Jahrbuch für
Recht und
Ethik
Annual
Review of
Law and
Ethics
Volume 2 (1994)
B. Sharon Byrd:
Putative Self-Defense and Rules of Imputation. In Defense of the Battered
Woman
This article attemps to provide a good defense for battered women who kill their sleeping husbands, particularly in cases where it is judged that she was mistaken in her assumption of the need to exercise self-defense. Proceeding from the distinction between the imputation of an act to an actor (I) and the imputation of blame to an actor for criminally prohibited conduct (II), the article moves on to a discussion of the relevance of mistakes as to justifying circumstances under the criminal law. Although some attention is given to the theoretically sound solution to the problem raised by the unknowingly justified actor, primary emphasis is placed on the putatively justified actor. The argument is advanced that the false assumption of justifying circumstances negates the imputation of wrongful conduct to an actor, rather than negating the imputation of blame to him for his wrongful conduct. Accordingly, criminal liability can only attach to an individual acting in putative self-defense, for example, if that individual was negligent for making the mistake (III). The standard for judging negligence in the United States is that of the so-called "reasonable person". A great deal of discussion in the U.S. scholarly literature has been revolving around the question of whether an "objective" (the average person) or "subjective" (an individual with the personal characteristics of the defendant) standard of reasonableness should be employed when determining whether an individual acted reasonable and thus non-negligently. This article argues for a "subjective" standard for the criminal law, as opposed to an "objective" standard, which is claimed to have more relevance for tort law (IV). Finally, the claim is made that a battered woman who kills her sleeping husband should be given the benefit of the self-defense justification under the U.S. law approach to self-defense. If the woman is mistaken as to the need to exercise self-defense, then wrongful conduct should be imputed to her only on the basis of whether her mistake was subjectively unreasonable and thus negligent (V).
17.04.98
Table of Contents Volume 2 (1994)