No Ground on Which to Stand: Revise Stand Your Ground Laws So Survivors of Domestic Violence are No Longer Incarcerated for Defending Their Lives

When George Zimmerman fatally shot Trayvon Martin in a Florida suburb, the event stirred national attention and outrage toward Florida’s Stand Your Ground laws. Much publicity focused on how the law essentially legalizes racial profiling by excusing defendants who kill racial minorities based on “reasonable” fear. While these ideas convey significant truths about pervasive societal problems, focusing on only one horrendous case as a platform to abolish, or substantially limit, Stand Your Ground laws overlooks the adverse effects such abolition would have on women who respond to domestic violence. Domestic violence is a serious and widespread problem in our society. Women continue to endure severe abuse at the hands of their intimate partners. Given the barriers to safe retreat, it is reasonable for many women to choose to remain in such relationships. Regardless of whether a woman in an abusive † The author will receive a law degree from the University of California, Berkeley, School of Law (Boalt Hall) in 2015. As a law student, the author took the Domestic Violence Law course and participated in the Domestic Violence Practicum at Berkeley Law. She spent a summer at The Law Foundation of Silicon Valley, where she provided legal assistance to underserved minority populations. She spent the following summer at the Santa Clara County Alternate Defender’s Office, where she served clients who were adversely affected by domestic violence, gender biases, and the severely imbalanced criminal justice system. She is grateful to Nancy Lemon, John and Elizabeth Boalt Lecturer, whose Domestic Violence seminar provided the impetus for this piece, and who provided valuable feedback and suggestions. She is also grateful to editorial team of the Berkeley Journal of Gender, Law & Justice for excellent editorial assistance. JACKSON MACRO 2-6 (DO NOT DELETE) 2/12/2015 5:16 PM NO GROUND ON WHICH TO STAND 155 partnership decides to end the relationship, there may come a point when the abuser attacks her with enough force to threaten her life, forcing her to use deadly force to protect herself. When this happens, Stand Your Ground laws are often implicated both in prosecutorial decisions and in legal defenses. Such laws can be important tools for women to assert self-defense successfully. Some might argue that such justifiable killing is adequately covered under basic selfdefense principles, and hence, there is no need for further privilege to stand one’s ground. However, certain affirmative “stand your ground” laws can provide protection from prosecution so the defendant is not vulnerable to the fact finder’s analysis of whether the lethal response was “reasonable” under the circumstances. Both judges and jurors analyze “objective” reasonableness through biased lenses. These biases include male normativity, stereotypes, myths about domestic abuse, and the tendency to blame the victim. Such biases disadvantage women, and, in particular, survivors of domestic abuse. It is time to revise Stand Your Ground laws with this vulnerable population in mind. The most just way for this law to operate is to grant immunity from criminal prosecution for those who defend themselves in their home against abusive cohabitants, and to develop a statutory presumption of fear in a defendant who has endured a history of domestic abuse. INTRODUCTION 156 I. BACKGROUND ON THE RIGHT TO “STAND YOUR GROUND,” AND THEORIES FOR WHY WOMEN IN ABUSIVE RELATIONSHIPS DO JUST THAT 160 A. American Law Births the Self-Defense Doctrine, Creates the Duty to Retreat Exception, and Limits This with the “Castle Doctrine” 160 B. Expansion of the Right to Stand Your Ground: Beyond the Home, the Presumption of Fear, and Prosecutorial Immunity ....... 161 C. “Battered Woman’s Syndrome” and Survivor Theory: Competing Frameworks for Understanding Domestic Violence and Why Women in an Abusive Relationships May Not Retreat .. 162 D. “Why Doesn’t She Just Leave?” (Separation Assault and the Lack of Resources) 165 II. HOW STAND YOUR GROUND LAWS AFFECT SURVIVORS OF DOMESTIC VIOLENCE WHO KILL THEIR ABUSERS AS THE ONLY MEANS FOR PROTECTING THEIR LIVES 168 A. The Application of Stand Your Ground Laws to Women Who Defend Against an Attack from a Cohabitant 168 B. Do Affirmative Stand Your Ground Laws Effectively Shield Survivors of Domestic Violence from Unjustified Prosecution? ... 171 C. If Prosecuted, Fact Finders’ Implicit Gender Biases Deprive Battered Defendants of Equal Treatment Under the Law 173 D. Fact Finders’ Victim-Blaming Mentality Grossly Distorts Their JACKSON MACRO 2-6 (DO NOT DELETE) 2/12/2015 5:16 PM 156 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE Understanding of “The Circumstances” of the Homicide 175 III. PROPOSED SOLUTIONS: THE RIGHT TO STAND YOUR GROUND IN YOUR HOME OR PLACE OF DWELLING, AND IMMUNITY FROM PROSECUTION 176 A. Stand Your Ground Laws Should Grant Immunity So Survivors of Domestic Violence Do Not Become “Defendants” 176 B. The Law Should Permit Battered Defendants to Benefit from Stand Your Ground Laws Regardless of the Attacker’s Property Rights 177 C. When There Is a History of Abuse Documented by the Decedent’s Behavior Towards the Defendant, the Law Should Create a Rebuttable Presumption of Fear 178 D. Response to Potentially Adverse Effects of the Proposed Statutory Changes 179 CONCLUSION 180