (also dating
back to ancient Rome) that no one should be a judge in his own case; the
decision to use force against another person must be made by an objective
and disinterested authority.54 We go to great lengths to ensure the objectivity of such decisions: independent judges, unbiased juries, strict rules of
evidence and procedure, the right to appeal, etc. The use of force must be
justified by an objective authority in a position to decide without bias or
52. Rosen, supra note 10, at 387 n.45. We cannot therefore accept Rosens historical
skepticism about the imminence rule, that it is apparent that the imminence requirement
does not have an unquestioned historical lineage as a fundamental requirement for a finding of self-defense. Id. This is of course not to deny that different legal traditions have not
always consistently endorsed the rule, for complex historical reasons.
53. Grotius, supra note 44, at 55.
54. See, e.g., Publius Syrus, The Moral Sayings of Publius Syrus, a Roman Slave 51
(D. Lyman trans., 1856) (No one should be a judge in his own cause.); Edmund Burke,
Reflections on the Revolution in France 89 (1962) (One of the first motives in civil society, and which becomes one of its fundamental rules, is, that no man should be judge in his
own cause.); Federalist No. 10 (No man is allowed to be a judge in his own cause, because
his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.)
(Madison).

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interest in the case.55 Thus the state reserves the right to the use of retaliatory (punitive) force against past harm, as well as preemptive/preventive
force against future threats. The single exception to this principle is where
the immediacy of the threat rendered it impossible to resort to external
protection, and thus licensed self-help. Even in such cases, notably, the
state has always reserved the right to be the arbiter after the fact as to
whether the defensive force used was justified from an impartial perspective. Note that this analysis suggests a pragmatic standard for defining the
imminence restriction: a threat is imminent when there is insufficient
time to enlist the aid of the authorities to protect oneself.
I V. I M M I N E N C E A N D T H E BAT T E R E D WO M A N
Having set out the underlying rationale for the imminence rule, it remains
for us to address the problem of the application of this rule to battered
women. This discussion must be more tentative, given the enormous complexity of the issue and the vast literature on the subject, and there is no
attempt here to settle this debate. Nonetheless, if the argument of this essay
is correct, then the debate itself has been so far conducted on mistaken
premises about the rationale for the imminence rule. A proper understanding of the imminence rule demonstrates that, even as regards battered
women, there are strong grounds for retaining the requirement in its present form. It should go without saying, of course, that to make such an argument is not in any way to diminish the seriousness of the problem of
domestic violence. The very limited issue here is whether the solution to
this problem is the suspension or alteration of the imminence restriction.
The thesis of this essay is that the imminence rule reflects a powerful presumption against the individual using force in her own protection. Even if
one accepts this thesis, however, it is possible to argue that certain individuals are entitled to a waiver of the imminence rule. For there is an important
corollary of the thesis not yet made explicit: if the imminence restriction is
premised on the fact that the state can otherwise provide protection against
violence, it follows that if the state is unable to do so then the imminence
55. Both Hobbes and Locke also made the need for a central, objective decision making
authority central to their theory of the social contract. See discussion in Richard Tuck, The
Rights of War and Peace 12639 (1999).

