Self defence is not a legal option for women facing male violence

Two great resources on the law, and self-defence (mitigation/defence) when applied to women, both for rape and domestic violence.

The laws are made for  men, by  men. They do not serve women, particularly within the context of lethal self-defence (or even rape). You only have to know about Marissa Alexander’s case for example, but many others as well.

Generally within UK/Australian (and many other countries’) law, the defence of self-defence (as a mitigating circumstance for homicide/manslaughter) is on a like-for-like weaponry basis, plus a reasonable belief that yourself or others nearby, are in danger of death or serious injury. It does not factor in that the ‘average man’ is generally larger, heavier, and more fight-experienced than the ‘average female’—an oversight that is not overlooked in something like the men’s sport of boxing, where opponents are matched primarily on weight. The only ways that most women can gain the upper hand against most males, is by ‘out-weaponing’ the male, or by a pre-emptive or surprise attack (usually both). The like-for-like weaponry is if; he has a knife, you can have a knife; if he has a gun, you can have a gun. All very ‘neat’, but in reality, how often does this happen? If say, he has a knife, and you have a gun, then it is deemed not a case of self-defence. If you are in fear for your life at that moment, do you say “hang on a minute, I had better get a knife and make this a ‘fair fight'”?

What is an excellent point in both these resources, is that the additional factor of ‘past history’ and not taking the final incident as a stand-alone incident is raised.

“I don’t understand how she can have a duty to retreat when she gets into the car,” he said. “She’s not dressed. She doesn’t have a cell phone. Her baby is inside the house. So how can there be a duty to retreat? If she retreats and he kills the baby, she’s guilty of failure to protect. Connecticut prosecutes those cases.”

“What they are doing in this case is they are applying the same standard to Cherelle as they would do to a male,” he continued. “What I’m saying is it is a completely unrealistic standard. There is no duty to retreat issue here.

and

“You hear that all the time in these cases,” Stark said, “because juries don’t get the idea that this is a course of conduct. It’s not an episodic issue. It’s not a question of a single event taken out of its historic context. When she is responding to him, she is not responding to the threat that morning. She is using what I call the ‘special reasonableness of battered women.’ She knows everything that has come before that he has done. She knows him better than anyone else knows him. She knows what he is capable of. And he had taken the baby. He had kidnapped the baby. She went after him in the car. It wasn’t just a theoretical risk to their child.”

The article in Salon, is a great overview of the key issues. But for a fuller account, the article for the Miami Law Review, is excellent, certainly worth reading the 30 pages. I love the contextual legal/societal sexism analysis, and how that is both put into practice and also at the very intention of the legislation (for the male standard of defence only).

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12 thoughts on “Self defence is not a legal option for women facing male violence

  1. I don’t understand legal male-speak at all. On average, would I be better having the jury judge my case if I was ever on trial or is a judge better? I feel like it would be easy for misogynist types to go through jury screening without showing off their misogyny. I only know this little bit of legal stuff bc my sis who took law told me.

    Liked by 1 person

  2. Mens’ Male Supremacist legal system is designed to be obtuse and hard to understand because this is how men maintain their male right (sic) to claim because we are males we not women are the only ones capable of subjective thought and neutral thinking!

    Men created their laws to protect men from other men’s crimes – women’s lived experiences weren’t included in mens’ laws because women according to men aren’t human!!

    This is why mens’ law continues to claim that any woman who kills a male or harms him cannot claim she acted in self-defence because as author of above article succinctly states – self defence is defined as one wherein two males of equal power and weight are engaged in mutual combat.

    Second Wave Radical Feminists researched and analysed mens’ legal system and recognised the law is mens’ law designed and created to protect men not women.

    This is why rape continues to be defined from the male perspective – not womens’ and girls’ lived experiences. Hence only men (obviously) can define what does and does not constitute real male sexual violence against women and girls.

