Weiand v. State and Battered Spouse Syndrome: The Toothless Tigress Can Now Roar
On March 1999, Florida’s Supreme Court effectively granted Florida women the ability to rely upon battered spouse syndrome as a defense to killing their abuser. Prior to the court’s decision in Weiand v. State, 732 So. 2d 1044 (Fla. 1999), an abused woman’s ability to justifiably defend herself from a physically abusive husband or live-in boyfriend was no greater than that of anyone to defend themselves in a bar fight.1 Although Weiand has wide-reaching implications for any person attacked in his or her home, the unfortunate reality is that women who are attacked by paramours are most likely to be the ultimate beneficiaries of the Weiand holding. Previously, Florida followed the minority rule among states, which imposes a duty to retreat before defending oneself with deadly force. Courts did recognize the limited “castle doctrine” exception, which provides that there is no duty to retreat when attacked in one’s own home. However, prior to Weiand, a gray area existed: What if both assailant and victim lived in that house? Was there a duty to retreat, or could a battered woman rely upon the castle doctrine, stand her ground, and defend herself with deadly force? The law was unsettled. The Weiand decision answers this question.
Kathleen Weiand shot and killed her husband Todd. At trial, Kathleen’s defense was battered spouse syndrome; she lived in such fear of Todd that she had no choice but to kill him, fearing that if she did not, he would kill her. Defense expert Dr. Lenore Walker,2 a clinical and forensic psychologist, testified that Kathleen showed all the signs of battered spouse syndrome and that she believed Todd was going to kill her. However, the court’s jury instruction included the admonition that “[t]he fact that the defendant was wrongfully attacked cannot justify her use of force likely to cause death or great bodily harm if by retreating she could have avoided the need to use that force. ”3 One year after Kathleen pulled the trigger, an eight-woman, four-man jury rejected the battered spouse syndrome defense and convicted Kathleen Weiand of second degree murder for killing Todd. Approximately one month later, Kathleen Weiand was sentenced to 18 years in prison. Florida’s Second District Court of Appeal would affirm her conviction.4 However, because the Florida Supreme Court considered the issue to be of great public importance, Weiand v. State was reargued.
Abused women who live in fear for their lives and who ultimately kill their abuser may suffer from battered spouse syndrome. Battered spouse syndrome is created by a cycle of physical abuse within a relationship. Typically, there are three phases in a cycle.5 Phase one involves minor battering incidents, verbal abuse, and attempts by the woman to placate the man. Phase two involves an “acute battering incident” where the woman is severely beaten. Phase three is one of contrition and loving behavior on the part of the male, which reinforces the woman’s hope for her mate’s reform. Some time later, phase one begins again. The cumulative effect of this cycle of abuse is that the woman becomes perpetually fearful of the man and feels helpless to improve her situation. Killing her abuser becomes her only escape from the relationship.
One of the earliest cases in this country to allow the defense of battered spouse syndrome was State v. Kelly, 97 N.J. 178 (N.J. 1984). In Kelly, the New Jersey Supreme Court held that the existence of battered spouse syndrome was relevant to the honesty and reasonableness of a woman’s claim that she believed she was in imminent danger of death or serious injury. In the first Florida case to mention battered spouse syndrome, the First District Court of Appeal in Hawthorne v. State, 408 So. 2d 801 (Fla. 1st DCA 1982), ruled to allow testimony by Dr. Lenore Walker to explain the reasonableness of the defendant’s belief that she was in imminent danger, if the trial court decided that, “Dr. Walker is qualified and that the subject is sufficiently developed and can support an expert opinion.”6 In most cases where evidence of battered spouse syndrome is admitted, it is solely for this limited purpose. Battered spouse syndrome is only a small part of the traditionally narrow self-defense doctrine.7 It is not, itself, a complete defense.