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rule is suspended. In that case, the right to use preemptive (or even retaliatory force) could, it might be argued, revert back to the unprotected individual or group. Hence one way of interpreting (or reconstructing) the
position of battered women advocates is that they can endorse the thesis of
this essay, but claim that battered women are not adequately protected by
the state, and hence should be exempted from the imminence rule.
However, any individual or group claiming a special exemption from the
societal monopoly on force must meet a very high standard indeed. No
society, of course, can ever be even close to perfectly effective in preventing
illegal violence and guaranteeing justice, nor is the imminence restriction
premised on any such utopian ideal. The declaration of a return to a state
of nature is an extraordinary claim, appropriate only in the most extreme
and unambiguous circumstances. The classic case is the true state of nature
where there is no effective state presence at all and hence no access to judicial procedure, for example, as Hugo Grotius explains, on the seas, in a
wilderness, or desert islands, or in any other place where there is no civil
government.56 More pertinent to the battered woman, however, are two
other kinds of cases. First, in kidnap cases where the victim is wholly in the
power of her captors, it is widely accepted that, at least in some cases, a captive can use deadly force against her captor even in the absence of an imminent threat. Second, in cases where the state systematically and deliberately
denies legal protection entirely to an individual or a group (for example,
black slaves in the antebellum South or Jews in Nazi Germany), there is a
strong case for declaring a return to the right to private violence.57 The
question for us then is whether the situation of battered women can be
considered a return to the state of nature on either of these two grounds.
It is in fact frequently suggested that battered women are in situations
amounting to hostage or captivity, given the difficulties for women trying
to leave an abusive relationship, including threats of retaliation if they try
to leave. Martha Mahoney, for example, argues that a batterers threats
against a woman create an imprisoning effect that provides a persuasive
analogy with hostages or prisoners of war, hence helps shift the paradigm of the battered woman to the image of a hostage resisting her own
56. Grotius, supra note 44, at 56.
57. For a discussion of some of the limits on the permissibility of private violence, even
in a slave state, see Kent Greenawalt, Violence: Legal Justification and Moral Appraisal, 32
Emory L.J. 437 (1983).

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death.58 It is true that, where a woman is genuinely held captive by her

abuser with no possible escape or recourse to the authorities, she would
legitimately be entitled to use force even absent an imminent threat.
However, one should be cautious of relying on analogies or paradigms as
the basis for allowing homicidal self-help. The woman who is literally held
captive by her abuser and is unable to leave or call for help is in the state of
a kidnap victim, and would be justified in using preemptive force to free
herself. But difficulty in leaving is not equivalent to genuine captivity; as
Ferzan explains, a woman is not a hostage simply because social and economic factors make leaving more difficult.59 Donald Downs similarly criticizes Lenore Walker and Judith Herman for using the concept of captivity
loosely, rendering it applicable to all or most battering relationships;60 for
example, financial dependence or emotional dependence cannot constitute captivity, he warns, unless we unwisely stretch the legal notion of captivity or being kidnapped.61 It is doubtful whether we want juries making
highly subjective judgments about what image fits a battered woman, for
the tendency would be towards an inevitable loosening of the standards for
the use of force, and hence a substantial erosion of the imminence rule.
Others have suggested that battered women should be exempted from
the imminence rule on the grounds of the wholesale denial of legal protection to battered women in our society. It is of course not at all obvious
who comprises this group: all women who have ever been physically
struck (or suffered psychological or sexual abuse, as Lenore Walker maintains)? All abuse victims whatever, male or female? Only those women
who have been subject to repeated beatings? Only those women who are
unable to leave the relationship, for whatever reason? Only those who have
tried to avail themselves of the authorities but been refused? But even
beyond the problem of delimiting the class of those exempt from the rule,
58. Martha Mahoney, Legal Images of Battered Women: Redefining the Issue of
Separation, 90 Mich. L. Rev. 1, 87, 92 (1991). Mahoney even seems to suggest a purely subjective standard, i.e., the womans conviction that her abuser seems omnipotent and
inescapable suffices to trigger the right to kill him. For a discussion of the dangers of such
a subjectivization of the right to violence, see below.
59. Ferzan, supra note 1, at 254 n.221.
60. Downs, supra note 5, at 247.
61. Id. at 246. Cf. Greenawalt, supra note 57, at 481: The rule permitting deadly force
in response to kidnapping does not reflect a general moral view that every unjust deprivation of liberty warrants such force.

