2/5/15

By Olivia C. Jerjian, ACLR Featured Blogger

After spending 1,095 days—approximately three years—in jail, Marissa Alexander was finally released this past January, subsequent to pleading guilty to aggravated assault.1 Alexander was incarcerated in 2012 after firing a single gunshot towards the ceiling of her home in an attempt to scare her estranged husband, Rico Gray.2 In the events leading up to firing the shot, Gray broke through the locked bathroom door, grabbed Alexander by the neck, and shoved her into the bathroom door. Struggling, Alexander made her way to the garage. She tried to escape, but the garage door would not open. Alexander then grabbed her gun from her car and returned to the house, uncertain whether Gray had left. When Gray saw Alexander with a gun, he “charged her ‘in a rage,’ saying, ‘Bitch, I'll kill you.’”3 Frightened, Alexander shot the gun at the ceiling. No one was harmed.

This incident followed a long line of abusive acts against Alexander.4 Gray had previously choked her, attempted to strangle her, regularly threatened to kill her, and violently shoved her on a frequent basis, causing her to be hospitalized. Alexander obtained an Injunction for Protection Against Domestic Violence against her estranged husband in 2010,5 a few days after giving birth to their baby. She had returned to their home to retrieve her belongings on the day the altercation occurred.6 Charged with three counts of aggravated assault (one for Gray and two for Gray’s sons, also present), Alexander claimed prosecutorial immunity under Florida’s Stand Your Ground law (“SYG”). However, the judge denied her immunity, and a jury sentenced her to twenty years in prison.7 Alexander appealed and was granted a new trial due to erroneous jury instructions; however, the court affirmed Alexander’s previous denial for immunity under SYG.8

Compare Alexander’s case to that of George Zimmerman. Why did Florida’s SYG law nearly protect a man who approached a stranger on the street and killed him, while a woman who fired a shot to protect herself from her abusive husband, without inflicting injury to anyone, was denied immunity under the same law? While SYG appears to protect women, it in fact discourages victims of domestic violence and interpersonal sexual violence from using force as self-defense. Denied from prosecutorial immunity under SYG, many victims turn to anchoring their self-defense arguments in the Battered Women’s Syndrome psychological model—a narrative that discourages female violence against abusers and maintains the status quo. In order to better protect women from abuse and violence, the Florida legislature should amend its SYG law to allow them to defend themselves without legal repercussions.

Florida became the first state to adopt a SYG law in 2005. Based on the British common law on self-defense, SYG eliminates the duty to retreat when using self-defense and expands the “Castle Doctrine.”9 The statute contains two additional unusual components: immunity from arrest and prosecution for anyone falling under the statute10 and a presumption that a person facing an intruder in a dwelling or residence possesses fear of death or great bodily harm.11 Stranger yet, SYG also presents several exceptions in which the person using deadly force is denied the presumption of reasonable fear—thus, prosecutorial immunity—including if “[t]he person against whom the defensive force is used or threatened has the right to be in or is a lawful resident of the dwelling, [or] residence . . . such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision of no contact order against that person” (emphasis added).12 This exception is particularly problematic for victims of domestic violence who live with their abuser because it denies them the SYG defense if they do not have a valid protective order.

Florida’s SYG law fails to protect women like Marissa Alexander because many victims live with their abusers and are deterred from getting protective orders. Proponents of SYG, such as the National Rifle Association (“NRA”), have argued that the law allows women to protect themselves from harassers and rapists on the street.13 However, this argument focuses on women who are victims at the hands of strangers and overlooks victims who live with their abusers, such as husbands and live-in partners. In fact, women are victimized at home more so than in any other place,14 most likely by intimate partners who live with them. Despite this statistic, the Florida legislature has specifically excluded co-habitants from using SYG against one another, including female violence against live-in abusers. This creates a duty to retreat in one’s own home. Proponents of SYG argue that the legislature has a legitimate interest in keeping gun violence and use of deadly force out of homes between roommates and family members, for example. Nevertheless, imposing a duty to retreat on victims of domestic violence in their own “castles” puts them in a precarious situation in a place where they should feel the safest, defeating the purpose of SYG.