To justify homicide under any claim of self defense, a defendant must establish the presence of three elements: 1) the defendant believed she must use force against an imminent threat of harm; 2) the amount of force used was proportionate to the threatened harm; and 3) the defendant retreated to the greatest degree reasonably possible.8 Evidence that a woman suffers from battered spouse syndrome addresses part one of this standard, namely, whether the woman honestly feared for her life.
Part three of this tripartite self defense standard, the duty to retreat, is inapplicable in a defendant’s own home because of the so-called “castle doctrine,” or privilege of nonretreat. The castle doctrine provides that if an assailant threatens a victim with violence in the victim’s own home, the victim may turn aggressor without any duty of retreat, and still be able to justify his actions by claiming self defense.
This theory is premised on the notion that “a man’s home is his castle,” hence the name “castle doctrine.” Justice Cardozo explained, “It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home.”9 Florida, and most other states, has adopted the castle doctrine exception to self defense’s duty to retreat.10 Yet, the castle doctrine is not absolute.
Complications arise when both initial attacker/ultimate victim and the initial victim/ultimate killer live in the same home. Under the castle doctrine’s rationale, both parties have an equal right to defend themselves against an attack. In 1982, the Florida Supreme Court, in State v. Bobbitt, 415 So. 2d 724 (Fla. 1982), held that the castle doctrine does not apply where both a criminal defendant and his victim are legal occupants of the same home and have equal rights to be there. In that situation, a victim’s duty to retreat remains intact. In Bobbitt, the defendant shot and killed her husband, who attacked her in their home without provocation. The Bobbitt court grounded its decision on the sanctity of property and possessory rights. Neither victim nor slayer has a greater right than the other to stand his ground and defend against an attack.
For 17 years this ruling placed Florida in a tiny minority of states that still imposed a duty to retreat from a co-occupant/aggressor in one’s own home. This created a marked difficulty for women suffering abuse at the hands of spouses or live-in paramours because Florida law imposed a duty upon women to retreat from their battering spouses. A defense premised on battered spouse syndrome was all but impossible. In 1993,11 the Florida Supreme Court recognized the use of battered spouse syndrome as a valid part of a self defense justification.12
Nonetheless, as a matter of law, self-defense was still nearly impossible for a battered spouse to prove because of the duty to retreat; “[f]ailure to satisfy [all three of] the traditional elements of the self-defense doctrine means that the battered wife syndrome itself will likely fail.”13 Although F.S. §782.02, titled “Justifiable use of deadly force,” does not distinguish between killing an attacker who is a stranger and an attacker who is a spouse, roommate, parent, or paramour, the courts did.
The Supreme Court granted jurisdiction to Weiand on a limited issue; whether the castle doctrine exception to the duty to retreat applies when a defendant is attacked by a member of her own household.
The court examined Florida’s privilege of nonretreat from one’s own residence, acknowledging that it is a creature of common law, not statutory. The court referred to Lord Chief Justice Hale, who wrote 200 years ago that if a man is assailed in his own house, he need not flee as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his adversary by flight. Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home.
In Hedges v. State, 165 So. 2d 213 (Fla. Dist. Ct. App. 1964), the court extended the common law privilege of nonretreat to an instance where the attacker was not an unknown intruder, but an invitee with the defendant’s permission to be in the house.14 After reviewing Hedges, the court revisited the Bobbitt decision.
The court delineated four primary reasons to recede from Bobbitt and its failure to extend the privilege of nonretreat to instances where the aggressor is a co-occupant. The first reason the court gave is that the Bobbitt decision, was “grounded upon the sanctity of property and possessory rights, rather than the sanctity of human life.” This property rights theory was a poor basis for that opinion, given that Hedges extended the castle doctrine to instances where the attacker was an invitee, with a legal right to be on the premises. The court deferred to Justice Overton’s dissenting opinion in Bobbitt and calls this an “illogical distinction,” that afford more protection to a woman who kills her boyfriend who comes over for the night than to a woman whose husband batters her.