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there is a deeper issue here: the analogy with cases of total and systematic
exclusion (slaves, Jews in Nazi Germany) is highly questionable. Indeed,
given the extraordinary attention paid to protecting battered women since
the issue became prominent three decades agoincluding the passage of
domestic violence reform statutes in all fifty states, the federal Violence
Against Women Act, statutes authorizing mandatory warrantless arrests
for misdemeanor assaults in domestic violence cases, specialized domestic
violence courts in some states, statutes authorizing expert testimony on
battered womens syndrome, mass clemencies for convicted battered
women killers (including twenty-five women freed in Ohio in 1991), and
even the rise of an entire new tort for battered womenit would be difficult to defend the claim that women in general, or abused women in particular, are systematically excluded from the protection of the law. One
can of course acknowledge the seriousness of the problem of domestic violence and the need for the government to do much better in protecting
victims of abuse, without resorting to the nuclear option of declaring
that battered women are in a state of nature and may resort to any force
they see fit against their abuser.
Consider for example the standard that some commentators have suggested for suspension of the imminence rule: when the state is not effective in protecting the individual, she may resort to violent self-help.62 The
problem is that the notion of effectiveness is so vague and open-ended,
it would exceedingly complicate jury trials, resulting in lengthy, complex
debates over how to define effective, whether the state was effective, and
just how effective it had to be before force was justified. It is doubtful that
such a standard could constrain the danger of the resort to vigilante violence, and there is a great danger of sliding down the slippery slope to
cases such as Bernhard Goetz, who felt justified in resorting to vigilante
justice on the grounds that the state was not doing enough to keep the
streets safe.63 It is worth recalling that the lynching of blacks in the South
was widely defended on the grounds that state punishment was too lax
62. See, e.g., Schopp, supra note 5, at 104; Gauthier, supra note 17, at 618; Murdoch,
supra note 13, at 213.
63. George Fletcher, With Justice for Some 14 (1996). Note also that the notion of failed
effectiveness in protecting women also does not distinguish between effectiveness in protecting against a future threat, and effectiveness in punishing past offenses. If a killer
escapes punishment, can the relatives of the victim carry out their own private vengeance
on grounds that the state was ineffective in avenging the death?

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and too slow to adequately protect Southern women from rape.64 Whereas
in cases of an imminent threat, the individuals judgment is least susceptible to bias or wrongful motives as the danger is clear and unmistakable
because immediate (it is also more easily susceptible to proof of necessity
after the fact), the very opposite may be said of the effectiveness exception: that it is highly susceptible to subjective bias and partiality.
It bears emphasizing that the very rationale for a bright-line rule (or at
least as bright a line as can reasonably be drawn) in the case of violent selfhelp is to minimize the room for the exercise of human judgment as to
when and how much to impose harm on others in order to protect oneself.
Without it, people are likely to overestimate future risks and to err in the
direction of acting preemptively regardless of cost to others, as David
Gauthier warns.65 However, the literature on battered women again does
not appear to acknowledge these inevitable limitations and distortions of
human judgment; thus Downs criticizes Lenore Walker: Nothing in
Walkers writings indicates how we or a jury could divine when a battered
womans perception of danger is not reasonable.66 Indeed, quite the opposite: advocates of battered women repeatedly insist on these womens
enhanced perceptual capacities to recognize imminent threats that would
not be perceptible to the ordinary person, by entering into a state of
hypervigilance which permits them to recognize subtle signs of danger.67
Yet such claims appear to go far beyond any documented evidence demonstrating how reliable such abilities are, how many battered women
develop them, or how to identify which women have them (Lenore
Walker, for example, simply tells us unhelpfully that behavioral principles
support this conclusion68). Elizabeth Schneider, despite repeatedly
admonishing us not to generalize about battered women since each case is
64. See Edward Ayers, Vengeance and Justice 246 (1984).

65. Gauthier, supra note 17, at 617.
66. Downs, supra note 5, at 226.
67. See, e.g., Moriarty, supra note 1, at 26 (hypervigilant awareness of danger is one of
the signposts of a person suffering from post-traumatic stress disorder); Walker, supra
note 4, at 243 (research demonstrates that one of the psychological effects of violence is
that the victim becomes hypervigilant to any cues of impending danger); Kit Kinports,
Deconstructing the Image of the Battered Woman, 23 St. Louis U. Pub. L. Rev. 155, 180
(2004) (research shows that battered women tend to become hypersensitive to their
abusers behavior and to the signs that predict a beating).
68. Legal Responses to Wife Assault, supra note 4, at 243.

