Virginia’s Self-Defense Law Lets Down the Battered Woman

 

This guest post is from Jordan Hodge, Regent Family Law student and 2021 winner of the Leroy Rountree Hassell Writing Competition for her article entitled "He Had It Coming: The Failure of Virginia’s Self-Defense Law When a Woman Defends Herself," to be published in the Regent University Law Review:

 

In Virginia, if you want to tell the court you acted in self-defense, you must prove two things: (1) you reasonably feared death or serious bodily injury, and (2) your attacker made an overt act that created imminent danger of that death or serious bodily injury.  This is all well and good for you and me generally.

 But this defense is incredibly difficult for a battered woman when she defends herself in a moment of relative calm.  She can show that she had reasonable fear for her life, but the overt act requirement poses an insurmountable obstacle for her if she defended herself while her batterer is sleeping, watching TV in between punches, or returning from a bathroom break.  Because she is not being attacked in that moment, she cannot show an overt act by her batterer and thus, she does not have a viable self-defense claim.

Virginia could make this defense accessible to a battered woman by requiring her to show that the circumstances surrounding her act would make a reasonable person in the battered woman’s position fear impending death or serious bodily injury.  This is still an objective standard to balance out the subjective reasonable fear element, but it takes into account everything that brought the battered woman to the point of self-defense and helps to dispel common myths about her.  Those myths include such explanations for her inaction of self-defense as “she wants to stay;” or “it must not be that bad if she doesn’t leave;” or “the battering will end if she just leaves.”  None of these are a truthful analysis of why battered women do not break the cycle of violence by leaving.

A battered woman is not crazy.  She does not wake up one day and calmly decide to take a life.  She is hurting, alone, and afraid.  She takes matters into her own hands because she believes she has no other choice.  A woman who has survived such trauma deserves to have her experiences included in her legal defense when she defends herself the only way she knows how.