Furthermore, the prerequisite of a protective order to qualify for SYG immunity constitutes yet another barrier for victims of domestic violence as many battered women do not get protective orders against their abusers. According to the Stalking Resource Center, only twenty-eight percent of female victims obtain a protective order.15 Victims are often reticent to report their abusers for reasons such as fear of retribution, economic dependence on the abuser, social isolation, extremely low levels of self-worth, and fear of losing custody of the children.16 Additionally, protective orders do not even guarantee immunity in many cases. For example, Marissa Alexander had a protective order against her estranged husband in 2010, before the incident that landed her in jail occurred. However, the protective order expired by the time of the altercation, and she was thus denied immunity under SYG. Mary Anne Franks even argues that having a valid protective order will not guarantee the SYG benefit to a victim of abuse.17 According to Franks,

[t]he law states that the presumption of reasonableness in using deadly force does not apply against a co-habitant against whom there is no order of protection . . . That is not the same thing as stating there affirmatively is a presumption of reasonableness in using deadly force against a co-habitant against whom one does have an order of protection. The benefit here is at best ambiguous.18

Therefore, women who are threatened in a home they share with their abuser are significantly disadvantaged when it comes to Florida’s SYG law.

Because abused women who fight back are not protected by SYG, they often turn to a different narrative of self-defense: the Battered Women’s Syndrome (“BWS”).19 For instance, had Alexander not plead guilty, she would have likely used the BWS defense.20 Unlike SYG, which is viewed as an exercise of rights, BWS is presented as a “syndrome,”21 invoking a form of pathological disorder. The narrative of the victim will usually depict a helpless woman who believed she did not have a choice but to kill her abusive partner, as opposed to the narrative of SYG, in which a person claiming it is seen as someone standing up for himself.22 BWS invokes an excuse defense similar to insanity, in which the defendant concedes her actions were wrong but argues that she was so mentally defective that she is not morally blameworthy and cannot be held accountable for her own actions. In contrast to BSW, SYG is a justification defense because the person claiming is morally right in defending himself and his property.23 The dichotomy between the two types of defenses highlights society’s simultaneous rejection of female violence and acceptance of men who assert force against strangers, implying that victims are not justified in defending themselves against their abusers.

Additionally, BSW and SYG present uneven burdens of proof. Unlike SYG, which grants immunity to those who defend their home from invaders, BWS does not grant a presumption of reasonable fear to a woman who can prove a history of abuse against an attacker. BWS requires an extensive process of examinations, in contrast to SYG. If law enforcement determines that someone had “reasonable fear” and, thus, qualifies under SYG, there is no further examination.24 On the contrary, if a woman uses a BWS defense, she must submit to intense psychological evaluations and present extensive evidentiary findings as well as expert testimony,25 which is usually expensive.

The gendered narratives of SYG and BWS follow the historical societal trend of accepting violent men while punishing violent women. The stark contrast between Bernhard Goetz and Judy Norman’s cases in the eighties, often studied in criminal law courses, illustrates society’s simultaneous tolerance for male violence in self-defense and discouragement of female violence against abusers.26 In Goetz, four unarmed young black men approached Goetz in a subway train in New York. One of them asked him for five dollars.27 In response, Goetz fired four shots at the teenagers. When he missed one of the teenagers, he shot him again, severing his spinal cord.28 The state charged Goetz with attempted murder and assault, while Goetz argued that he acted in self-defense as a prior victim of a mugging.29 The jury acquitted Goetz of all charges, except for possession of a concealed weapon, for which he served eight months.30

On the other hand, Judy Norman did not benefit from the same judicial leniency as Goetz. Judy suffered her husband’s abuse for twenty years, including rapes, beatings, forced prostitution, death and mutilation threats, and degrading behavior such as being forced to bark and eat out of dog bowls.31 After attempting suicide, Judy confronted her husband by telling him she was thinking of reporting him. He replied, “if you do, I’ll see them coming and before they get here, I’ll cut your throat,”32 and beat her severely. Judy then went to her mother’s, got a gun, and shot her husband three times in his sleep.33 The Supreme Court of North Carolina overturned the trial court’s ruling, which had granted Judy a self-defense jury instruction, because she did not have a reasonable fear of imminent death or great bodily harm.34 According to the court, Judy had other options besides killing her husband, even though he had abused her for over two decades and had threatened to kill her that same day.35 The court reasoned that giving Judy the self-defense instruction would encourage women to resort to self-help and kill their husbands at any opportunity they could get.36 In the end, Judy was convicted of manslaughter and sentenced to six years.37

The contrast between the fates of Goetz and Judy Norman mirrors the disparity of Zimmerman and Alexander’s cases. Even though both involved self-defense, society accepted Zimmerman’s use of deadly force under SYG, while a jury convicted Alexander when she tried to scare off her violent husband. SYG is an unavailable defense for victims of domestic abuse, who often turn to BSW, perpetuating a weak and pathological image of women. The Florida legislature should amend the SYG statute by removing the explicit protection order requirement and by not mandating an automatic exemption amongst all co-habitants. After all, any woman in Florida who has followed Marissa Alexander’s case would certainly be deterred from defending herself against an abuser to avoid finding herself in the same legal predicament.