Next the court decided to overrule Bobbitt because of its implications for victims of domestic violence. The court’s concern was that imposing a duty to retreat from the home would adversely impact victims of domestic violence. Citing studies and articles that suggest women who back off or away from violent confrontations do more to perpetuate their cycle of violence and victimization than to break it, the court concluded that forcing women to walk away from their abuser may actually increase the threat to their lives, not minimize it. Most pointedly, the court cited a Florida Governor’s Task Force on Domestic Violence report that states, “forty-five percent of the murders of women were generated by the man’s rage over the actual or impending estrangement from his partner.” The court concludes this argument by stating that retaining a duty to retreat from the home handicaps women and wives from defending themselves against an aggressor spouse.
The court’s other concern was that a jury instruction on the duty to retreat would reinforce, legitimize, and strengthen myths and stereotypes about domestic violence. One of the most pervasive myths surrounding domestic violence is that women may leave an abusive situation whenever they want. In Kathleen Weiand’s case, this myth was almost certainly perpetuated. Her jury’s instruction included the duty to retreat, a fact the prosecutor capitalized on when he highlighted the fact that Kathleen did not leave the house or get in her car before picking up a gun. The court feels, as did the Kelly court, that expert testimony on a battered woman’s feelings of helplessness is relevant to the jury’s understanding of the legitimacy of a battered woman’s feelings of imminent harm. To permit a jury instruction that suggests retreat is an option for a battered woman would completely undermine that expert’s testimony.
The court’s final reason to overrule Bobbitt and apply the castle doctrine to domestic abuse situations is based on “The Evolution of Public Policy” since Bobbitt was decided in 1982. Federal regulations have been enacted, such as the 1994 Violence against Women Act, 18 U.S.C.A. §2262, which prohibits crossing state lines to commit violence against “an intimate partner” in violation of a domestic violence protection order, and 18 U.S.C.A. §922, which makes it unlawful to possess firearms or ammunition if one is under a restraining order. All 50 states now have statutes that make spousal abuse a crime. Numerous executive agencies have been established to assist and counsel both victims of domestic abuse as well as their batterers. The Florida Legislature, as well, has passed tougher laws such as F.S. §741.2901(3), which requires that a person arrested for domestic violence must be held until his first appearance and that the court must consider the safety of the potential victim in deciding whether the defendant should be released and in setting the amount for bail. Moreover, the judiciary has reorganized itself so that Florida has eight domestic violence courts, and more than half of the 20 judicial circuits have domestic violence task forces. Florida judges, both circuit and county, receive education and training that specifically address domestic violence related issues. Because Florida’s public policy is “clearly directed at reducing domestic violence” the court felt that the Bobbitt decision should be reversed and no duty to retreat should be imposed upon victims of domestic violence who plead self defense.
The remaining issue for the court, then, is what jury instruction should be given in cases of domestic violence slayings where the defendant claims self defense? Although the court points to no studies that suggest a privilege of nonretreat could result in an increase of domestic violence incidents and homicides, the court is concerned that completely eliminating a duty to retreat might invite violence. For this reason, the court adopted a jury instruction that “imposes a limited duty to retreat within the residence to the extent reasonably possible, but not to flee the residence.”
The court also distinguished between applying the castle doctrine to victims of spousal abuse, and applying it to other defendants attacked by members of their household. For this reason, the court decided to limit or recede from Hedges. Hedges held that there was no duty to retreat from one’s own residence where the attacker was not an intruder, but was an invitee (such as a visiting boyfriend might be) to the premises. The jury instruction indicates that a limited privilege of nonretreat should apply equally to all residing at the dwelling, “[b]ecause this instruction will apply to both invitees and co-occupants alike, we recede from Hedges to the extent that Hedges does not require a middle-ground instruction for invitees.” Therefore, if a woman is being battered by her visiting boyfriend (an invitee) she must retreat from his attack but she need not flee her home. Certainly, the castle doctrine remains fully intact with respect to trespassers and other noninvited or unwelcome persons: no retreat is required.
The court concludes the Weiand opinion by firmly stating, “[W]e hold that there is no duty to retreat from the residence before resorting to deadly force against a co-occupant or invitee. . . although there is a limited duty to retreat within the residence to the extent reasonably possible.”