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unique,69 insists nonetheless that juries be informed that the battered

womans prediction of the likely extent and imminence of violence is particularly acute and accurate.70 Such sweeping generalizations would in
effect bypass the imminence rule by stipulating the presence of a danger
that only the battered woman, with her supernormal capacities, would be
capable of recognizing.71 No doubt some women do develop such capacities, but it is of course equally possible that victims of repeated abuse
develop the opposite tendency, and become hypersensitive to signs of danger even where they do not exist, or become subject to the natural human
tendency towards self-serving bias in regards to the use of force against
others in self-protectioni.e., the very reason for the imminence rule in
the first place.
Equally important, the imminence rule serves to limit the influence of
retaliatory motives in the individuals judgment (as well as the jurys judgment) as to when force is appropriate against another. Women no less than
men are of course influenced by retaliatory motives, a fact that must be
kept in mind even for cases of battered women. Unfortunately, advocates
for homicidal battered women all too often idealize them as innocent victims of circumstances, and neglect the possibility that anger or retaliatory
motives can easily distort ones perceptions of the need to resort to present force in self-defense (or even be the central motivation for the violence). Cynthia Gillespies failure to treat this issue in her Justifiable
Homicide exemplifies this problem; in her portrayal, women always act
out of fear, but never rage or revenge, in stark contrast with the portrayals
69. Elizabeth Schneider, Battered Women and Feminist Lawmaking 120, 124, 136
(2000).
70. Id. at 131. See also Downs, supra note 5, at 231; Kinports, supra note 67, at 180 n.138;
Mary Ann Dutton, Empowering and Healing the Battered Woman 61 (1992). Oddly, the
concept of hypervigilance as used in discussions of PTSD more generally seems typically
to emphasize the very opposite: the increased unreliability of perception of danger due to
repeated stress. Thus Jonathan Shay describes the hypervigilance of returned soldiers as the
inappropriate reaction to perceived risk and as the loss of trustworthiness of perception.
Jonathan Shay, Achilles in Vietnam 17274 (1995). See also Jane Moriartys characterization
of PTSD victims as tending to respond to perceived events in an exaggerated manner
because of compromised sensory perceptions. Moriarty, supra note 1, at 182 n.145.
71. See, e.g., Schopp, supra note 5, at 13; cf. Downs, supra note 5, at 226. Nor should
we overlook the obvious potential for abuse of an after-the-fact claim that there was an
imminent threat visible only to the defendant.

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of the men in her book, who are regularly depicted as motivated by anger
and a desire to retaliate against their spouses. Nor is this one-sided portrayal unique to Gillespie. As Belinda Morrissey argues, Rage has traditionally been denied in representation of women in Western societies. . . .
Even Lenore Walker, who acknowledges its existence, downplays the significance of anger as a catalyst when battered women kill, claiming that
fear is the most important factor in these homicides.72
But it is hardly plausible that none of these women, enduring the abuse
that Gillespie describes, were at all motivated by anger towards their tormenter or a desire to retaliate against him. Indeed, there is evidence of a
retaliatory motive even in some of the textbook cases, including the case
of Judy Norman: her therapist testified that the day before the killings,
Norman expressed considerable anger toward her husband and said she
should kill him because of the things he had done to heri.e., for past
wrongs rather than future threats.73 Dershowitz suggests that Lorena
Bobbitt may also have been motivated by retaliation; there is evidence that
her attack may have been an attempt to get back at her husband when he
said he was leaving her.74 Numerous commentators have warned that
expanding the law of self-defense would in effect license retaliation:
George Fletcher suggests we are witnessing the beginning of a transformation of the battered womans syndrome into a general defense of abuse
as a justification for retaliation.75 Dershowitz also sees a growing justification for vigilante violence by those who claim they cannot receive justice from the legal system.76 Joshua Dressler argues that the underlying,
unstated premise in many battered women cases is that the woman is justified in killing her abuser for the simple reason that he deserves it.77
Indeed, some feminists have even explicitly argued that the battered woman
should be allowed to carry out vigilante justice and punish her abuser.78
72. Belinda Morrissey, When Women Kill 98 (2003).
73. State v. Norman, 378 S.E.2d 8, 1011 (N.C. 1989).
74. Alan M. Dershowitz, The Abuse Excuse 58 (2000).
75. Fletcher, supra note 63, at 140.
76. Dershowitz, supra note 74, at 59.
77. Joshua Dressler, Battered Women Who Kill Their Sleeping Tormentors, in
Criminal Law Theory 259, 269 (Stephen Shute ed., 2002).
78. See Elizabeth Ayyildiz, When Battered Womans Syndrome Does Not Go Far
Enough: The Battered Woman As Vigilante, 4 J. Gender & L. 141, 148 (1995), cited in
Dressler, supra note 77, at 271.