    ‘Failure to protect’ is another example of how men constantly create new lies (oops new truths) to maintain male oppression over women. Women are blamed for ‘failing to protect their children from the violent father because the violent father must never be held accountable for his choice and agency. Women however have so much mythical choice and agency they can magically protect their children at the same time as restraining the violent male/ex male partner!!! Failure to protect was created by the male legal system as a clever method of rescinding women’s success in finally recognising women are not to blame when they cannot protect their child/children from the violent male/ex male partner, because he is accorded immense socio-economic power and control over her. So men swiftly acted to maintain male domination over women by claiming ‘failure to protect’ is gender neutral and ensures women and men are treated equally! (Yes and moon is made of green cheese if we believe men’s lies). Fathers are not routinely held accountable for failing to protect their child/children from being subjected to his vicious and all too often sadistic male violence. Instead the father is excused his accountability because he is depressed; unemployed; is a male! Yes I know this is contradictory but then most of mens’ laws are contradictory – one law for men and a wholly separate law for women which is defined by men in order to maintain male oppression over all women.

    A Law of Her Own: The Reasonable Woman as a Measure of Man by Caroline A. Forell and Donna M. Matthews succinctly analyses mens’ law and how men continue to proclaim ‘mens’ laws are gender neutral.’ Essential reading in order to gain a better understanding of mens’ laws. Also Women’s Lives, Mens Laws by Catharine A. MacKinnon is another excellent book debunking ‘myth of gender neutrality within mens’ legal systems.’

    Remember the male definition of human is man and his lived experiences – quoting from Equality With A Vengeance by Molly Dragiewicz: ‘womens’ experiences are marginalised and mens’ interests are equated with the general public interest.’ …Men normally occupy the unmarked ‘generic’ standard for humanity while women are marked as ‘other,’ While men’s interests and perspectives are often taken as neutral, women’s are marked as biased.’ Therefore men are the default human species and it is their male experiences and male lives which are supposedly the definitive human experience!

    Liked by 2 people

    • Yes, the ‘failure to protect’ is a particularly nasty legal fashion, that has really gotten ground in the last five to ten years, particularly in the UK—but clearly various states in the US are fully onboard that misogynist bandwagon.

      It is a particularly nasty law that, as you say, only ever seems to get flung at abused women ‘failing to protect’ children from the violent partner. In my world view, those with a duty to uphold the law, the police, should be the ones charged with this when they continually fail to arrest the (male) perpetrator after numerous complaints from the female victim. That, IMHO, is classic ‘failure to protect’.

      Liked by 4 people

  3. Here is another example of a law brought in, supposedly to help women (in securing longer convictions if the foetus died due to a beating, or as an additional charge to the main homicide, if the woman was murdered).

    But hey! These ‘feticide’ laws are NEVER used for that, instead, locking up pregnant women for spontaneous abortions (“miscarriages”), or if the woman has a drink/drug problem, regardless if she is clean or not.

    http://www.pri.org/stories/2015-03-13/indiana-jury-says-purvi-patel-should-go-prison-what-she-says-was-miscarriage

    Liked by 2 people

    • There’s an excellent book on male reproduction – and the feminist writer focuses on fact a biological father’s lifestyle such as if he consumes alcohol; is overweight; is/was a drug addict; does have a negative impact on the foetus. But of course men always blame women for supposedly not ensuring the foetus they are carrying is born healthy. So male bodies are not invulnerable machines despite men’s claims.

      Exposing Men: The Science and Politics of Male Reproduction by Cynthia Daniels.

      ‘Failure to protect’ was created by men in order to make the spurious claim: ‘the law is gender neutral!’

      Excellent points concerning who are the ones really accountable for ‘failure to protect’ and it is the male controlled police forces who supposedly exist to uphold the law. Oops I forgot police only exist to protect men from other mens’ violence not preventing/protecting/safeguarding women from violent male perpetrators.

      Liked by 3 people

      • Ah yes, I had forgotten about paternal factors (and you have to wonder about sperm condition when 70-80yo dudes impregnate younger women).

        The other law that is frequently used against women (in the UK) is the “perverting the course of justice”, used primarily AGAINST rape victims, when a charge against the perp fails (and given there is only a 7% conviction rate on average in the UK, that is a lot of scope to go after many women). The cops/CPS bring PTCOJ charges when: she decides against testifying, or plain old prosecution failure, or even if she had reported a rape in the past (the logic of ManLand, that women can only ever be raped once?!).

        Liked by 2 people

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