Although the Weiand opinion extends greater protection to women, and indeed, anyone, attacked in their own home by a family member, abused women still face two or three legal disabilities under our self defense laws that must be addressed.
The Weiand case only resolves part three of the self defense standard: the duty to retreat. Judicial recognition of the validity of battered spouse syndrome resolves part one of the test; the reasonableness of a defendant’s belief that harm was imminent. However, part two of the test, that the amount of force used must proportionate to the threatened harm, leaves most beaten women unable to adequately defend themselves, and completely unable to claim self defense at trial. When attacked by a man, women, on the whole, lack the ability to respond proportionately to the harm he is inflicting upon her. Thus, women are at a fundamental disadvantage to claim self defense because they cannot respond to an attack with equal force.
Approximately one fourth of all murders committed in the United States stem from family battles.15 Over 50 percent of all murders occur between conjugal partners.16 Furthermore, while men and women are about equally responsible for killing their spouses, wives are more than seven times as likely to kill as a last resort, in self defense. The overwhelming majority of battering victims are women. Given these and other startling facts, it becomes clear that domestic abuse is an enormous problem in America.
Many women who kill their abusers are convicted of murder because of an inherent flaw in the law of self defense that stems from the law being written, and enforced, by men. A feminist perspective on the law of self defense should gain wider support and would address this fundamental inequality.
Because men wrote the law of self defense, the law has a tendency to disadvantage women. Based on the prototypical combat situation, with two men of roughly equal size and strength, the doctrine of equal force makes sense: If attacked by a man without a deadly weapon, another man may not justifiably defend himself with a deadly weapon. That would not be self defense with equal force. The doctrine of equal force evolved because the male defendant has a wide range of weapons and abilities from which he can select a degree of force proportionate to that of his attacker and adequate to defend himself. However, because women are generally physically smaller and weaker than men, the equal force requirement is impractical in the context of domestic abuse and self defense. “This rule ignores the woman who reasonably feels unable to protect herself without a deadly weapon, even though her husband-assailant is unarmed.”17
A woman who is being beaten by her husband, who is using fists and kicks to inflict non-life-threatening injuries upon her, cannot respond with equal force. She lacks the strength that is necessary to counterbalance the harm that a man is able to inflict on her. So, she grabs the next best thing—a gun—and shoots him. Responding to his abuse with proportionate force is not an option for her, so she must rely on the next best thing—a greater force.
Most battered women who kill their abusers must resort to a weapon. Out of 100 abused women who killed their assailants, 75 used a gun, knives were used 13 times, five women used a car, one a sledgehammer, one poison, one fire and the final four hired killers.18 In contrast, only three quarters of men who kill their female partners use any weapon other than their fists. Florida’s law of self defense must address this biological inequity that exists in our equal force doctrine.
The courts of other states have attempted to resolve the equal force doctrine by permitting a woman to use a weapon against an unarmed attacker.19 these states allow an attacked woman to strike back with force that is proportional and reasonable, not identical. But Florida courts have not addressed this problem with the equal force doctrine. In this respect, Florida courts must move toward the position held by the majority in this country. Perhaps in recognition of the inadequacy of this state’s self defense laws to battered women, between 1992 and 1999 23 Florida women who were imprisoned for killing their fathers, spouses, or boyfriends have been granted clemency.20
Most importantly, after Weiand v. State, it is possible for a woman to defend herself in her own home by killing her attacker—any attacker.21 removing the absolute duty to retreat, battered spouse syndrome now has legal “teeth” in Florida. The next step will be for the court to recognize the practical impossibility that the equal force doctrine is to most women and remove that weapon from the hands of their attackers. q
1 See Weiand, 732 So. 2d 1044.
2 Dr. Walker is one of the foremost authorities on battered spouse syndrome. Her research on the subject prompted the New Jersey Supreme Court to accept the syndrome as valid science in State v. Kelly, 97 N.J. 178, 193 (N.J. 1984), one of the first, and leading, cases to recognize the merits of the battered spouse syndrome defense.