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Relaxing the imminence rule only invites retaliation by blurring the line
between defensive force and retaliatory after-the-fact force.79
Finally, we need to address one more indirect attack on the imminence
rule: the argument for subjectivizing the perception of imminence.
Variously described as reinterpreting imminence, contextualizing it, or
subjecting it to a narrative logic, the idea is the same: should a woman
believe she is in imminent danger, she is justified in resorting to force,
whether or not her belief was objectively valid or even reasonable. At its
extreme, this position draws on a postmodernist, relativist theory of
womens ways of knowing, for example Lenore Walkers notorious claim
that a concern solely for facts and rationality reflects male thinking,
whereas to women opinions count as much as facts.80 Most commentators of course avoid such excesses and acknowledge the objective reality of
whether there was an imminent threat or not. Even so, they may adopt
equally dubious strategies, such as insisting on individualizing or subjectivizing the concept of reasonableness, a strategy that Richard Schopp
has rightly criticized as incoherent, since the very notion of reasonableness
entails adherence to common, shared standards of inference and evidencegathering.81 Alternatively, victim advocates sometimes suggest eliminating
the reasonableness requirement altogether in favor of a purely subjective
standard: if the victim felt in danger (even if there was no real danger),
then she was justified in using force.82 It is even sometimes suggested that,
79. Dershowitz gives one example of such a blurring from Lorena Bobbitts lawyer, who
claimed an after-the-fact self-defense: Moments after the last rape, he was cut. Thats about
as fundamental a self-defense plea as you can ask for. Dershowitz, supra note 74, at 58.
80. Lenore Walker, Terrifying Love 257 (1989); cf. Legal Responses to Wife Assault,
supra note 4, at 243; Downs, supra note 5, at 81. Elizabeth Schneider comes close to endorsing such a view in suggesting that the very concept of objective inherently embod[ies]
male values. Schneider, supra note 69, at 139. One occasionally comes across the claim
that victims in general have access to a higher or more special form of truth.
81. Schopp, supra note 5, at 9192. Equally problematic is the idea of a reasonable battered woman standard; see criticism in Maguigan, supra note 11, at 44350, Schopp, supra
note 5, at 100.
82. The Model Penal Code notably drops the reasonableness requirement, so that honest
belief alone suffices. Model Penal Code 3.04(2)(1) (Proposed Official Draft 1962) (defendant charged with murder need only show that he believe[d] that [the use of ] deadly force
was necessary). See discussion in Schopp, supra note 5, at 10002. Several states follow this
rule, though the majority require that the belief be not only honest but reasonable as well.

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to the battered person, the threat always feels imminent83thus licensing violence at any time or place, if one accepts the subjective standard of
imminence.
But any such radical subjectivization of the law of self-defense, even apart
from the moral relativism on which it is based, overlooks the problem of
potential bias in ones perception of the need for the use of force against others. Indeed, it would legitimize those biases by accepting them as valid legal
defenses. Such a position ignores the idea of responsibility to others, especially when it comes to the use of deadly force; merely feeling afraid of someone else does not entail the right to shoot him. The criminal law exists in part
to demand that individuals live up to higher standards of moral responsibility than they might otherwise. Nor would civil society even be possible if
each individual were granted a license to resort to vigilante violence any time
he felt in danger. Not only would such a law be subject to gross abuse, but
recall that the very reason for the objective imminence standard in the first
place is the natural human tendency to overreact to possible future threats,
and to err on the side of imposing costs on others rather than risk any danger to oneself. It bears emphasizing that the victim of the killing will not be
available to rebut the claim that he was presenting an imminent threat. It is
certainly possible to consider unreasonable mistakes as excusing (rather than
justifying) conditions, but even here it is important that the law insist that
people aspire to the highest possible standard of objectivity, particularly when
making a decision about taking the life of another. As David Gauthier argues,
A legal system which failed to recognize the right, which failed to recognize
the justification each person has to act in her own protection in the light of
imminent danger, could have no valid claim on the allegiance or obedience
of those it sought to bring within its sway. But in recognizing the right, the
law brings self-defense within its ambit; while it may not deny the right, it
may and must, of course, delimit it. The right of each person to defend herself is not, and could not be understood as, a right to do whatever she might
allege to be required for her defense. Such a subjectivism would be altogether corrosive to a legal system.84
83. Sheryl McCarthy, Injustice After All, USA Today, May 9, 2006, at 15A, available at
http://www.usatoday.com/news/opinion/editorials/2006-05-08-forum-injustice_x.htm?
csp=34 (May 8, 2006).
84. Gauthier, supra note 17, at 616. For other critiques of subjectivism, see George
Fletcher, A Crime of Self-Defense 6162 (1988); Downs, supra note 5, at 20450; Stephen
Morse, The New Syndrome Excuse Syndrome, 14 Crim. Just. Ethics 3, 316 (1995).

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CONCLUS ION
In recent years we have seen a major attack on the imminence rule, especially in its application to battered women. The wide range of proposals
for modifying the imminence restriction for battered women include
eliminating the rule entirely, subordinating it to necessity, modifying it,
supplementing it, making it more flexible, subjectivizing it, contextualizing it, broadening it, and so forth. My purpose here has been to sound a
cautionary note in this debate. While there may well be some genuine
cases where the application of the imminence rule serves an injustice, one
ought to be very careful in tinkering with a crucial limitation on the right
to violent self-help. This is particularly important given the serious doubts
that have been raised about whether the proposed reforms would have
much impact on battered women homicides. As Holly Maguigan emphasizes, the existing law of self-defense in most jurisdictions is consistent
with the self-defense claims of battered women who kill; to the extent
there is a problem, it has to do with unfair application of existing law,
not with the current standards of self-defense per se.85
The imminence rule, as we have seen, is a crucial, independent restriction
on the individual right to resort to violence against others, especially deadly
violence. The first task of the state is the control of violence, and the restriction of individual violence to cases of genuine emergency when there is no
recourse to state protection is crucial to establishing this monopoly on violence. Civil life is, as Pufendorf warned, too fragile to allow each man to
exact what he believes to be his due by violent self-help.86 Moreover, it is an
essential element of the rule of law that each personeven batterershave
a right to due process of law, especially when their lives are at stake. If the
rules of self-defense permit an exception to this principle in the case of imminent danger, it is an exception that is best kept to an absolute minimum. As
Joshua Dressler cautions, we should hesitate long and hard before we promote a criminal defence that categorically justifies the taking of life before it
is immediately necessary.87 Before we proceed with any modification (let
alone elimination) of the imminence restriction, we had better consider very
carefully the implications of such a radical change in the long-established and
highly effective principles controlling the private resort to violence.
85. Maguigan, supra note 11, at 458.
86. Pufendorf, supra note 48, at 156.
87. Dressler, supra note 77, at 275.


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Self-Defense, Imminence, and the Battered Woman

Author(s): Whitley R.P. Kaufman

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*Department of Philosophy, University of Massachusetts Lowell.

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the appropriateness of applying the imminence rule to women who claim to

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The traditional elements of self-defense are four in number. First, the

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be misleading to insist on too precise a distinction between these two

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(indeed she may be financially dependent and unable to leave). Being

The first account, recently developed but increasingly influential, asserts

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imminence there is no assurance that the defensive action is necessary to

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Ferzan is right to insist on the distinction between imminence and

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restorative forceafter the threat has ceased to be imminentbelongs

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authority. This radical rejection of the principle of vim vi repellere (force

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The many jurists and philosophers who contributed to this modern

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John Lockes Second Treatise of Government (1690) reiterates the argument:

And the eighteenth-century French philosopher Montesquieu, in The

William Blackstones extraordinarily influential Commentaries on the Laws

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And following Blackstone, the imminence restriction first starts appearing

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death.58 It is true that, where a woman is genuinely held captive by her