3 See Weiand , 732 So. 2d at 1048 (emphasis added).
4 Weiand, 701 So. 2d 562 (Fla. 2d D.C.A. 1997).
5 See State v. Kelly, 97 N.J. 178, 193-94 (N.J. 1984).
6 Hawthorne, 408 So. 2d 801, 806–07 (Fla. Dist. Ct. App. 1982) (holding that the trial court improperly excluded Dr. Walker’s testimony and remanding for a new trial); rev’d on other grounds by 470 So. 2d 770 (Fla. Dist. Ct. App. 1985). Upon remand, the trial court concluded that, although Dr. Walker was an expert on battered spouse syndrome, the methodology of Dr. Walker’s research could not “permit her to draw any conclusions from the facts of this case,” and did not admit her testimony. 470 So. 2d at 773.
7 S ee Michael A. Buda & Teresa L. Butler, The Battered Wife Syndrome: A Backdoor Assault on Domestic Violence , 23 J. Fam. L. 359, 373 (1984-85) (“[n]o American court has recognized [battered woman syndrome] as existing outside the realm of established self-defense rules”).
8 See Joan H. Krause, Of Merciful Justice and Justified Mercy: Commuting the Sentences of Battered Women Who Kill , 46 Fla. L. Rev. 699, 711 (1994).
9 Weiand v. State , 732 So. 2d at 1049.
10 See generally , 67 A .L.R. 5th 637 (1999) (including a list of states that accept the castle doctrine exception, as well as those states that do not).
11 See State v. Hickson, 630 So. 2d 172 (Fla. 1993) (holding that expert testimony regarding the existence of battered spouse syndrome is admissible); also Rogers v. State, 616 So. 2d 1098 (Fla. Dist. Ct. App. 1993) (declaring that battered spouse syndrome has gained wide acceptance in the relevant scientific community as a matter of law, and whether evidence of it is appropriate need not be determined on a case by case basis). On this basis, Rogers implicitly overruled Hawthorne v. State, 408 So. 2d 801. See supra note 6.
12 There is no reported Florida decision during this period where battered spouse syndrome was the basis of a successful defense for a woman who killed her abuser. However, Florida courts did allow evidence of the syndrome to buttress a defendant’s claim of self defense. See generally Fla. R. Crim. P. 3.201 (procedural rule of notice of defendant’s intent to plead battered-spouse syndrome).
13 Buda & Butler, supra note 7, at 373.
14 See 165 So. 2d 213, 214–15 (Fla. Dist. Ct. App. 1964).
15 See Buda & Butler, supra note 7, at 359.
16 See id.
17 See Buda & Butler, supra note 7, at 376.
18 See Maryanne E. Kampmann, The Legal Victimization of Battered Women , 15 Women’s Rts. L. Rep . 101, 109.
19 See Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in current Reform Proposals , 140 U. Pa. L. Rev. 379, 417-19 (including a table of (then) current state laws of self-defense and whether they require “equal” force).
20 See Margaret Talev, 6 Women Receive Clemency in Deaths , Tampa Trib., Dec. 30, 1998, at 1.
21 In the year or so since Weiand was decided, Florida District Courts of Appeal have remanded two separate cases for retrial on the basis that the original jury instructions did not comport with Weiand ’s holding of a limited duty to retreat. See Kelly v. State, 1999 Fla. App. LEXIS 17257 (Fla. Dist. Ct. App. 1999) (woman attacked in her home by another occupant of the premises); Cox v. State , 739 So.2d 1279 (Fla. Dist. Ct. App. 1999) (man attacked by a co-occupant of his premises).
Douglas A. Orr is a litigation associate with the Naples office of Stamford, Connecticut based Cummings & Lockwood, P.C. He received his B.A., magna cum laude, from Seton Hall University, J.D. from Rutgers Law School-Newark, and M.A. in English from Rutgers University.